In Russia, the first mention of them in the 90s. A clearer understanding of them only since 2004.
1. Public services in Europe originated in Europe. One of the main ideologists is Leon Duguit ( Saldarism theory ). Public services (services) - (in accordance with the French approach) is any mandatory activity carried out by a subject of public law (public entity) or under his leadership in the general interest. This concept influenced countries such as Portugal, Italy, Spain, and through them the legal systems of the colonies. AT Latin America this concept exists.
2. Life support concept (Germany, Ernst Forstkoff). Individuals have needs, the satisfaction of which is of a vital nature (it is impossible without them) => public services are those services that ensure the vital activity of the population. But sometimes the state can transfer certain powers to the private sector.
3. The concept of public management and universal services (Anglo-Saxon system, Great Britain). There is no division into private and public law, there are no branches. The state, within the framework of this concept, borrows the mechanism of activity and management developed in the private sector, respectively, if the private sector is developed, then the state too. The concept of universal services - the state must ensure the provision of a certain set of public services according to established minimum standards (universal services).
All these different approaches within the framework of the formation of the EU and the common market have led to the development of a common denominator. General concept (averaged) general services .
In Russia, there is no legislative concept of public services. Narrower categories are developed separately: state and municipal services.
All services that went beyond the state and municipal, automatically fell into the sphere of private regulation.
Art. 6 BC: state (municipal) services - services provided in accordance with the state (municipal) task by state municipal bodies, institutions, other legal entities.
State municipal task - This is a document that establishes requirements for the composition, quality, volume, conditions, procedure and results of the provision of public services. Those. task is an assignment to state (municipal) bodies, institutions and other legal entities to carry out any activity corresponding to public services and for which funding is allocated.
Decree of the President "On the system and structure" of March 9, 2004: definition of public services in relation to the federal level:
State services- services provided by federal agencies, other bodies, organizations subordinate to them, other legal entities in the field of education, healthcare, culture, social protection, and in other areas, provided free of charge or at regulated prices.
Federal Law 2010 "On the organization of the provision of state. and mun. Services” No. 210 FZ:
State (municipal) services- this is an activity for the implementation of the functions of executive bodies of state power, state extra-budgetary funds, CHI, carried out at the request of applicants. This law, it turns out, regulates ONLY the services provided by the AUTHORITIES (administrative services), i.e. does not regulate social services, unlike the Decree.
Signs of state municipal services:
1. their provision is a function of the state or municipality
2. the provision of such services is mandatory
3. implemented at the request of applicants, i.e. aimed at meeting the needs of the population
The Concept of Administrative Reform, approved by Decree of the Government of the Russian Federation No. 1789-r, focuses on improving the quality of public services and their accessibility to the population. According to the Public Opinion Foundation, currently over 70% of Russians negatively assess the activities of public servants in the provision of public services.
The category of public services has not been developed in Russian legal science. An analysis of the specialized literature allows us to identify the following approaches to the definition of "public services" and their differentiation from state and social services.
According to one position, public services are services provided by public authorities to each individual who applies for them.
Public services is a broader term that also includes services provided to an unlimited number of persons in order to satisfy the public interest. Authorities can only ensure their provision, and not provide them on their own.
The general criterion is the obligation of public authorities established by the Constitution of the Russian Federation and laws to provide services, to ensure their provision.
Public services have characteristic features. They are:
1) provide activities of a generally significant orientation;
2) have an unlimited range of subjects using them;
3) carried out by state and municipal authorities or other entities;
4) are based on both public and private property.
The first sign indicates that, regardless of the entity (be it a public authority, a municipal authority, a non-governmental organization) providing services in each specific case, the public authority is obliged to ensure their execution. In the case when there is no interest or opportunities for private capital in the provision of public services, the public authority must independently implement such a socially significant service (garbage, waste, water supply). When transferring the functions of an executor to other entities, public authorities must control the implementation of public services and ensure the rights of the population to receive them.
The answer to the question of the possibility of a complete refusal of the state to provide services in a certain area depends on the nature of the public service. If the provision of such a service is conditioned by the need to exercise the constitutional rights of citizens (the right to health protection and medical care), then the state does not have the right to refuse to provide it.
Services can be classified as follows. Public services (government services) include free services provided by authorized service providers to voluntarily applied interested persons in accordance with the law.
in accordance with the regulations and standards of public services provided through the use of state resources.
Public services include services free of charge for citizens, addressed to the whole society, performed by service providers selected by competition through the use of public funds and in accordance with the regulations for the provision of public services.
Public services include socially significant paid services for service recipients, the price of which is regulated by the state, provided by commercial organizations in accordance with the regulations of public services.
Finally, the public service is characterized by the following features:
1) it is a good that is individual, i.e. addressed to specific subjects;
2) it is voluntary, i.e. it turns out without coercion from the state, only at the initiative of citizens and legal entities;
3) optional character.
The developers of the draft federal law “On Standards of Public Services” adhere to the same concept, dividing public services into the sphere of public authority, which is obliged to provide them, and individual orientation2. A public service is an activity to fulfill a request or requirement of citizens or organizations for the recognition, establishment, change or termination of their rights, as well as obtaining material and financial resources for their implementation in the case and in the manner prescribed by law, establishing legal facts or providing information. on issues within the competence of the executive body of state power and included in the register of public services.
This definition considers public services in a narrow sense, excluding from the category of public services addressed to an indefinite circle of persons. The first approach seems to be more correct, since a clear regulation of services provided by public authorities to an indefinite circle of persons is very important in implementing the idea of a welfare state enshrined in the Constitution of the Russian Federation.
The above problems clearly demonstrate the need for a clear and systematic regulation of the provision of public services in order to ensure the implementation of the constitutional principle of the social state.
An analysis of the legal regulation of public services in a broad sense (that is, provided both to an indefinite circle of subjects and to specific recipients) at the federal, regional and local levels allows us to highlight the following problems.
1. Decree of the Government of the Russian Federation of July 28, 2005 No. 452 “On the Standard Regulations for the Internal Organization of Federal Executive Bodies” provides for the obligation for federal executive bodies to develop administrative regulations for the performance of state functions and the provision of public services, which determine administrative procedures, and as well as a list of the services they provide. It is also noted that the provision of public services should be carried out on the basis of standards of public services that establish the required level of their quality and accessibility.
However, the lists of services provided have not yet been developed, and the standards of public services have not been adopted. In the regulations on the relevant federal executive bodies and their administrative regulations, the public services provided are not structurally separated.
In addition, in order to really ensure the provision of services necessary for the population, it would be more correct to establish at the legislative level a single open state list (register) of services provided by executive authorities, including on a paid basis. Similar lists operate in Kyrgyzstan, Kazakhstan, and Moldova.
Listed services must meet predefined criteria; one should take into account the opinions of citizens and organizations - consumers of services, as well as public and professional associations expressing their interests.
2. The distribution of state functions by types of federal executive bodies does not at all mean the end of the administrative reform. With regard to public services, the next stage should be the selection of a block of services that could be transferred to state and non-state organizations. It is also important to develop criteria for evaluating the feasibility of such a transfer (increasing the efficiency of the transferred functions, increasing the degree of accessibility and quality of services provided), the criteria that non-state structures must meet, and determine the conditions for the transfer. The experience of the European Union convinces of the need to redistribute a part of public services: according to one of the latest reports of the European Commission, as a result of the introduction of competition in the sector of public services, the costs of end users have decreased.
3. In order to streamline the provision of public services by executive authorities and their institutions, it may be necessary to legislatively define the signs of classifying services as paid services, as is done in the legislation of a number of foreign countries. Such attempts were made in the draft federal law “On Standards of Public Services”: in addition to paying the state fee, service recipients provide for paid services provided to persons in connection with their entrepreneurial activities in order to cover the costs of their provision; in addition, it is proposed to introduce another type of service provided with a high level of quality (increased compared to the standard level of convenience and comfort or extraordinary performance).
4. An urgent and at the same time thoughtful development of the standards of public services provided for by the aforementioned Decree of the Government of the Russian Federation of July 28, 2005 No. 452 is necessary (including through a broad discussion of the provisions of the draft federal law “On Standards of Public Services”). It seems that fixing the mandatory minimum requirements for the standard at the federal level will guarantee all consumers of public services equal rights and opportunities to receive them, as well as the quality and accessibility of services. Subjects of the Russian Federation, based on their capabilities, will be able to increase this minimum.
In the meantime, the regulations developed by the federal executive authorities mainly regulate the procedure for considering citizens' appeals. The establishment at the legislative level of clear, systematized administrative procedures for the provision of public services would give the activities of public authorities a strictly legal, open and predictable character, and would also provide an opportunity to limit and eliminate arbitrary actions.
Closely related to the problem of standardization of services is the problem of the responsibility of officials for the improper provision of public services. In this regard, it may be useful to refer to the experience of foreign countries (for example, England, where there are legislatively approved standards and rules, an official can even be fined if a citizen complains about excessively long standing in line).
5. Currently, there is no clear understanding of the scope of powers assigned to the executive authorities of the constituent entities of the Russian Federation by federal legislation. There is a need for detailed regulation of the activities of the executive authorities of the constituent entities of the Russian Federation that implement public services. As one of the directions of such regulation, one can single out the expansion of the rights granted to the executive authorities of the constituent entities of the Russian Federation, giving them additional competence, sources of funding and additional responsibility. It is possible to compile a register of powers of public authorities of the constituent entities of the Russian Federation, on the basis of which it is possible to determine the list of public (state) services of executive authorities, as, for example, is done in the Novosibirsk Region and the Yamalo-Nenets Autonomous Okrug.
6. Regarding the provision of municipal services, it is necessary to note the vagueness of the wording in the definition of issues of local importance for each type of municipality in Federal Law No. 131. The law uses various terms: "organization", "providing conditions", "creating conditions", "participation", "providing", "provision of assistance". Attempts to interpret these terms can be very different, which ultimately makes it difficult to determine the content of mandatory municipal services in each specific case.
7. When evaluating the activities of the managers of budgetary funds allocated for the provision of public and municipal services, the following indicators should be used, among other things: taking into account the requests and needs of the public; ensuring the quality of services provided; the degree of satisfaction and opinion of the citizens who received the services; clarity of planned results.
There are the following regularities of the service economy:
- Opportunities for economic growth are primarily determined the state and development of public service sectors;
The human factor is turning into the main factor of economic growth;
The role of the state in the reproduction of labor resources and the formation of human capital is increasing;
New opportunities are provided for the implementation of macroeconomic theories through state regulation of the economy, including the service sector;
The nature of social needs is changing, more and more permanent needs appear, for example, maintaining health, preventing diseases, continuing education;
An active position of organizations in the sphere of public services is established in relation to the impact on consumers to form demand for their products;
Differentiation, individualization of the needs of the population, transition to long-term relations between the consumer and the producer of public services are being carried out;
The aggravation of cross-country competition requires the search for reserves to improve the efficiency of the functioning of the economy, including in the private and public sectors of public services;
Under the influence of the globalization process, there is a trend of typification (standardization) in the development of public services.
Public services can be divided into two groups:
1) public services for members of society, in the interests of the development of society as a component of the service sector;
2) services to individual strata, groups in the form of social assistance for the performance of household functions.
The essence of public services of the first group is determined based on their role in the formation of human capital, the main factor of production, and connects it with the totality of economic relations for the formation and development of human capital. Such a view of public services combines homogeneous activities on the basis of their focus on one result - the growth of the human capital of an individual, allowing him to use his labor potential more profitably, increasing income.
The most important components of human capital are health capital, education capital and cultural capital. The essence of public services at a deeper level is economic relations for the formation and development of education capital, health capital and cultural capital.
A feature of public services is their duality. In the process of providing public services, both consumption and accumulation occur simultaneously, and it is not possible to separate one from the other. Therefore, the costs of developing the sphere of public services are of an investment nature, as they ensure the accumulation of human capital.
Public services of the second group are more correctly called social assistance services to the population, consisting of financial, transport, household and other services to socially unprotected citizens to maintain a normal standard of living. These services are strictly individual and are intended for those groups and categories of people who need help from society, they are provided by social protection services of state and municipal governments in the form of individual social security services, social assistance, which compensates for the missing functions of households.
The considered groups of public services differ in their economic nature and the way they influence the level of welfare of society (Fig. 1).
Rice. one. Differences in the economic nature of public services
In particular, the social sphere includes social security, social assistance in the form of individual public services and activities for the provision of collective public services. This approach made it possible to single out in the structure of the social sphere:
The sphere of public services (collective public services) as part of the sphere of services;
The sphere of social assistance services for the performance of household functions (individual public services) as a component of the non-productive sphere;
Social assistance in monetary and commodity forms.
Introduction
Chapter I General legal characteristics of public services 14
1.1. Public services as a function of the modern welfare state 14
1.2. The concept and legal nature of public services 37
1.3. Essence, content and structure of public services 54
Chapter II. Classification and types of public services 64
2.1. Main criteria for the classification of public services 64
2.2. Public services as a kind of public services: concept and features 71
2.3. Correlation of public services with other types of services 101
Chapter III. The mechanism of legal regulation of public services in the Russian Federation 114
3.1. Forms of legal regulation of public services 114
3.2. Principles of legal regulation of public services 127
3.3. Improving the legal regulation of the provision of public services in the Russian Federation 143
Conclusion 175
List of used normative sources and scientific
literature 178
Introduction to work
Relevance of the research topic. The current stage in the development of Russian statehood is characterized by a change in the role of the state in society, when the main purpose of the state is not to influence the power, but to provide services. The recognition that the state was created to provide services to citizens, that meeting the needs of citizens is the main goal of the existence of the state ensures the priority of human rights as the highest value that determines the meaning and content of the activities of state power.
"The rights of the individual to positive services from the state" 1 was noted as the most important in the system of human rights and freedoms by B. A. Kistyakovsky, the great Russian scientist - statesman of the last century, but only today their provision is becoming one of the main duties of the state. The development of a course towards the comprehensive provision of the rights and legitimate interests of citizens, the further socialization of the state, associated with the rethinking of its functions in accordance with the trends of social development, give the issue of providing public (public) services new and more important.
In modern Russian law, public services are recognized as one of the leading categories and their importance, especially in the context of administrative and municipal reform, is increasing every year. The modern market of public services is characterized by its growth trend and rapid diversification. The variety of services that are able to meet the individual and collective needs of the individual, society and the state, there is no doubt about the need for their legal regulation. This is evidenced by the rapidly developing last years legislation on services, which establishes the types of services, the subjects of their provision, provision and receipt, are strengthened
"Kistyakovsky B. A. Philosophy and sociology of law. St. Petersburg: RKhGI, 1998. P. 84.
legal guarantees of the rights and legitimate interests of citizens and legal entities when receiving services.
Meanwhile, despite * the importance and doctrinal significance of public services, Russian legislation still lacks a detailed definition of a public service. Among scientists, there is not only a unanimity of opinion regarding the types of services or the system of their legal regulation, but even a common understanding of the essence of a public service, a generally recognized conceptual apparatus. services, and public services, and public services, and social services.The theory of public services in domestic legal science is not sufficiently developed.Legal regulation of public services is carried out directly in the course of building a system for their provision, without prior proper scientific justification of the categories and tools used.
In such conditions, theoretical studies conducted with the aim of improving the legal basis for the provision of public services become especially relevant. Firstly, this will make it possible to arrive at essentially important generalizations that can most deeply reflect the nature of the phenomenon under study; secondly, it will reveal a real picture of the impact on social relations by a different set of legal means. Both of these factors seem to be extremely significant for understanding not only the essence of public services, but also their interconnection with various legal phenomena.
The relevance of the study of the legal nature of public services is currently determined not only by the indicated circumstances, due to which services have become one of the leading categories in domestic jurisprudence, but also by the rapid development of relations arising in connection with the provision of services. Since the general concept of a service is quite
blurred contours, both in doctrine and in positive law, are interpreted by scientists and lawyers in different ways and have many semantic shades, in the near future the relevance of the topic, even with an increase in the number of studies on services, will not be exhausted.
The degree of scientific development of the topic. Since the topic of the dissertation research relates to the field of theoretical and legal science, the author used general theoretical scientific works on the problems of the theory of state and law of the following scientists: N. F. Aleksandrov, N. N. Alekseev, S. S. Alekseev, G. V. Atamanchuk, M. I. Baitin, D. N. Bakhrakh, A. I. Bobylev, F. M. Burlatsky, A. B. Vengerov, "A. IT. Glebov, P. P. Glushenko, Yu. P. Grevtsov , A. I. Denisov, A. P. Dudin, G. Jellinek, I. A. Ilyin, S. V. Kalashnikov, D. A. Kerimov, N. M. Korkunov, A. I. Kosarev, R. 3: Livshits, E. A. Lukasheva, A. V. Malko; G. V. Maltsev, O. V. Martyshin, M. N. Marchenko, N. I. Matuzov, L. A. Morozova, V. S. Nersesyants, P. I. Novgorodtsev, D. S. Petrov, V P. Salnikova, L. I. Spiridonov, V. V. Subochev, A. M. Syrykh, N. N. Tarasov, Yu. G. Tkachenko, B. N. Topornin, R. O. Khalfin, A F: Cherdantsev, B. B. Cherepakhin, V. A. Chetverny, L. von Stein, L. S. Yavich.
The theoretical and applied basis for the analysis of the service phenomenon are the works of such researchers as Ml I. Braginsky, A.F. Vasilyeva, V.V. Vitryansky, R.A. Gavrilyuk, E.V. Gritsenko, A.V*. Drozdova, T. V. Zhukova, A. N. Kostyukov, S. A. Kirsanov, N. V. Kiseleva, O. A Krasavchikov, Yu. M. Kozlov, S. E. Naryshkin, A. V. Nesterov, A F. Nozdrachev, A. T. Oshurkov, P. S. Patsurkivsky, N. V. Putilo, E. G. Reshetnikova, A. M. Sergeenko, M. G. Smirnova, Yu. V. Talapina, L. K. Tereshchenko, Yu. A. Tikhomirov, T. Ya. Shchepin, A. V. Yatskin.
Object of study are legal relations that arise in the process of regulating the provision and receipt by citizens and legal
public service providers to satisfy their rights and legitimate interests, as well as ensuring some of their duties. At the same time, the dissertation's attention is focused on the theoretical aspects of public services, delimiting from detailed analysis industry legislation.
Subject of research are the legal nature, content and essence of public services, their. main features and types; limits, forms and principles of legal regulation.
The purpose of the study search, analysis and identification of essential features of a public service as legal category, constructing its theoretical and legal definition, isolation and delimitation from related concepts, classification and understanding of the relationship between different types. The second most important goal is to determine the principles and methods of optimization, legal regulation of the provision of public services.
Within the framework of the goals set in the dissertation work, the following tasks are solved:
Analyze the legal nature of public services, their role and significance in the modern Russian legal system;
Define legal concept public service, to reveal its essence, content, main features;
Based on the analysis of species characteristics, propose a classification
tion of public services, to identify the relationship of public services with other
types of services;
Analyze the current state of the legal regulation of public services, propose the main directions for its improvement;
Formulate proposals aimed at improvement
legal framework for the provision of public services in the Russian Federation.
Methodological basis researches constituted a comparative legal method, a dogmatic "method, that is, a study of the dogma of law, based on the provisions of the current positive law, legislation and by-laws, with the privileges of lexical, systematic and authentic interpretation; as well as the dialectical method, including methods of analysis and synthesis, induction and deduction, historical, systemic, functional approaches.
The empirical and source study base of the study was the Constitution of the Russian Federation, acts of legislation and law enforcement, as well as sources of international and foreign law.
Scientific novelty of the dissertation research. The dissertation is one of the first works in which the general theoretical and practical problems of providing public services in the Russian Federation are comprehensively investigated. Based on a deep analysis of the legal nature of public services, the identified criteria and principles of legal regulation of their provision, a holistic concept of the legal category "public service" is proposed.
The dissertation for the first time carried out a legally significant classification * of public services, which made it possible to identify the ratio of various types of services, to clarify the methodology for their regulation. As a result of the study of the system of normative acts regulating the provision of public services, a number of conclusions were made to improve the legal regulation of the provision of public services, which are important for theory and practice.
The following new provisions or provisions containing elements of novelty are submitted* for defense:
1. A public service takes place where there is a public interest in satisfying the private interest. Combining personal, public and state interests, this category is based on the dialectical unity of the individual, society and the state. Modern pony
The public service mania encompasses all activities carried out in the interests of society as a whole under the auspices* of state power. The provision of "public services" should be seen as a function of the modern welfare state.
2. A public service can be considered as a legal relationship between
I am waiting for the state or other structures under its tutelage with one hundred
rona, and citizens or legal> persons - on the other. Wherein
Its specific features are as follows:
it is always a set of actions or activities aimed at meeting the needs of a person of public interest;
the presence of a certain result that does not have a material expression, but is a use value.
The legal concept of a public service can be formulated on the basis of summarizing the above characteristics: a public service is a purposeful activity expressed in the rules of law, guaranteed by the state to satisfy the rights and legitimate interests, as well as the performance of certain duties of an individual or legal entity initiating it.
Legally relevant^ classification of public services suggests the following grounds for classification:
by entities providing services: services of the public sector (including the municipal sector) and the non-public sector;
by entities receiving services: services aimed at satisfying the interests of individuals, services aimed at satisfying the interests of legal entities and services aimed at satisfying both individuals and legal entities. At the same time, it is necessary to single out the subject receiving the service and the subject consuming the good as a result of receiving the service;
by spheres of public relations: social, economic and civil services, services that ensure public safety;
on; orientation; public services to ensure subjective rights; legitimate interests or obligations;
according to the criterion * of necessity for the consumer, it is possible to single out the main ones; and
5. Russian legislation* usually uses legal
construction "public service" - and not "public service" ^ what about
clarified by the goals of a particular? regulation: This is a witness
There is: firstly, about the underdevelopment at the present time in the Russian
Federation of Public Service Theory, secondly, about the high proportion of state
essential. services in the array of public and their weighty nature in the legal
space modern state; and; third, about need;
deeper attention of scientists to public services" as a right
howling category;
A public service is a financed one; at the expense of the relevant budget, established by law; pertaining to powers; competent state executive authorities; mandatory for them law enforcement activities aimed at realizing the rights or legitimate interests of the individual or legal entity that initiated it, as well as ensuring the fulfillment of his duties.
6. In practice and among theorists, the greatest difficulties are caused by
differentiation and correlation of public, budgetary, commercial services
meadow and the delimitation of public services and public functions.
Commercial services regulated by civil law, and
public services are external, subordinate concepts related to the generic concept of "service". Budgetary services are characterized by the following features: financing from the federal budget, the budget of a constituent entity of the Russian Federation, the municipal budget or the budget of the state non-budgetary fund; and the presence due to the law, other regulatory legal act; contract or agreement of the obligation of a public legal entity^ (of the Russian Federation, a constituent entity of the Russian Federation, municipality) provide a service. Budgetary services are related to public services, as a generic concept is related to a specific one. All public services are public functions, because they are all subject to the powers of a certain level of government and fall within the competence of a particular state body, but not all public functions are public services. The latter are specific activities of the state body. Public and social services are intersecting concepts, when the volume of one of them is partially included in the volume of the other and vice versa. Some social services are public and some public services are social.
7. The transformation of the functional activity of the Russian state to the provision of public services is accompanied by the formation of their special legal regulation.
The system of principles of legal regulation of public services, in addition to the general legal principles of legality and the priority of human rights and freedoms, is made up of specific principles of legal regulation of public services, namely:
the principle of ensuring equal access to public services;
the principle of ensuring the quality of public services;
the principle of the unity of the legal and organizational foundations of the system of public services;
the principle of accountability for the provision of public services;
the principle of rationality and optimality in the provision of public services.
8. The current state of the legislation governing the provision of public services is characterized by fragmentation and duplication of legal norms, differences in legal regulation similar types, and conditions for the provision of public services, a high degree of gaps, the lack of a unified approach to regulation. The purpose of such legal regulation is to achieve a balance in satisfying the interests of the private (recipient of "services") and public (society; as a social system interested in satisfying public services). The state, in this case, acts as the organizer and regulator of the system of public services. Improving legislation regulating public services; lies in the plane of systematization of disparate norms of law, filling in the gaps. It is required to adopt federal laws on the system of public services in the Russian Federation, on administrative procedures and on administrative regulations. The transition to legislative, systemic regulation of issues - the provision of public services, development of a normative model of multifunctional centers for the provision of state and municipal services to the population.
Theoretical significance of the dissertation research consists in obtaining new scientific knowledge about public services. The dissertation identified and summarized at the theoretical level important aspects of the provision of 1 public services, gave a definition of a public service, established the content, essence and structure of a public service, proposed a legally significant classification of public services, showed the features of the ratio of various types of public services. Scientific approaches to the regulation of public services in the modern legal reality of the Russian state in the conditions of trans-
formations of its main functions: Along with general provisions; the dissertation formulated a number of specific proposals and conclusions; important for > optimizing the legal regulation of the provision of public services.
Practical 1 the significance of the dissertation research: Provisions and conclusions - dissertations are intended* to solve scientific and practical problems of normative legal regulation of the provision of public services in the Russian* Federation and can be used by legislative and law enforcement bodies of state power, as well as local governments. In addition, the results of the dissertation may find application in * the educational process.
Approbation of the results* of the study. The research materials are used in the "educational process when giving lectures, and conducting seminars in the disciplines "Theory of State and Law", "Problems of the Theory of State and Law", "Administrative Law" at the Cheboksary Cooperative Institute. The main provisions of the dissertation are reflected in scientific works published by the author with a total volume of 16.9 p.l.
Certain provisions of this study are reflected in the regulatory legal acts governing the provision of public services in a number of constituent entities of the Russian Federation (Tomsk, Omsk, Kostroma, Saratov regions, Stavropol and Krasnodar region, Republic of North Ossetia-Alania).
The provisions set forth in this paper form the basis of the author's training seminars for representatives of the executive bodies of state power and local self-government on improving the quality of the provision of state and municipal services.
meadow; design, examination and approval of administrative regulations for the provision of state (municipal) services; inventory of legally significant actions and related public services performed and provided by executive authorities, as well as state institutions under their jurisdiction, state enterprises; carrying out a functional analysis of executive authorities and executive and administrative bodies of local self-government. During the period from 2006 to 2009, more than 30 such seminars were held for representatives of 18 constituent entities of the Russian Federation, organized, among other things, by international organizations.
Dissertation structure. The dissertation consists of an introduction, three chapters, including 9 paragraphs, a conclusion, a list of normative sources used and scientific literature.
Public services as a function of the modern welfare state
The concept of "public service" has become widespread in Russia as part of the ongoing administrative reform in the country. According to the author, the reform in this case was only a catalyst for the inevitable process caused by the rethinking of the functions of the state in accordance with the trends of social development, the formation of a welfare state.
The author of the study believes that the study of the main directions of development of the functions of a modern state should begin with a preliminary analysis of such basic concepts as "function", "function of the state", and the vector of change in understanding the purpose of state institutions dictates the need for a priority study of the concepts of "social function", "social state”, “social legal state”, etc.
Modern science has not produced a holistic, generally accepted understanding of the welfare state. The relative independence of the concept of "welfare state" is opposed by the opinion that it expresses a constitutionally fixed functional relationship between the essence, content and form of the state.
To understand the content, the phenomenon of the welfare state, let us turn to the history of the issue.
The theory and practice of the welfare state was widely developed and recognized in the second half of the 20th century, although the roots that feed the idea of such a state originated much earlier - simultaneously with the emergence of the state itself as an institution.
For the first time the concept of "welfare state" was introduced into science in 1850 by Lorenz von Stein. In his definition, L. von Stein noted that the welfare state "is obliged to maintain absolute equality in rights for all different social classes, for a separate, private, self-determining personality through its own power. It is obliged to promote economic and social progress of all its citizens, because, in the final analysis, the development of one is a condition for the development of another, and it is in this sense that we speak of a welfare state.
The generally recognized ideological founders of the theory of the welfare state: Plato, J. J. Rousseau, J. St. Mill, O: Bauer, K. Kautsky, J. M: Keynes, K. Renner, L. Erhard. As E.N. Rudyk "did not ignore this issue and the Russian socio-political, economic and legal thought of different, sometimes" polar political orientation: existence", put forward by the Russian liberal jurist P. Novgorodtsev, and the concept of the "national labor state". Rodzievskiy:
The practice of the emergence of a welfare state also has a long history in its most diverse variants. Suffice it to mention the Jesuit state in Paraguay (mid-18th century), the famous social reforms of Otto von Bismarck (1815-1898) "welfare state for the Aryans" in the National Socialist Germany, the "social republic of Salo" (Salo-city, which became the capital of fascist Italy at the last stage of its existence: November 1943-April 945), the Soviet version of the welfare state ".
Currently, the situation with the welfare state in its democratic version has been elevated to the constitutional norm in a number of developed countries (Austria, Germany, Greece, Spain, Italy, the Netherlands, Portugal, Scandinavian countries, France, etc.), as well as in developing countries, including many former republics of the USSR (Armenia, Belarus, Georgia, Kazakhstan, Tajikistan, Ukraine). All developed countries of the world; regardless of the presence or absence of relevant provisions in their fundamental laws, they are, to a greater or lesser extent, de facto social states.
The conclusions of modern researchers of the welfare state are reflected in the work of P.K. Goncharova4 "What is a welfare state as a scientific category, what is its essence as a social phenomenon? Most Russian scientists consider these issues through the prism of the specific activities of the state in the social sphere. Baglai, believed that a social "state is called, which assumes the obligation to take care of social justice, the well-being of its citizens, their social security." Doctor of Political Sciences E. Ya. the need for a welfare state as "a state that assumes responsibility for the state of affairs in the social sphere, and therefore considers the policy of social regulation as one of its most important functions."
Main criteria for the classification of public services
Classification methods and procedures are widely used in scientific research to solve a variety of cognitive problems. Sufficiently strictly and clearly carried out classification, at the same time sums up the results of the previous development of this branch of knowledge and at the same time marks the beginning of a new stage in its development. Such a classification has great heuristic power, making it possible to predict the existence of previously unknown objects or to reveal new connections and dependencies between already known objects. - Classification B1, thus; clearly, the dialectical character of the development of scientific knowledge is manifested: the process of obtaining new knowledge is determined to a certain extent by existing knowledge, and at the same time, new knowledge turns out to be irreducible to the old as deeper, more organized, more ordered.
Classification is a powerful tool in the methodology of the theory of law, which allows you to organize the whole set of legal phenomena and processes according to certain criteria, to identify typical, essential and vice versa random, subjective in these phenomena and processes. In domestic science, only scattered attempts were made to single out the types of public services. Separate classification criteria are named, such as the content of public services, the grounds for the provision of public services, the complexity of public services. In her research, N. V. Kiseleva referred to the classification of public services, but the value of the proposed classification is limited by its extension exclusively to public services and the choice of grounds for classification in terms of their significance for the purposes of administrative reform. A specific point of view on the classification of services is presented by A. V. Nesterov, who based the classification on the demand for services, highlighting "expressed in needs (necessary) services, legal (mandatory for service providers) services, sold (real) services" . Such a position, of course, is of a certain scientific interest, however, it does not reveal all the legally significant grounds for classification.
It should be noted that due to the general insufficient research of the theory of public services, there is no single developed classification of public services. The objective complexity of the scientific substantiation of the classification of public services lies in the fact that they themselves represent a category that is outside the established common truths, beyond the generally accepted approaches to their essence and nature.
However, the classification of public services is quite an obvious and rational thing, since public services, despite their specificity, have constant features, content and structure.
To propose a concept of classification of public services is relevant both from a scientific and practical point of view, since this will allow: firstly, to obtain a specific section of the category that penetrates the fabric of the theory of state and the theory of law at the same time, and extends to all branches of law, both substantive and and procedural, and, secondly, to expand the very boundaries of understanding this category in terms of belonging to various subjects of public services, various participants in legal relations. Public services are quite diverse. V. the most general; form, imagining any service as an expedient activity of one subject, aimed at achieving the benefit of another subject and satisfying its interests, it is possible to distinguish legal and non-legal forms of service provision. Among the legal, i.e. regulated by the rules of law, services, public services are considered by us as the opposite of services in the private law sense, expedient and requiring legal regulation (within different limits) activities aimed at satisfying public interests.
Thus, for public services the main features are the following.
Firstly, it is a focus on satisfying public interests, i.e. such interests of individuals and legal entities that are of value on the scale of the whole society. Here we can talk about services whose ultimate goal is to ensure the safety of the population, such as licensing; security economic interests society, e.g. regulatory services entrepreneurial activity; provision of constitutional foundations. states - services related to the legal status of citizens; other.
Secondly, it is necessary to refer to the signs of public services that they are regulated by the norms of public law.
Based on the specific characteristics of the public services themselves, we can proceed to their classification. Classification criteria, i.e. the signs (their sum) that make it possible to attribute certain public services to a specific class, group, are of a different nature. For scientific and practical purposes, public services can be classified according to various criteria. For the purposes of this study, in order to identify the theoretical and legal aspects of the nature of public services, legally significant grounds for classification are of interest. Based on the classification of the subject composition of public services, public services can be classified according to two criteria. The first is associated with the entities providing services, the second - with the entities receiving services. In both cases, a multidimensional model is subject to consideration. 1. Turning to the classification of public services by entities providing them, it should be noted that it is necessary to separate the direct provision of services and the provision of services as an organizational process. With regard to some public services, these two processes may coincide in the person of one performing entity, however, in a number of other cases, the entities providing and providing (organizing the provision) differ. So, according to the entities providing services, public services should include the services of the public sector (which also includes the municipal sector) and the non-state sector.
Correlation of public services with other types of services
Based on the above approaches to the classification of public services, their concept, essence, as well as to the definition of public services, it is possible to determine the ratio of public, budgetary, commercial, social, private services to each other. Relevance of the definition? Such ratios are due primarily to the fact that the construction of "public services" is quite new for modern "jurisprudence. Among scientists and practitioners, there is not only a unanimity of opinion regarding the types of services or the system of their legal regulation, but even a common understanding, a generally recognized conceptual apparatus. In “special literature, activities to meet the needs of the population, the provision of public goods are described in terms of both public services, and public services, and public services, and social services. As L.K. Tereshchenko points out, “It seems that it would be wrong to confuse these concepts, since they have different content and characterize the services provided from different angles. At the same time, it would also be wrong to oppose them.”114 In this regard, it is necessary to determine the ratio, first of all, of those concepts, the delimitation of which causes the greatest difficulties in practice and among theorists, entailing the polarity of opinions, and sometimes the synonymous use of non-identical terms. Now that we have described their relation to public services as a generic concept, this has become possible.
1. The ratio of private (commercial) and public services. The specific properties of public services, in relation to services in the private law sense, should include, first of all, their state-imperious nature and regulation by public law norms, and secondly, the imperativeness of such norms, at least in relation to one of the parties of legal relations - to the state. The participation of the state, represented by its bodies and authorized institutions in the provision of public services is not voluntary for them, but is mandatory due to the consolidation of such services by law. In the literature, there is often a confusion of the concepts of state paid service and commercial service. Common to them is the condition of compensation. The state does not provide commercial services, because such functions are performed by economic entities - participants in the market, and for the state they are redundant: The redundancy criterion is the main one in distinguishing between public and commercial services. The state provides only those services that the market cannot provide for various reasons.
T. V. Zhukova believes that “The use of one term “services” to denote ... the realities of modern Russian reality is not very successful, since it can lead to confusion not only of concepts, but also of the essence of phenomena”115. One cannot agree with the last statement, because "it is based on a logical error. No. services in the field of civil law relations, (commercial services) and public services, of course, belong to the same generic concept of "services" in its general meaning and are, in relation to it, concepts of species, differing in their characteristics.
Thus, commercial services regulated by civil law and public services are extraneous, subordinate concepts related to the generic concept of "service", while public services, as has been shown, are part of public services.
2. The ratio of state and budgetary services. The term "budgetary services" has become widespread in the development of standards for the provision of services, which define the requirements for the quality of services financed through a state assignment from the appropriate budget or state non-budgetary fund; Public service standards, currently being developed by many regions, are a necessary step in the transition from financing institutions to financing services (which will eventually enable the transition to per capita financing of services, and will also promote the principle of "money follows the consumer").
Let us compare the various definitions of a budgetary service used in order to standardize such services.
According to the main provisions of the "Code of Best-Practice in the Field of Management1 of Regional and Municipal Finances" "Budget services - a symbol for the results, activities of budgetary organizations, including works, goods and services. The concept of budgetary services is not limited to the traditional idea of them as health services, education, Housing and communal services and other services to the population. The activities of state (municipal) bodies that perform the functions of regulation and administration are also specified through budgetary services ". Such a definition includes, in fact, any activity of budgetary institutions and state bodies.
Regional.practice also uses the term "budgetary service" and interprets it similarly. Bf of the Tomsk region, the definition of a budgetary service is given in the Law of the Tomsk "oblast" quality standards for public services provided at the expense of the regional budget in the social sectors (budgetary services)" dated March 13. 2008 No. 43L03 "budgetary service - public service, fully or partially financed from the regional budget and provided to individuals and legal entities in the territory
Forms of legal regulation of public services
Having proclaimed itself a social state, whose policy is aimed at creating conditions that ensure a decent life and free development of a person, the Russian Federation has taken upon itself the obligation to take the necessary measures to state security public services.
Legal regulation of services is carried out, first of all, in the Constitution of the Russian Federation, which contains a direct mention of the term service (for example, in "Art. 8, 74). Even more significant is the role of the Constitution of the Russian Federation in regulating the constitutional rights of citizens, which underlie public services, the implementation of which must be provided by the state. For example, Art. 41 of the Constitution of the Russian Federation establishes that everyone has the right to health care and medical care. Corresponding to this right of citizens is the corresponding obligation of the state. Thus, the Constitution of the Russian Federation obliges the state to develop state, municipal, private healthcare systems, organize medical care for citizens, take measures to protect the health of society, expressing public interest in the development of healthcare in general, which implies a whole block of public services in this area.
Moreover, the above constitutional norm complies with international norms131, in particular Art. 25 of the 1948 Universal Declaration of Human Rights, Art. 12 of the International Covenant on Economic, Social and Cultural Rights of 1966, the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which the state is obliged to ensure the protection of the health of citizens and medical assistance to those in need. Thus; social services in the field of health, being essentially public, are also regulated by international legal acts, which is common to the entire system of public services.
Since legal relations in the sphere of public services are characterized by a variety of their manifestations, they are subject to legal regulation of various branches of law. Noting the administrative and legal regime of regulation characteristic of the public nature of public services; it is important to pay attention to their institutional complexity. And public services are reflected in the norms of constitutional law, financial law, social security law, labor law, civil law, criminal law and other branches of law.
Considering public services as an expedient and requiring legal regulation (within different limits) activities aimed at satisfying public interests, it is necessary to abstract from the category of private legal services when studying their legal regulation. The latter are widely used in civil law to denote the performance of work on a contractual basis. Relations for the provision of services for a fee have all the signs of civil legal relations, in particular, the legal equality of participants in legal relations, the dispositive orientation of legal regulation, the principle of freedom of contract. The legal fact that gives rise to these legal relations is a civil law contract. Such legal relations are aimed at satisfying private interests. At the same time, in other normative legal acts, a slightly different meaning is put into the content of the category "service", which allows us to talk about the public nature of this kind of service. The legislator does not use the term "public services", operating with such concepts as public services, social services, services in the field of education, medical services and others.
Legal regulation of public services is expressed in federal and regional laws, in subordinate normative legal acts, including local ones, in municipal acts.
These services are mentioned in such legislative acts as the Budget Code of the Russian Federation of July 31, 1998 No. 145-FZ (as amended on December 30, 2008)132, the Law of the Russian Federation of April 19. 1991 No. 1032-1 (as amended on December 25, 2008) "On Employment in the Russian Federation"133, Federal Law No. 195-FZ of December 10, 1995 (as amended on July 23, 2008) "On the Fundamentals social services to the population of the Russian Federation"134, Federal Law of 17 July. 1999 No. 178-FZ (as amended on December 22, 2008) "On State Social Assistance"135, Federal Law No. 79-FZ of July 27, 2004 (in the Federal Law of December 25, 2008) "On the State Civil Federation"136, Federal Law No. 184-FZ of October 6, 1999 (as amended on December 25, 2008)
in law and jurisprudence on the topic "The ratio of public law and common law principles in the provision of public services to the population in the Russian Federation"
Akhrameeva Olga Vladimirovna
CORRELATION OF PUBLIC LAW AND PRIVATE LAW PRINCIPLES IN RENDERING PUBLIC SERVICES TO THE POPULATION IN THE RUSSIAN FEDERATION (ON THE EXAMPLE OF BAR AND NOTARIA)
Specialty 12.00.01 - theory and history of law and state; history of the doctrines of law and the state
Stavropol - 2011
The work was carried out at the Stavropol State University
Scientific adviser: Doctor of Law, Professor
Medvedev Stanislav Nikolaevich
Official opponents: Doctor of Law, Professor,
Isakov Nikolay Vasilievich
PhD in Law, Associate Professor, Marina Dmitrievna Fominskaya
Lead Organization: State Educational
institution of higher vocational education"Kuban State Agrarian University"
The defense of the dissertation will take place on March 26, 2011 at 2 pm at a meeting of the council for the defense of doctoral and master's theses DM 212.256.12 at the Stavropol State University (Stavropol) at the address: 355009, Stavropol, str. Pushkina, 1, building 1a, room. 416.
The dissertation can be found in the library of the Stavropol State University. The text of the abstract is posted on the official website of the Stavropol State University - www.cpmo.stavsu.ru - February 22, 2011
Scientific Secretary
doctoral council ^
and candidate dissertations DM212.256.12, //
PhD in Law, Associate Professor ^^^ T.I.Demchenko
I. GENERAL CHARACTERISTICS OF THE WORK
Ayuuality of the topic of dissertation research. The Russian Federation is a social state1, one of the main duties of which is to ensure and protect human rights and freedoms, improve the standard of living of citizens, and form in society such models of behavior that would be based on respect for the law and observance of moral prescriptions.
The implementation of the tasks set is achieved by fixing in the current regulatory legal acts such rules of conduct for state officials, officials of local self-government, other public authorities, the observance and implementation of which contributes to ensuring and protecting the rights of citizens, creating favorable conditions for the exercise of their subjective rights.
In turn, ensuring and protecting the rights and freedoms of man and citizen are associated with the satisfaction of the private interests of citizens and legal entities through the provision of various public services by public authorities and subjects authorized by them.
In the context of the ongoing legal and administrative reforms in Russia, public services are recognized as one of the important categories of law enforcement and their importance is increasing every year. In domestic legal science over the past few years, studies have been repeatedly carried out on the nature of public services, the specific features of public services, their sectoral legal regulation.
The variety of services that are able to meet the individual and collective needs of the individual, society and the state necessitates the specification of their legal regulation. This is evidenced by the intensively developing legislation on public services in recent years, which establishes the types of services, the subjects of their provision, provision and receipt, strengthens legal guarantees of the rights and legitimate interests of citizens and legal entities when receiving services.2
In the provision and receipt of public services, in most cases, the interests of the state, society and individuals are combined, respectively, it contains both public and private law principles.
1 Constitution of the Russian Federation of December 12, 1993 // Rossiyskaya Gazeta. No. 237, 12/25/1993
2 Morozova E.V. Public services: theoretical and legal aspect / Abstract of the thesis. diss. cand. legal Sciences. Mytishchi, 2009. S.Z
Their correlation is especially pronounced in the organization and activities of the notaries and advocacy.
The notary and the bar, in accordance with the legislation of the Russian Federation, carry out activities to provide assistance to the population, individuals and legal entities in legal matters. In fact, they participate in the provision of such a type of public service to the population as a legal (legal) service.
Being specific institutions for the provision of public services to the population, notaries and the bar are largely independent, but the legal assistance they provide is regulated in detail by the legislative acts of the Russian Federation, as well as the organizational and legal forms of their activities. Accordingly, the notary and the bar perform a specific public law function related to the satisfaction of the private interests of citizens and legal entities.
In Russian legal science, there is a lack of research on the provision of public services by notaries and advocacy to the population, which determines the relevance and necessity of a dissertation research.
The degree of scientific development of the research topic. When developing the research topic, scientific works on the theory and history of Russian law were used by the following scientists: M.M. Agarshv, M. Ansel, M.F. Vladimirssh-Budanov, C.B. Dorokhin, V.N. Durdenevsky, I.A. Ilyin, B.A. Kistyakovsky, K.V. Knyazev, F.F. Kokoshkin, N.M. Korkunov, N.M. Korshunov, A.B. Malko, L.S. Mamut, M.N. Marchenko, N.I. Matuzov, G1.E. Mikhailov, B.C. Nersesyants, M.V. Pershi n. L.I. Petrazhitsky, V.V. Subochev, F.V. Taranovsky, E.H. Trubetskoy, B.B. Cherepakhin, G.F. Shershenevich and others.
Issues of public administration, as areas of activity of public authorities in the provision of services, were considered in the works of such Russian researchers as V.B. Averyanov, A.P. Alekhin, D.N. Bahrakh, I.L. Bachilo, A.A. Karmolitsky, Yu.M. Kozlov, B.M. Lazarev, L.A. Mitskevich, E.V. Talapina, Yu.A. Tikhomirov, T.Ya. Khabrieva, M.D. Chesnokova, A.A. Yugov and others.
The issues of organizing a notary and providing citizens and legal entities with notarial services are considered in the works of R.Kh. Aleeva, I.N. Bogashrgvoy, T.S. Burtseva, M.A. Dolgov, N. Lyapidevsky, I.V. Moskalenko, V.V. Ralgo, N.V. Repin, V.G. Rumyantseva, O.V. Khyshiktueva, G.G. Cheremnykh, I.G. Cheremnykh and others.
Features of the organization of the bar and the participation of lawyers in providing legal assistance to citizens have become the subject of scientific research such
scientists like A.B. Arendarenko, Z.Ya. Benyaminova, I.E. Borovik, A.I. Bugarenko, N. Bulatova, A.B. Vereshchagina, S.N. Gavrilova, A.N. Golovistiyuva, L.Yu. Grudtsyna, M.V. Ivanova, A.G. Kuchereny, E.S. Lyubovenko, V.I. Sergeeva, A.E. Skoptsova, Yu.I. Stetsovsky, G.S. Sheremetova, I.S. Yartykh and others.
Certain aspects of legal regulation and practice of providing public services to citizens and legal entities in Russia and foreign countries were studied by E.A. Ageeva, A.F. Vasilyeva, P.A. Gavrilyuk, E.H. Dobrokhotova, A.N. Kostyukova, K.E. Mikhailenko, D.V. Muzyukin, A.A. Salchak, L.V. Sannikova, P.V. Sokol and others.
Legal regulation and practice of providing public services to individuals and legal entities are considered in the works of such foreign scientists as E. Becker, D. Bertrand, F. Jessenbuhl, M. Zulig, T. Manz, J. Patner, F. Roentgen, A. Ton, J. Trantas, E. Forsthoff and others.
The purpose of the study is to identify the features of public law and private law principles in the provision of public services by notaries and advocacy to the population in the Russian Federation.
The objectives of the dissertation research are determined by the goal and are as follows:
To study the formation and development of the institution of public services to the population in Russia;
Consider the features of public services in the system of public relations of the modern Russian state and society;
Analyze the regulatory framework for the provision of public services to the population in foreign countries;
Formulate the concept of a public service;
Give a classification of public services;
To identify the features of public law and private law principles in the legislation of the Russian Federation on the bar and notaries;
To characterize notarial activity as a sphere of providing services to the population in Russia;
Consider advocacy as a sphere of providing services to the population in Russia;
To identify the features of the relationship between law and morality in the regulation of the activities of state-powerful and other public-legal entities in the Russian Federation on the example of the bar and notaries.
The object of the dissertation research is the public law and private law principles of public relations arising in the process of providing public services to the population by notaries and advocacy in the Russian Federation.
The subject of the dissertation research is the normative legal acts that fix the legal status of the bodies of the notaries, the bar, regulate the procedure for the provision of public services by them to the population in Russia, and determine the degree of correlation between the state-legal and private law principles in the activities of the notary and the bar.
Theoretical and empirical basis of the study. Theoretical provisions and conclusions of the dissertation research are based on the analysis of philosophical and legal literature, scientific developments in the general theory of law, and branch legal sciences.
The author relied on the works of scientists who develop issues of the theory of public services, the organization of the activities of notaries and advocacy, public administration, the essence of public and private law: S.S. Alekseev, V.B. Averyanov, M.M. Agarshv, R.Kh. Aleev, V.K. Babaev, P.M. Baranov, I.N. Bartsits, D.N. Bahrakh, S.A. Belov, T.S. Burtseva, A.M. Vasiliev, A.B. Vengerov, N.V. Vitruk, E.V. Gritsenko, L.Yu. Grudtsyna, A.B. Drozdova, T.V. Zhukova, M.V. Ivanova, T.N. Ilyina, A.A. Kirillov, N.V. Kiseleva, B.A. Kistyakovsky, H.H. Ko s aren ko, N.M. Korkunov, A.G. Kucherena, B.M. Lazarev, A.B. Maly®, Marchenko M.N., N.I. Matuzov, N.V. Mironova, L.A. Mitskevich, E.V. Morozova, B.C. Nersesyants, A.B. Nesterov, P.S. Patsurkivsky, MB. Pershin, N.V. Confused, N.V. Repin, L.B. Sigdikova, A.B. Starovoitov, Yu.A. Tikhomirov, L.K. Tereshchenko, G.G. Cheremnykh, IT. Cheremnykh, AE. Shasgitko, O.M. Shuyuvskaya, Yartykh I.S., A.V. Yatskin and others.
The normative and empirical basis of the study was the norms of the Constitution of the Russian Federation of December 12, 1993, the Fundamentals of the Legislation of the Russian Federation on Notaries of February 11, 1993, the Federal Law "On Advocacy and the Bar in the Russian Federation" of May 31, 2002, other federal laws, by-laws acts of the Russian Federation, laws of the constituent entities of the Russian Federation, legislation of some foreign countries, draft legislative acts on the provision of public, including legal, services to the population, generalization of the experience of practical activities of notaries and lawyers in providing services to the population.
The methodological basis of the study is a combination of general scientific, private and special methods scientific knowledge. Such methods of scientific knowledge as: analysis, synthesis, induction, deduction were used. The use of the dialectical method made it possible to carry out a systematic analysis of the normative-legal consolidation of various forms of activity of notaries and lawyers, the procedure for their provision of legal assistance to the population. Methods of comparative legal, systemic
functional and historical made it possible to identify the features of the legal norms governing the provision of public services to the population in the Russian Federation and foreign countries, the features of the manifestation in the Russian legislation on notaries and advocacy of public law and private law principles. The formal legal method served as the basis for the interpretation of specific legal norms.
The scientific novelty of the study lies in the fact that this is one of the first works devoted to the analysis of the correlation of public law and private law principles in the activities of the notary and advocacy in the provision of public services; in the dissertation, based on a comprehensive analysis of scientific and legal definitions of public services and their varieties, the author's definitions of public services, legal services, legal assistance are formulated; the essential features of legal assistance as a generic concept and qualified legal assistance as a specific concept of public service are highlighted; it is proved that the notary and the bar participate in the provision of legal services to citizens and legal entities in the Russian Federation in the form of legal assistance; the features of the correlation of public and private principles in the organization and activities of public authorities and such public law entities as notaries and the bar have been identified; substantiated the main components of public law and private law principles in the legislation of the Russian Federation on notaries and advocacy; it is proved that the most important component of the private and public principles in the legislation on notaries and advocacy and its implementation in the process of activities of notaries and lawyers is the observance of moral principles.
The analysis of the ratio of public law and private law principles in the provision of public services by notaries and advocacy in the Russian Federation made it possible to formulate the following main provisions and conclusions for defense:
1. The author's definition of a public service is formulated as a state-sanctioned activity of public authorities, local governments, state and municipal employees, state and municipal enterprises and institutions, other public non-state entities to provide benefits to the population in various fields public life related to the satisfaction of the legitimate rights and interests of a person and a citizen on a paid or free basis.
2. Under the legal service, as a kind of public service provided by state authorities and other public law
subjects, it is proposed to understand the activities of authorized subjects (individuals and legal entities) based on a normative legal act to provide benefits (legal needs), in the form of legal advice, drafting documents, legal support of transactions, etc. on a reimbursable or non-reimbursable basis on the initiative and in the interests of the service recipient.
3. Under legal assistance, it is proposed to understand the activity of persons with professional knowledge and skills in the field of law (lawyers, notaries, etc.) or their associations based on a normative legal act to provide benefits (needs of a legal nature), in the form of legal advice, drafting documents, representing the interests of interested parties at the pre-trial stages, representation and defense in court, representation in enforcement proceedings, which the service recipient urgently needs, on a reimbursable or non-reimbursable basis at the initiative of the service recipient or by virtue of law.
4. Notarial activity is a kind of legal service. It has a number of features in common with a public service: it is regulated by the state, addressed to an unlimited circle of people, provided by authorized entities, demanded by service recipients, implies compensation. At the same time, the main function of a notary in the private legal sphere is the provision of legal services, while the provision of legal assistance to the population can only be considered as an optional function.
5. Lawyer activity is a kind of legal service and, in turn, combines such types of legal services as qualified legal assistance and legal assistance. Legal assistance can be provided by both lawyers and notaries and other persons to whom the service recipient entrusts the representation of their interests. In turn, according to the legislation of the Russian Federation, only a lawyer can provide qualified legal assistance.
The distinguishing features of qualified legal assistance include: an acute demand for legal services, the presence of a special entity providing qualified legal assistance, its obligation in cases specified by law to provide legal services free of charge, the occurrence of legally significant consequences as a result of the provision of legal services.
6. The dissertation substantiates the conclusion that qualified legal assistance in practice is provided not only by lawyers, but also by notaries, as well as other highly qualified persons
in the field of law and legislation. We propose to change the wording of advocacy contained in part 1 of article 1 of the Federal Law of May 31, 2002 No. 63-F3 “On advocacy and advocacy in the Russian Federation”, and state part 1 of article 1 of the Law in the following wording: "advocacy is legal assistance provided on a professional basis by persons who have received the status of a lawyer, in the manner established by this Federal Law, to individuals and legal entities in order to protect their rights, freedoms and interests, as well as to ensure access to justice."
7. Private law and public law principles are reflected in the rules of law that fix the organization and activities of the notaries and the bar and in the specific actions of notaries and lawyers.
The combination of public and private principles in the organization and activities aimed at providing public services to the population is based on taking into account public and private interests, depends on the nature! the legal status of entities providing public services, from the legal regime of the activities of these entities, fixed by the norms of the private and (or) public sectors.
8. The principles of public law in the legislation on notaries and advocacy are expressed as follows: in the legislative consolidation of socially significant interests; in determining the organizational and legal forms of notarial and advocacy activities aimed at their implementation; in determining the methods of control by public authorities over the implementation of notarial and advocacy activities.
Public law principles, enshrined in the norms of branches of public law, involve the formation of a special legal regime for the activities of notaries and the bar.
9. The private law principles for the provision of public services, enshrined in legislation, are expressed in the priority of private interests, regulation of the rights and obligations of notaries and lawyers, specific types of legal services, mechanisms for satisfying private interests through the provision of certain services, the procedure for concluding contracts for the provision of these services.
10. An important criterion for the quality of satisfaction of private interests in the activities of notaries, lawyers, as well as officials of state authorities and local self-government, is to take into account the relationship between law and morality, their observance of moral principles.
The dissertation substantiates the position that the effectiveness of public law and private law principles in the provision of public services
notaries and lawyers related to the exercise and protection of the rights and freedoms of man and citizen, depends on the moral qualities of these subjects, on a sense of duty and conscientious attitude to professional duties, on an attentive attitude towards a person and a desire to help him meet his interests.
11. The expression in legal acts of the principles of morality occurs in two ways: 1) by directly indicating the obligation of state authorities, local self-government, officials, other subjects of public relations to build their activities in accordance with the principles and norms of morality generally accepted in society, with a direct indication such principles as justice, humanism, equality, responsibility, etc.; 2) the requirement to observe moral principles arising from the general spirit of the law.
The activities of public law entities can be considered as corresponding to moral principles from two positions. Firstly, if it contributes to the provision and protection of moral principles and moral norms that have developed in society. Secondly, the activities for the provision of public services are consistent with the norms of morality, expressed in the rules of law or in the legal policy and ideology of the law.
12. According to the dissertation candidate, an important confirmation of the presence of a private law principle in the organization and activities of the bar and notaries is the orientation of the legislation of the Russian Federation on notaries and the bar to the observance of moral principles by representatives of these professions.
Private law principles in the activities of notaries and lawyers are more pronounced than in the activities of public authorities and local self-government. This is explained by the fact that notaries and lawyers are called upon to provide legal assistance to the population, therefore, trusting relationships are often established between them and the persons who apply to them, which are impossible between a person and a public authority. Accordingly, the provision of public services to the population in the form of legal assistance by notaries and lawyers is based, among other things, on the principle of respect for human rights and freedoms, i.e. must meet the requirements of morality.
13. The necessity of developing and adopting the Federal Law "On Qualified Legal Assistance in the Russian Federation" is substantiated, which would regulate the legal status of entities entitled to provide qualified legal assistance (lawyers, notaries, other persons professionally dealing with issues of legal
va), as well as the procedure, grounds and conditions for the provision of qualified legal assistance by them, including on a free basis.
14. It is proposed to supplement Article 26 of the Federal Law of May 31, 2002 No. 63-F3 “On Advocacy and the Bar in the Russian Federation” with the following paragraphs: “Foreign citizens and stateless persons located on the territory of the Russian Federation have equal rights with citizens Russian Federation to receive free qualified legal assistance,
Stateless persons who are on the territory of the Russian Federation receive free legal assistance on the same basis as citizens of the Russian Federation.
Foreign citizens who are on the territory of the Russian Federation receive free legal assistance in accordance with the international treaties of the Russian Federation and on the grounds established by these treaties.
15. It is proposed to supplement Article 1 of the Federal Law of May 31, 2002 No. 63-F3 “On Advocacy and the Bar in the Russian Federation” with paragraph 1.1 as follows: “A lawyer has the right to participate as an independent individual (mediator) engaged by the parties as mediator in dispute resolution to assist the parties in developing a decision on the merits of the dispute on the basis of the Federal Law of July 27, 2010 No. 193-F3 "On an alternative procedure for resolving disputes with the participation of an intermediary (mediation procedure)".
The theoretical and practical significance of the study lies in the fact that in modern legal science one of the first studies of the legal regulation of the provision of public services by notaries and advocacy to the population in the context of the relationship between public law and private law principles in the organization and activities of the advocacy and notaries in Russia was carried out.
The results of the study can be used to conduct further research in the field of the theory of services, the provision of legal assistance to the population, the organization and activities of the bar and notaries as public law entities performing private law functions.
In addition, the results of the dissertation research can be used in the process of teaching the discipline "Theory of State and Law", other special legal disciplines devoted to notaries, advocacy, as well as the legal regulation of public services in the Russian Federation.
Approbation of the results of the dissertation research: the results of the dissertation research were repeatedly reported by the author of the work at meetings of the Department of Theory of State and Law of the Stavropol State University, at various international, all-Russian and regional scientific and practical conferences, published in printed publications, including 7 articles , in publications recommended by the Higher Attestation Commission of Russia.
The main results of the dissertation research have been introduced into the educational process of the Faculty of Law of the State Educational Institution of Higher Professional Education "Stavropol State University" as part of the teaching of the discipline "Theory of State and Law", into the practical activities of the Chamber of Lawyers of the Stavropol Territory and the Main Directorate of the Ministry of Justice of the Russian Federation for the Stavropol Territory.
The structure and scope of the dissertation. The structure of the work is predetermined by the purpose and objectives of the study. The dissertation work consists of an introduction, two chapters, consisting of seven paragraphs, a conclusion and a list of sources and references.
P. MAIN CONTENT OF THE WORK
The introduction substantiates the relevance of the dissertation topic; characterizes the degree of its development; the object and subject of research are established; its purpose and tasks are determined; describes the empirical basis and source base; the provisions submitted for defense are formulated; the theoretical and practical significance of the work is indicated and information is given on the results of its approbation.
The first chapter - "Theoretical Foundations and Historical Prerequisites for the Provision of Public Services to the Population in Russia and Foreign Countries" - includes three paragraphs that are devoted to a general description of the theory of public services in Russian legal science; concept, types and features of public services under the legislation of the Russian Federation and individual foreign countries.
In the first paragraph - "The concept, formation and development of the institution of public services to the population in Russia" - the main categories and concepts used in the dissertation research are indicated, the questions of the historical formation of approaches to the concept of public services in domestic legal science are considered,
legal definitions of public services in the regulatory legal acts of the Russian Federation and their features are highlighted.
At present, the concept of "service" is not clearly defined either in regulatory legal acts or in the terms of reference of legal scholars.
A service as an action rendered by one subject to another acts as an object of exchange in economic and mediating legal relations. It always has three incarnations - economic (a product that appears in the production process, has a cost and the ability to participate in the turnover of values), legal (a model of interdependent behavior of producers and consumers of services, i.e. subjects that in modern conditions can occupy different social and legal positions in relation to each other - autonomous, subordinate, co-subordinate) and public-social (the object of the system of coordinating the interests of society and public authority, the resultant of which (interests) is aimed at implementing the program for the progressive development of this society).3
In the explanatory dictionary of the Russian language V.I. Dahl, a service is “the very thing, help, benefit or favour. To provide a service to someone, to do what is necessary, whatever. 4 In the dictionary of the Russian language S.I. Ozhegov, a service is understood as “an action that benefits, helps another.”5 D.N. population, residents.”6
Thus, dictionaries proceed from a very broad understanding of the term "services", i.e. a service can be understood as any action for the sale of goods, the manufacture of any objects, for the transfer of any thing for paid or gratuitous use, as well as for the performance of actions to inform, consult, legal, consumer services for citizens and much more. Such an understanding covers almost any action and does not allow one to distinguish one action from another.
In the Constitution of the Russian Federation of 1993, in Article 8 of Chapter 1 “Fundamentals of the Constitutional System” and Article 74 of Chapter 3 “Federal Structure”, there is a mention that in Russia it is guaranteed
3 Dobrokhotova E.H. Public services: legal regulation (Russian and foreign experience): collection // ed. ed. E.V. Gritsenko, H.A. Sheveleva. - Wolters Kluwer, 2007
4 Dal V.I. Dictionary of the living Great Russian language: In 4 volumes / V.I. Dal. M., 2005. T. 4: R-7. S. 512.
5 Ozhegov S.I. Explanatory dictionary of the Russian language. Publisher: Onyx. 2008, p. 736.
6 Ushakov D.N. Explanatory dictionary of the Russian language T. IV M., 2000. Pillar. 992.
provision of services, but what kind of services (state, public, public), what kind of legal category is not disclosed.7
In Article 128, Subsection 3, Chapter 6, Part One of the Civil Code of the Russian Federation, the legislator only names, but does not disclose the concept of “service”, as “objects of civil rights include things, including money and securities, other property, including property rights; works and services, protected results of intellectual activity and equivalent means of individualization (intellectual property); intangible goods"8.
The concept of a service is gradually being differentiated and covers not only services purely in the civil law sense, but also services provided by the state as a whole and its bodies, municipal and other structures. , their legal nature and implementation are currently referred to three doctrinal approaches to public services: classical (modern), non-classical (postmodern) and post-non-classical (post-postmodern).
It must be understood that a service is not identical to a product or work, since the latter, in accordance with the Civil Code of the Russian Federation, can be provided on a reimbursable or non-reimbursable basis as a result of the conclusion of an agreement. The public service is provided by the service provider to the service recipient not as a result of an agreement concluded between them (although such a procedure for its provision is not excluded), but by virtue of the legal norm obliging the service provider to provide the corresponding public service.
A significant part of the services (public services in the field of education, healthcare, housing and communal services, culture, etc.) are provided by public authorities and local governments not directly, but through specialized state institutions and organizations. Particular attention should be paid to the problem of transferring functions for the provision of public services to non-state
7 The Constitution of the Russian Federation of 1993 (subject to amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation of December 30, 2008 N 6-FKZ, of December 30, 2008 No. 7-FKZ.// Rossiyskaya Gazeta, No. 7, 01.21.2009.
8 Civil Code of the Russian Federation (Part One) dated November 30, 1994 No. 51-FZ (as amended on December 27, 2009, as amended on May 8, 2010) // Rossiyskaya Gazeta, No. 238-239, 08.12.1994.
"Tikhomirov Yu.A. "Public services: the demand of society and the institutions that implement it"// Report at the VI International Scientific Conference "Modernization of the economy and the cultivation of institutions".
private sector. Such a transfer is permitted by law in administrative procedure(mainly specially created structure) on a contractual basis.
Another option for transferring the function of providing public services to non-state structures appears as a consequence of a political decision to withdraw or reduce the influence of the state on the regulation of a particular type of relationship. In this case, the regulation of relations in this area is given to the non-state sector.
Development legal institution public services in the Russian Federation is consistent with the post-non-classical theory developed in Germany in the late 1940s and, accordingly, public services to the population include a set of special “products” and “benefits” established by the state, having social significance and addressed to all segments of the population of Russia.
According to the author, at present, a public service should be understood as the state-sanctioned activities of state authorities, local governments, state and municipal employees, state and municipal enterprises and institutions, other public non-state entities to provide the population with benefits in various areas of public life, according to satisfaction of the legitimate rights and interests of a person and a citizen on a paid or free basis.
The second paragraph - "Types and features of public services in the system of public relations of the modern Russian state and society" - characterizes the approaches existing in Russian legal science to the typology of public services provided to the population of the Russian Federation by public authorities, local governments, and other state-authorized entities. .
AT scientific literature attempts are being made to establish service criteria by classifying them. The most common is the classification of public services depending on the area in which it is implemented. On this basis, information, consulting, household, educational, medical, financial, legal, utilities and other services are distinguished.
Scientific discussions regarding the concept of public service, as a rule, are associated with one or another understanding of the “service” concept of the state, which has become widespread in the United States and a number of countries.
Western Europe in the 80s - 90s of the XX century. The idea of creating a service state in Russia is increasingly being traced in the policy of the current government.
The concept of a "service state" involves considering almost any interaction between citizens and government bodies as the provision of a public service. State authorities provide public services, and local governments, providing services at the municipal level, actually broadcast public services.
A kind of public service is a public service that is of great importance for society.
Public state service and public public service by their nature can be social, legal, etc.
Thus, a public service is a general concept that combines the activities of state authorities, local self-government, state and municipal employees, non-state agents for providing the population with different content, subject of provision, methods of payment for services. Accordingly, public services combine state and non-state services (according to the subject of provision), social, information, registration, and other services to the population;
In the third paragraph - "Legal regulation and features of the provision of public services to the population in foreign countries") - the scientific concepts of public services and the legal regulation of their provision to the population in foreign countries are analyzed, the features of the provision of public services abroad are highlighted.
The institution of public services appeared in the law of European states, in particular Germany, much earlier than in the law of Russia. Since the 30s. 20th century in German administrative law, the idea of the serving nature of management gained particular popularity. Thus, Ernst Forsthoff considered the administration as a service provider.10 In conditions when a city dweller (unlike a rural dweller) cannot provide himself with everything he needs, he has social needs that can be satisfied by organizing a public authority system life support.11
10 Forsthoff E. Die Verwaltung als Leistungstrager. Stuttgart and Berlin, 1938; Forsthoff E. Rechtsfragen der leistenden Verwaltung. Stuttgart, 1959.
11 Forsthoff E. Die Verwaltung als Leistungstrager. Stuttgart and Berlin, 1938; Forsthoff E. Rechtsfragisn der leistenden Verwaltung. Stuttgart, 1959.
We are talking about the provision of vital services that every citizen needs, a consumer, a client of the administration: energy, gas, water supply, transport, communications, etc. Responsibility for their provision lies primarily with the municipal (communal) level of public authority, namely, the primary socio-territorial communities - communes, municipalities, etc. Accordingly, public services, the provision of which they organize, are called municipal (communal).
In a number of foreign states, public services are enshrined as administrative procedures at the regulatory level.12 In particular, in the United States of America, a law on the rules of administrative procedure was adopted back in 1946 (many US states have their own laws on administrative procedure). The Federal Republic of Germany also has a law on administrative procedure of 1976; in Switzerland, the 1968 Federal Law on Administrative Procedures; in Spain, the 1992 Law on the Legal Regime of Public Administrations and the General Administrative Procedure. Laws on administrative procedures are also in force in Austria, Poland, France, Japan and other countries.
In the 1990s in a number of countries of the European Union, special acts have been adopted that establish general requirements and quality standards for the provision of public services: Citizen's Charter in the UK, Carta del servizi in Italy, La Charte des Services Publics in France. French Ministry of Civil Servants and Public Reforms The Republic has proposed a new method for increasing the efficiency of providing public services to citizens under the very beautiful name Marianne's Charter "For better reception of the population". The purpose of the Charter is to simplify the access of citizens to public services that provide services to the population, sensitive and polite reception of the population, an understandable answer to citizens' questions. "
The charter, addressed to all public sector organizations, was submitted for approval to the Commission "on the improvement of the quality of public services" on July 9, 2003.14 It is designed primarily for public sector organizations as central,
12 Bartsits I.N. Public services and administrative regulations for their provision. (Analytical reviews of the Institute for Scientific Research and Information of the Russian Academy of Public Administration under the President of the Russian Federation: Periodical (open series). No. 1/2008.) - M.: Publishing House of the RAGS, 2008. - 54 p.
14 Bartsits I.N. Decree. op.
and regional, whose activities are aimed at providing services to the population, and for jurisdictional bodies.
From the countries of the Commonwealth of Independent States, in the area under consideration, greatest success reached Kazakhstan, where the Law of November 27, 2000 No. 107-N “On Administrative Procedures” is in force. In 2004, a similar law was passed in Kyrgyzstan.15
In Belarus, the Decree of the President of the Republic of Belarus dated April 26, 2010 approved a list of administrative procedures performed by state bodies and other state organizations at the request of citizens for the issuance of certificates or other documents.
The variety of organizational and legal forms of rendering public services in foreign countries determines the different structure of relations in the organization of the provision and provision of services. At the same time, each of the organizational and legal forms of providing services has both advantages and disadvantages.
Recognition for the state of the possibility of using a private law form in the implementation of public administration is the predominant, but not the only position. Some authors criticize the ability of the state to carry out its functions in a private law form, the very possibility of choosing a private law or public law form of activity by a subject of public administration is excluded.16
However, at present, the provision of public services to the population in foreign countries is carried out by state authorities, local governments, commercial and non-profit organizations, mainly on the basis of administrative and legal regulation.
Chapter two - "Public law and private law principles in the provision of f&gshchny services to the population by the bar and notaries in the modern Russian Federation" - includes four paragraphs that are devoted to the study of the legal regulation of the provision of public services to the population of the Russian Federation by lawyers and notaries,
15 Bartsits I.N. Public services and administrative regulations for their provision. (Analytical reviews of the Institute for Scientific Research and Information of the Russian Academy of Public Administration under the President of the Russian Federation: Periodical (open series). No. 1/2008.) - M.: Publishing House of the RAGS, 2008. - 54 p.
16 CM.: Essenbuhl F. Oeffentliches Recht und Privatrecht in der leistungsverwaltung // VVDStRL 29 (1974). S. 541; Zezschwitz F. Rechtsstaatliche und prozessuale Probleme des Verwaltungsprivatrechts. NJW. 1983. S. 1875; Zuleeg M. Die Anwendungsbereiche des oeffentlichen Rechts und des Privattrechts // VerwArch. 1982. S. 397.
substantiation of their specific role in the provision of services to the population, expressed in a combination of public law and private law principles.
The first paragraph - "Notarial activity as a sphere of providing services to the population in Russia" - discusses the issues of the historical formation of the institution of notaries in Russia, its modern organization, the features of notarial activities related to the provision of public services to the population are studied, the issues of the correlation of public services, legal services and qualified legal assistance are analyzed.
According to some estimates, the full-fledged institutionalization of the notaries in Russia took place in 1866, when the Regulations on the notarial part "7 were adopted, and until that time notarial activities were practiced in various professional forms, in the person of various and heterogeneous servants, officials and individuals who carried out the compilation and legitimization of private acts.
Fully corresponds to the historical understanding of the notary modern definition, given in one of the legal dictionaries: “A notary is an official specially authorized to perform notarial acts as the subject of his profession”18.
Political and later economic reforms of the late 20th century in Russia led to a qualitative change in the structure and content of civil circulation. Large-scale privatization and changes in property relations required adequate legal support for the ongoing reforms to meet the new realities. As a result, on the basis of the Constitution of 1993, judicial reform began to be carried out, the system of administration and relations between various state authorities was changed, and the system of municipal authorities was built. An integral part of the reform legal system there was a change in the notarial system. The system of the state notaries operating at that time was unable to satisfy the increased needs of participants in civil transactions in qualified legal support for their activities.19
Modern Russian notaries are divided into budgetary (state) and non-budgetary (private). The budget notary exists in
17 Aleev R.Kh. On the professional holiday of the Russian notaries // Federal Chamber of Notaries / http://www.notariaLru^ulletinarhiv/press_2211_23.aspx (23.03.2007)
18 Big Law Dictionary / Ed. AND I. Sukharev, V.E. Krutskikh. - 2nd ed., hierarchical. and additional - M.: INFRA-M, 2004. P.375.
"Repin N.V. The place of notaries' chambers in the organization of civil society in Russia // Abstract of diss. candidate of legal sciences. M., 2006. P. 14
the form of state notaries and notary chambers, and the non-budgetary one is represented by notaries in private practice.
The notarial system, regardless of the method of its organization (public or private notaries), is public-law in its organization, the content of its activities and is part of the state system. The notary is one of most effective ways implementation by the state of the necessary control and adequate response to the real development of civil law relations.
We can say that notarial activity is a mechanism (order, sequence) for the implementation on behalf of the state by authorized bodies, organizations and institutions of the notary actions assigned to them, designed to legally consolidate civil rights and prevent the possibility of their violation, or law enforcement and jurisdictional functions in combination with the provision of legal services to citizens and organizations.
According to the dissertation, a legal service should be understood as the activities of competent entities based on a normative legal act to provide benefits (legal needs), in the form of legal advice, drafting of documents, legal support of transactions, etc. on a reimbursable or non-reimbursable basis on the initiative and in the interests of the service recipient.
In turn, by legal assistance, we propose to understand the activities of professional lawyers (lawyers, notaries, etc.) or their associations based on a normative legal act to provide benefits (legal needs), in the form of legal advice, drafting documents, representing the interests of interested parties. persons at the pre-trial stages, representation and defense in court, representation in enforcement proceedings, which the service recipient urgently needs, on a reimbursable or non-reimbursable basis at the initiative of the service recipient or by virtue of law.
Notarial activity, as a type of legal services, has a number of common features with public services: it is regulated by the state, addressed to an unlimited circle of persons, provided by authorized entities, demanded by service recipients, implies compensation.
In the second paragraph - "Advocacy as a sphere of providing services to the population in Russia" - the issues of the historical formation of the institution of the bar in Russia, the features of advocacy as a sphere of providing services to the population are considered, and the features of advocacy as a type of legal service are revealed.
Legal assistance, as a complex constitutional and legal institution, covers, among other things, the activities of notaries and lawyers. Moreover, for lawyers, as follows from the Federal Law "On Advocacy and Advocacy" of 2002, the provision of qualified legal assistance is the main function.
The Institute of Advocacy in Russia has enough long history. In the Brief Description of Trials and Litigations of 1715,20 chapter V contained a description of the participation of lawyers in litigation. According to the document under consideration, in the event of illness of the plaintiff or defendant, or other need, the lawyer, by special invitation, could replace one of them.
In our opinion, it is in the "Brief Image ..." for the first time that a lawyer is mentioned as a person who, on a professional basis, provides legal assistance in court.
According to the Federal Law of May 31, 2002 “On Advocacy and Advocacy in the Russian Federation” (Part 1, Article 1), advocacy is qualified legal assistance provided on a professional basis by persons who have received the status of a lawyer in the manner established by this Federal Law , individuals and legal entities in order to protect their rights, freedoms and interests, as well as to ensure access to justice.
The bar is understood as “a professional community of lawyers, which, as an institution of civil society, is not included in the system of state authorities and local governments, operates on the basis of the principles of legality, independence, self-government, corporatism and the principle of equality of lawyers” (Article 3 of the Law on the Bar).
Of course, despite the fact that the bar is not included in the system of state authorities and local self-government, it seems that the tasks assigned to it are of national importance and reflect the public interest of society.
Lawyer activity meets the signs of a public service and can be classified as a legal service. Varieties of legal services are legal assistance and qualified legal assistance.
Qualified legal assistance, in accordance with the current legislation of the Russian Federation, can be provided
20 Reader on the history of the state and law of Russia / Comp. Yu.P. Titov. - M.: TK Velby, Publishing House Prospekt, 2004. S. 154
citizens and legal entities, both professional lawyers and other persons with the necessary qualifications in the field of law and legislation. ■ . .
In the third paragraph - "Reinforcement in the legislation of the Russian Federation on the bar and notaries of public law and private law principles" - a description is given of the normative legal consolidation in the legislation of Russia on the bar and notaries of public law and private law principles of their activities.
In legal science, the theory of division of law into private and public is widespread. A number of branches of national law, depending on the subject, legal regulation, refers to the branches of public law, and others - to the branches of private law. This division of law is quite traditional. Quite aptly on this occasion, K.V. Knyazev notes: “The division of law into “public” and “private” in modern jurisprudence is a kind of starting point and commonplace - a fact that, although it needs explanation, is itself obvious. 21
At the same time, it is practically impossible to clearly distinguish between private law and public law in a particular legal branch, one can only talk about the predominance of private law or public law principles.
The discussions existing in the theory of law regarding public law and private law are based on the theory of public and private interests, which was actively developed in Europe and Russia in the 19th and early 20th centuries.22
It seems to us that public and private interests tend to be expressed in the rights and obligations of state authorities and local self-government, other public entities endowed with state powers, in the subjective rights and freedoms of citizens. Accordingly, the regulation of the procedure for the implementation of competence
21 Knyazev K.V. On the issue of private law: social and legal aspects // Lomonosov Readings 2002. / Digital library Faculty of Sociology named after M.V. Lomonosov / http://lib.socio.msu.ru/l/library?e=d-000-00-Olomon-00-0-0-
0prompt-10-4--0-11- l-en-50-20-help-0003 l-001-l-0windowsZz-1251-
10&a=d&c=lomon&cl=CLl&d=HASH01c3a249426dbcdd9dee23a3.11 (10/13/2010)
22 Agarkov M.M. The value of private law. M, 1920; Mikhailov P.E. New doctrine of public and private law / Jurid. notes, south IV. M., 1912; Mikhailovsky P.E. Essays on the Philosophy of Nature, vol. 1, Tomsk, 1914; Durdenevsky V.N. subjective law and its main division // Collection of scientific articles of the Society of Historical, Philosophical and Social Sciences at Perm University, vol. 1 - 1918; Shershenevich G.F. General theory of law. M., 1912; R. von Jhering. Geist d. gct. Rechts. 1870; Thon A. Rechtsnorm und subjectives Recht. 1878; and etc.
public authorities or the implementation and guarantee of the rights and freedoms of man and citizen can be considered as a regulation of the procedure for satisfying specific public or private interests.
However, when considering the features of the legal regulation of the activities of certain entities, difficulties arise with the definition of private and public legal principles, especially if they are engaged in both private law and public law spheres.
In this situation, in our opinion, the identification of public law and private law principles must be carried out through the study of the legal regime of the activity of a particular subject of public relations. The use of this approach allows, having studied the legal norms that form the legal regime of the activity of a particular subject, to identify the norms governing the satisfaction of a private interest or the norms governing the satisfaction of a public interest. Moreover, the legal regime of activity of subjects of public relations, especially those endowed with public authority, is formed from the norms of public and private branches of law.
Notary and advocacy is characterized by a combination of both public law principles and private law principles. As noted in one of the scientific and practical comments on the Federal Law "On Advocacy and Advocacy in the Russian Federation", the advocacy combines both public and private beginnings, and the elements of private and public in its organization and activities do not exclude, but combine complement each other.23
The ratio of private and public beginnings in the organization and activities of subjects of public relations depends on the legal status of the subjects themselves or the legal regime of this activity, formed by the norms of the private law branch, the public law branch, or both of them. Thus, private and public law principles in the organization and activities of the bar and notaries are reflected in the performance of specific actions by them (notarial activities and advocacy) and in the nomes of law that regulate these activities. The public law principle is associated with the formation of the legal regime for the activities of the notaries and the bar, using mainly the norms of the public branches of law, and the private law principle is associated with the use of the norms of the branches of private law to form the legal regime of activity.
23 Scientific and practical commentary to the Federal Law of May 31, 2002 N 63-F3 "On advocacy and advocacy in the Russian Federation" (item-by-article) / A.V. Arendarenko, A.N. Golovistikova, L.Yu. Grudtsyn and others; ed. A.G. Kuchereny. Moscow: Delovoy Dvor, 2009.
The fourth paragraph - "The relationship between law and morality in the legal regulation of the activities of state-powerful and other public-legal entities in the Russian Federation" - is devoted to substantiating the presence of private law principles in the activities of public authorities, as well as notaries and advocacy, through the study of moral principles and rules, enshrined in the current legislation of the Russian Federation.
The activities of state authorities and local self-government bodies, as well as their officials, are largely focused on ensuring the implementation of human rights, protecting the rights and freedoms of the individual, and satisfying the interests of the population. In order to clarify the role of the rights and freedoms of man and citizen in the construction of the Russian statehood and their protection by the state, we will refer to Art. 18 of the Constitution of the Russian Federation: “The rights and freedoms of man and citizen are directly applicable. They determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice.
The activities of public authorities and local self-government bodies should be focused on observing the principles of morality and ethics, especially when it comes to ensuring and protecting human rights and freedoms.
In the field of implementation and ensuring human rights and freedoms, tangible assistance to public authorities and local governments is provided by various public legal entities that are not public authorities, but vested in the state with powers to ensure human rights.
In particular, such public law entities include formations that provide legal assistance to the population: notaries and advocacy.
Compliance with ethical rules and restrictions is mandatory due to the status of a notary and a lawyer, the nature and amount of information they receive from individuals, the trusting nature of relationships with persons who have applied to them for legal assistance, and this also applies to all other aspects of the life of persons engaged in notarial or advocacy.
In the activities of notaries and lawyers, morality is more pronounced than in the activities of state authorities and local self-government, since it is notaries and lawyers who are called upon to provide legal assistance to the population, and, consequently, between them and persons
Those who turn to them often establish trusting relationships that are impossible between a person and a public authority.
In conclusion, the general result of the study is summed up, the main conclusions are formulated, and the prospects for the development of this problem in domestic legal science are determined.
The main provisions of the dissertation are set out in 15 publications of the author with a total volume of 5.6 squares, incl.
1. Akhrameeva, O.V., Call, S.O. Civil-legal and moral-religious aspects of the historical formation and development of the notary as an institution of state and law [Text] / O.V. Akhrameeva // Notarial Bulletin. 2007. No. 2. (0.5/0.25 sq.)
2. Akhrameeva, O.V. Evolution of the foundations of notarial legislation [Text] / O.V. Akhrameeva // News of higher educational institutions. North Caucasus region. Social Sciences. 2007. No. 5. (0.25 pp)
3. Akhrameeva, O.V. Stabilizing property of notarial practice [Text] / O.V. Akhrameeva // Notary. 2008. No. 6. (0.4)
4. Akhrameeva, O.V. Notaries as a sphere of public services: a general theoretical approach [Text] / O.V. Akhrameeva // Business in law. 2009. No. 2. (0.2 sq.)
5. Akhrameeva, O.V. The principle of morality in the public service of the notary [Text] / O.V. Akhrameeva // Notarial Bulletin. 2009. No. 8. (0.2 sq.)
6. Akhrameeva, O.V. Unification of the fundamentals of notary activity in the light of globalization processes [Text] / O.V. Akhrameeva // Notarial Bulletin. 2010. No. 1. (0.4 sq.)
7. Akhrameeva, O.V. State-legal aspect in the provision of public services by a notary in the Russian Federation [Text] / O.V. Akhrameeva // Notarial Bulletin. 2010. No. 9. (0.4 sq.)
8. Akhrameeva, O.V. Russian notaries today [Text] / O.V. Akhrameeva // Actual problems socio-humanitarian knowledge. Collection of scientific works of the Department of Philosophy of the Moscow State Pedagogical University. Issue X. Part IV. - M.: Prometheus, 2002. - 368 p. (1.5 sq.)
9. Akhrameeva, O.V. Russian notaries in the light of international experience: past, present, future [Text] / O.V. Akhrameeva // Western European
Civilization and Russia: General and Special: (Proceedings of the All-Russian Scientific and Practical Conference October 16-18, 2003 SSU). Pyatigorsk: PG71U, 2003. - 430 p. (0.3 sq.)
10. .Akhrameeva, O.V. The principle of morality in the system of principles of notarial activity in Russia [Text] / O.V. Akhrameeva// Russian law and the state: fundamental values and development trends. // Stavropol: Stavropol book publishing house "Thought", 2009. - 312 p. (0.2 p.l.)
11. “Akhrameeva, O.V. Public service of notarial activities [Text] / O.V. Akhrameeva // Bulletin of notarial practice. 2009. No. 4. (0.2 sq.)
12. Akhrameyeva. O.V. On the issue of improving the legislation of the Russian Federation regulating the provision of legal services by lawyers [Text] / O.V. Akhrameeva // State building and legal reform in the North Caucasian Federal District of the Russian Federation / Pyatigorsk, PSLU Publishing House, 2010. - 240 s. (0.3 sq.)
13. Akhrameeva, O.V. Correlation of private law and public law beginnings of notarial activities of the modern Russian state [Text] / O.V. Akhrameeva // Legal reality: state, prospects, problems of development (based on the materials of the North Caucasian federal district) / Stavropol: Stavropol book publishing house "Thought", 2010.-276 p. (0.3 sq.)
14. Akhrameeva, O.V. Some features of the provision of notarial services in foreign countries [Text] / O.V. Akhrameeva // Legal reality: state, prospects, problems of development (on the materials of the North Caucasian Federal District) / Stavropol: Stavropol book publishing house "Thought", 2010. - 276 p. (0.3 p.l.)
15. Akhrameeva, O.V. Features of protecting the interests of individuals by lawyers in foreign countries [Text] / O.V. Akhrameeva // Legislation and law enforcement in the North Caucasus: history and modernity. Collection of scientific articles. - Stavropol: Service School, 2010.-132 p. (0.4 sq.)
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Methodical comments
public goods - These are goods and services created outside the market sector of the economy. These are very real economic benefits that are useful to consumers. The creation of public goods requires the expenditure of resources that could be used to produce other goods. A public good, in contrast to a private good, is a good whose use or consumption brings profit in the form of greater utility or less cost to more than one person at the same time.
The public good is different two properties:
non-rivalry in consumption,
non-excludability.
Comprehensive characteristics of public goods:
1) non-competitiveness in consumption,
2) non-excludability from consumption,
3) non-selectivity in consumption (means that the consumption of a public good by one individual does not reduce its availability to others),
4) creating a positive externality,
5) collectivity in consumption (joint consumption of public goods),
6) indivisibility (unlike a private good, a public good cannot be divided into units of consumption and sold in parts).
public goods and services. Unlike purely public goods, public services are individualized goods provided by public authorities and governments to individuals and legal entities in a physical form, as a rule, in the form of interaction with citizens.
Examples p street services are:
Issuance of a document on entry in the register of homeowners in the department of municipal housing,
TBI services,
Consideration of applications and notifications of transactions economic concentration in the order of application of antimonopoly control measures,
Specialized registrations in the securities market,
provision of certificates of absence of debt when registering a legal entity.
The theoretical approach involves a clear specification of the service.
The empirical approach is to determine the functions associated with the provision of a public service
Signs:
According to the form of implementation - interaction with legal and individuals,
The obligation of a legally executed contract for the provision
The public service is characterized by the imposition and coercion of provision and consumption,
The sphere of distribution of public services is connected with the specification and protection of the property rights of individuals and legal entities. The spheres of social protection of the population, healthcare, education can be considered as the basic areas for the provision of public services,
A combination of paid and free provision (paid if state authorities can transfer their provision to private organizations selected through competitions),
Regulation of the process of providing services according to key characteristics: price, time, organizational standards for the provision (provision regulations),
International Public Goods - consumed by countries jointly, available to the entire population, provided to several countries, individual regions.
International anti-good- international terrorism, uncontrolled arms trade, drug trafficking, climate deterioration on earth, inciting ethnic hatred.
Examples– (international stability, environmental safety, localization of diseases of mass distribution)
Classification of international public goods
- by scope and distribution of effects from the production of international public goods
Global (pure) MOBs are used by everyone on the basis of the principle of non-exclusion (protection of the ozone layer, international security, international stability, environmental security, localization of diseases of mass distribution
Club (satellite communications, air corridors, benefits from participation in international organizations, unions, associations, trade unions)
Regional are distinguished by the forced nature of consumption, due to the geographical proximity of countries in relation to each other (sharing natural resources)
National - externalities distributed to other countries (national security programs, research and development, educational programs distance learning, information Technology, investment in healthcare)
- according to the degree of consumption
publicity of consumption (global (net) goods
Limited public consumption (e.g. club goods)
- according to the degree of equality of distribution of benefits ( spillover effect)
Equality in the distribution of benefits (stabilization of the exchange rate of world currencies),
An unequal distribution of benefits, where an individual country may benefit more than other countries from using the IPS, i.e. different countries have different values for, for example, developed medicines.
- according to the degree of solution and implementation of the global task
public services as intermediate characterized at the stage of product development or creation (research development, vaccine development),
final public services are at the stage of solving the problem as a whole (curing a disease that has a massive spread).
Overflow means that with a sufficiently significant number of users of the good, a further increase in their number leads to the fact that individuals begin to interfere with each other (non-rivalry disappears).
Features of the formation of demand for public goods, in contrast to private ones:
In the case of private goods, individuals face the same price. Differences in their preferences are manifested in the fact that they purchase different quantities of goods at a given price. The public good in the same amount goes to each of the consumers. Differences in preferences are manifested in the fact that individuals show different marginal willingness to pay for a given amount of good.
With optimal production of a public good, the marginal rate of transformation of this good into a private good is equal to the sum of the marginal rates of substitution of two goods for all individuals participating in consumption. This statement is called Samuelson's condition for the Pareto-optimal production of public goods.
For a large number of consumers, the following equality can be represented: MRS a gx + MRS in gx + ... + MRS n gx = MRPT gx.