jurisprudence

TO THE ISSUE OF SUBJECTS OF THE GOVERNMENT

Ishchanova Gulnar Tulemisovna,

The associated professor of Theory of State, Law

and Constitutional Law Сhair

Of the Kazakh National Pedagogical

University named after Abay,

Almaty, Republic of Kazakhstan

gulnar_tore@mail.ru

87779994379

Speaking about dialectics of coincidence of dominating entity and subordinated entity in the democratic state, it is necessary to note also that it is shown both in individualal, and in the institutional plan. It is impossible to disagree with A.F.Cherdantsev in it [1, page 6].

Each citizen of the state - the individual is not only a subordinated entity, but it has the right and should represent itself as the partial initial carrier and a power source. It is expressed in elections, control over activity of state authorities, institutes of direct democracy. The same it is possible to tell and about separate institutes of the power. Each of them in one relation acts as the subject of the power, and in other - as object of the power. «Subjection to the people of any institute of the power can be shown not only at institutes of direct and representative democracy, but also in subordination of all bodies to the law as to the spokesman of the general will of the people» [1, page 6].

At the moment in jurisprudence there is no consensus concerning concept and essence of such legal categories as «state authority» and «public authority».

Some authors consider that «the state authority is the citizen or the group of citizens allocated with state and imperious powers, authorized by the state on implementation of its tasks and functions and operating in the order established by the state» [2, page 47].

Other theorists understand as state authority «the individual or the organized group of individuals allocated with the right to make imperious decisions» [3, page 230].

The third authors define state authority, proceeding from concept of government, as a government component, being formed in the established lawful order and allocated with the state and imperious powers necessary for implementation of functions of the government [for 4, page 136].

Very similar positions concerning these categories adhere to M V.Baglay and B. N. Gabrichidze. In their opinion, the body of the state is the compound and at the same time rather isolated, independent part of government which participates in implementation of functions of the state and operates from his name and on an assignment, possesses state and imperious powers, has the corresponding competence and structure, applies inherent in it (body) organizational and legal forms of activity [5, page 134].

According to the author, the body of the state is a component of government which has own structure, the powers of a domineering character defined by the law on management of the concrete sphere of public life. The made definition covers the most essential signs of the considered phenomenon.

It is obvious that concepts «state authority» and «public authority» are very universal. Therefore, there is a possibility to allocate the general signs of such bodies: establishment in the special constitutional regulated order; investment and implementation of imperious powers; action on behalf of the state, but not from individuals; possession area of jurisdiction of own competence; performance of socially significant functions; relative independence in system of the government (public authorities). At the same time, it is necessary to distinguish these concepts.

The comparative analysis even a small amount of a standard material shows, as in legal literature, and directly in normative legal acts categories «state authority» and «public authority» are quite often differentiated, and, sometimes in these concepts the various sense is put. Moreover, for designation of considered concepts use also other terms: for example, governing body, state body, body of board, etc. In some regulations the type of state authorities of the power in the form of legislative, executive, judicial or special is concretized at all.

Considering that used concepts are rather close according to the contents, we consider expedient and we suggest using in normative legal acts of Kazakhstan only one of terms - public authority. In that case law-enforcement bodies, carrying out the functions, will interpret more precisely legislative norms and it is correct to define a circle of subjects to which this or that legal instruction is turned.

In spite of the fact that public authorities have common features and consequently are similar, they are not uniform and homogeneous for the being, and have also differences depending on the status, subjects of competence and that sociopolitical role which they play in the state, society as a whole.

Reflecting on concepts «state authority» and «public authority» the author logically approached to a question of subjects of the government.

Subjects of the government first of all are its supreme bodies which, are established directly by the Constitution of the Republic of Kazakhstan. It is remarkable, what even the mention of state authority in the text of the Basic law gives it the constitutional status - the status of constitutional and legal category.

According to item 3 of Art. 3 of the Constitution of the Republic of Kazakhstan: «Nobody can appropriate the power in the Republic of Kazakhstan. Assignment of the power is pursued under the law. The right to speak on behalf of the people and the state belongs to the President, and also Republic Parliament within its constitutional powers. The government of the Republic and other state authorities speak on behalf of the state within the powers delegated by it» [6].

Thus, the government in the Republic is carried out the President, by Parliament, the Government, courts of the Republic of Kazakhstan.

Proceeding from provisions besides item 3 of Art. 3 of the Constitution of the Republic of Kazakhstan, we can conclude that subjects of the government can be both individual, and its joint bodies.

Really, the individual public authority can be presented by the specific citizen of the Republic of Kazakhstan - the President of Kazakhstan or mayors (the head of executive body of this level – the author) to area, the judge or the prosecutor, etc. In turn, joint authorities are expressed by a group of individuals (citizens): speech in this case goes about Parliament, about the Government, about vessels, law enforcement agencies of the country.

Despite the large number and, therefore, a versatility subjects of the government considered by us above, though are independent, don't exist is separate or separately. On the contrary, they form a certain logically explained system of public authorities - system of the government which, certainly, deserves the separate theoretical and legal analysis.

As the author believes, it would be incorrect to consider legal category of the government in its narrow value as system of state authorities and the individuals invested by the state and administrative powers, as political domination and as management. In Ozhegov S. I. dictionary it is said that management is an activity of authorities, i.e. distinction between management and the power [7, page 907] is carried out. Management in such cut appears the outer and dynamic side of manifestation of the power. Despite distinctions of the given views, representatives of scientific and legal thought are unified in that those terms «power» and «management» are not identical, and in our opinion, they are to unacceptably and incorrectly reduce the power in narrow sense of this word to management.

As the government in narrow sense of this term it is impossible to consider both the administration, and the individuals invested by the corresponding state and administrative powers for they are carriers, subjects of the power, but in any way the power state. Narrow value of this category inevitably demands differentiation of the government and its subjects. Besides, it is possible that the power state can't be reduced only to domination of one of subjects, so to speak, social interaction, as it only one party of this power. Other party of the government by all means should be shown in submission: the government as one of versions of the social power arises and is realized at interaction of subjects of domination and submission.

Also it is very difficult to agree with a view of the government as for a leadership or as for activities of chiefs for implementation of the functions for these phenomena is rather not the power, and only one of external manifestations. Besides, the power in any activities for the management of people including in a set of other leadership factors, for example, experience and authority of the head, his individual qualities is shown, etc.

As to system of state authorities, it represents not the government in accurate and narrow sense of this term, and set of its subjects the activity of which carry out the relevant power.

Therefore, considering the above-stated arguments concerning understanding of the maintenance of the government, it is obviously possible safely and reasonably using views of it as for the right, force and will; as for a freedom of action and orders; as for ability and possibility to dispose someone and something to influence deciding on destinies, behavior and activity of people by means of different methods and means.

List of references:

1. A.F.Cherdantsev. Government and its justification//News of higher education institutions. Jurisprudence. - 1992, No. 2.

2. Kozlova E.I., Kutafin O.E. Constitutional law of Russia. - Moscow, 1999. - 453 page.

3. 60 Constitutional (state) law of foreign countries. General part// Responsible editor B.A.Strashun. - Moscow, 1996. - 568 page.

4. 61Strekozov V. G., Kazanchev Yu.D. Constitutional law of Russia. - Moscow, 1997. - 304 page.

5. Gabrichidze B. N., Yeliseyev B. P., Chernyavsky A.G. Constitutional law of modern Russia: The textbook for higher education institutions. - Moscow: Publishing house «Business and Service», 2001. - 490 page.

6. Constitution of Republic of Kazakhstan / IS Paragraf.www.zakon.kz.

7. Ozhegov S. I., Shvedova N. Yu. Explanatory dictionary of Russian. - Az publishing house, 1992. - 1139 page.