<<
>>

a place of administrative process in system of legal process.

In a modern science of administrative law there is no uniform approach to definition of concept of administrative process and the concept of administrative procedures connected with it. In our opinion, for consideration of the given problem first of all it is necessary to address to scientific researches in the field of theory of law, namely, to questions of a parity material and remedial, to the general concept of process and to concept of legal process.

Without research of the specified general-theoretical categories it is impossible to resolve the problem specified above.

Till now in the field of theory of law the term «legal process» is not accepted by all researchers, thus it continues to be investigated within the limits of separate branches of law. To legal process as legal category as four large monographic researches are devoted the independent legal phenomenon only, concerning by the Soviet period of development of the Russian jurisprudence, the last belongs to V.N.Protasov and concerns to 1991 [3 [4]. The subsequent works, anyhow concerning legal process, have private character.

For studying of concept of legal process (from an armour. processus - advancement) is expedient to consider in the beginning a problem of a parity material and remedial in the right. Traditionally in theory of law this question is shined as follows. Affirms, that norms of all branches of law are directed on regulation of public relations according to problems and state functions at the given stage of its development. Laying down law, the state also defines also forms of their realisation, thereby regulating activity of corresponding subjects on application and execution of these norms. Thus, there are special rules of law which on the character differ from material instructions and concrete branches of the law of procedure [5] are called remedial, forming in the set. It is considered, that remedial and the substantive law correspond as the form and the maintenance. Remedial rules of law serve as the form of realisation and display of norms of the substantive law.

Differentiation of the legal phenomena on material and remedial from general-theoretical positions long time was not spent. Existence of the given differentiation was defined mainly by presence of legislatively isolated branches civil remedial and the criminal procedure. In this connection reasons on M.S.Shakarjan and A.K.Sergun's given question are represented interesting: « ... The right shares on a number of branches from which only two are called as remedial - criminal procedure and grazhdansko-remedial. Accordingly rules of procedure norms of these branches of law admit. The concept of "material branch of law» does not appear in the legal system at all. About the substantive law, the substantive rule, material legal relation speak only when pass to civil or to criminal trial when it is necessary to separate and not to mix them with the law of procedure, the rule of procedure, remedial legal relation. Civil law in itself nobody names "material" just as do not name "material" in itself collective-farm, labour, ground and other branches of law. Such name is not present in one of existing statements of system of our right; there is no it and in titles of textbooks on corresponding branches of law; it is not present in acts.

Necessity for an additional epithet "material" appears only at the reference to process »[6].

Following advice specified above scientists, we will address to process and we will continue a statement of the traditional point of view of theory of law on it [7]. Presence of the law of procedure is caused by requirement of technology, the organisation of process of realisation of norms of the substantive law. The originality of a subject of legal regulation of rules of procedure sees that it includes the public relations arising in the course of realisation of norms of all branches of law. The substantive law regulates subject ("material") relations. The law of procedure - the organizational right. It represents systems of the norms regulating legal procedures at the resolution of disputes or at definition of responsibility for offences. According to M.N.Marchenko, the law of procedure - difficult under the maintenance and structure the procedural right owing to the subject are the relations arising in connection with breach of law or dispute in the right. Procedures should provide activity jurisdiktsionnyh the bodies, adequate to exact application of norms of the substantive law to concrete vital situations, exclude both actual, and legal errors. Complexity of this kind of analytical legal activity causes position of the law of procedure as detailed system of organizational norms.

According to the Constitution of the Russian Federation in Russia the theory of law recognises five kinds of process: civil, criminal, administrative, arbitration and constitutional. We will address to the Constitution of the Russian Federation that it will be convinced available mentions of process kinds of the Organic law of our country.

According to point on"articles 71 of the Constitution of the Russian Federation under the authority of the Russian Federation are criminal procedure, grazhdanskoprotsessualnoe and the arbitrazhno-remedial legislation. To

To joint conducting the Russian Federation and subjects of the Russian Federation the point "to" article 72 of the Constitution of the Russian Federation carries administrativnoprotsessualnoe the legislation. In the list of the remedial

Legislations there is no mention about konstitutsionno

The remedial legislation. However the part of 2 articles 118 of the Constitution of the Russian Federation says, that the judicial authority is carried out by means of

Constitutional, civil, administrative and criminal

Legal proceedings (my italics - And. M).

Thus, it is possible to make of the maintenance of specified articles some interesting conclusions. First, in item 118 of the Constitution of the Russian Federation there is no concept of arbitration legal proceedings, but of item 71 there is a concept of the arbitrazhno-remedial legislation. It means, that the legislator or has forgotten it to mention, or has carried to civil legal proceedings. Secondly, under konstitutsionno-remedial

By the legislation the body of rules Federal is understood

The constitutional law № 1-FKZ from July, 21st, 1994 (in red. FKZ from December, 15th, 2001) «About the Constitutional Court of the Russian Federation» [8] which establishes general rules and features of manufacture in the Constitutional Court of the Russian Federation. And, thirdly, the legislator identifies process with legal proceedings.

Here it is necessary to stop more in detail on a question of a parity of process and legal proceedings and to consider possibility of existence of the judicial law. It is possible to assume, that the rules of law regulating the judicial organisation, constitutional, civil and criminal

Legal proceedings, form uniform branch of the judicial law.

The scientists developing the given theory, approve, that «the law of procedure is a judicial law of procedure, legal process is a litigation, legal proceedings» [9]. They consider, that the idea of the judicial law «expresses not only the scientific concept, theoretical model, but also, first of all, the real-life phenomenon of a legal life, the law in force that is clearly visible from a parity of three separate, but branches of law integrally connected with each other — judicial organisations, civil legal proceedings and criminal

Legal proceedings »[10]. Thus, the decision of a question on existence of the theory of the judicial law is put in dependence on the decision of a question on that, there is available a judicial law as branch in the legal system or not. The given position has been subjected fair, in our opinion, to criticism from a number of scientists. So, at discussion of a problem of the judicial law on enlarged session of sector of theoretical problems of justice of Institute of the state and the right A.A.Dobrovolsky has told, that the idea of the judicial law raises the big doubts as in connection with acceptance of this concept it is not offered neither reorganisations of system of the law in force, nor creation of" the judicial law code », merges criminal and civil procedure [11].

One of participants of discussion of the quoted monography at session of Scientific and advisory council of the Supreme Court of the USSR A.D.Bojkov has expressed as follows: «Creation of complex legal branch — the judicial law leads to ignoring essential distinction in sphere of grazhdansko-remedial and criminal procedure relations, to the concept of the criminal claim and other erroneous positions deforming prospects of development of corresponding branches of the legislation and a science... The Functional role of the theory of the judicial law is not shown by authors.

On a way of a separation of the law of procedure from their its material basis waits for more losses, than acquisitions »[12 [13].

In our opinion, the assumption of judicial law existence as branches of law is insolvent. However it is necessary to recognise, that the judicial law theory has the special subject which basis is constituted by those general moments in the maintenance of remedial branches which are caused by the nature and the organisation of such specific and important body of jurisdiction as court. But the court is not the unique subject of jurisdiction, therefore such approach to definition of process does not open essence of all volume of a considered category.

For research of such legal category as process, first of all, it is necessary to define concepts material and remedial. It is possible to speak about material and remedial with reference to the right in wide, philosophical sense, fixing an accessory of the phenomena to a matter as to a philosophical category. Here it will be pertinent to give V.N.Skobelkina's of word: « If to start with philosophical understanding of a matter as the objective reality existing out of and irrespective of human consciousness the rules of law representing a fruit of conscious cogitative activity of people, hardly it is possible to consider material. If to apply to them this term, recognising that, being created, they continue to exist in the materialised kind already irrespective of consciousness of people it is necessary to name material and those norms which now are called as the remedial... And nevertheless, despite obvious discrepancy of this term to replace it with another there is no necessity as it has strongly entered into legal science terminology. It is necessary to take only into consideration its convention ».

Authors of the Legal encyclopaedic dictionary give the following, more concrete definition of the substantive law: «the Substantive law

— The legal concept designating rules of law with which help the state carries out influence on public relations by direct, direct legal regulation. Norms of the substantive law fix patterns of ownership, legal status of property and persons, define an order of formation and structure of the state bodies, establish a legal status of citizens, the bases and limits of responsibility for offences etc. As object of the substantive law act, thus, economic,

Property, labour, family and other relations. The actual (material) maintenance of the given relations constitutes an objective basis, with reference to which norms of the substantive law define the mutual rights and duties of their participants »[14 [15]. Authors of the Russian legal encyclopaedia a little differently define the substantive law, but already focus attention on existence of the law of procedure:

«The substantive law - system of the rules of law providing influence of the state on public relations by their direct regulation. It is accepted to distinguish the law of procedure which fix forms and an order of realisation of the substantive law, a condition of its protection» 2 from the substantive law.

At the Russian legal encyclopaedia also there is a definition of the law of procedure interesting, in our opinion: « The law of procedure - those branches of legal system of the state which define an order and conditions of application and substantive law protection. It is a traditional sight at the law of procedure, underlining its office in relation to the substantive law a role. In the modern legal literature rather independent role and value of the law of procedure which unlike the right material is steadier in relation to an economic conjuncture is marked, is an indicator of a maturity of democracy, real garantirovannosti the rights and personal freedoms... In theory of law nowadays the thought that official application of any norm of the substantive law should be carried out in the certain remedial procedure allocating the subject pravoprimenenija, an order of its activity and mutual relations with the obliged party, an order of the appeal of the certificate pravoprimenenija and t.d is dominating... »\

It is necessary to notice, that the author of the given definition has obviously hurried to name such approach to concept of the law of procedure dominating though, in our opinion, it will be such in the near future, both in theoretical, and in the legislative plan.

At last, it is necessary to mention the relation to a case in point of authors of the Legal encyclopaedia under the general edition of academician B.N.Topornina. The encyclopaedia defines remedial legal relations as «settled by norms of the law of procedure the relations arising in connection with realisation of justice between court, on the one hand, and participants of legal proceedings (process) - with another. Depending on in what sphere of justice there are these relations and they are regulated by what branch of the law of procedure, discriminate civil, arbitration and criminal procedure

Relations »[16 [17]. However at the same encyclopaedia there is article devoted to administrative process which will be considered more low.

The beginning of discussion among scientists-lawyers about a parity

Material and the law of procedure have put treatments and statement different interpretations about material and remedial K.Marx who wrote, that «the substantive law. Has the necessary, remedial forms inherent in it. Process and the right as are closely connected with each other as, for example, forms of plants and animals are connected with meat and blood of animals. One spirit should animate process and laws for process is only the form of a life of the law, hence display of its internal life» [18].

In the fiftieth years of the XX-th century representatives of a science of the general theory of law, leaning against K.Marx's specified formula, had been stated the original point of view concerning character pravoprimenitelnoj to activity. According to P.E.Nedbajlo, «the remedial form is inherent in any activity on application of rules of law» [19 [20]. Approximately in the same key the L has expressed also. M.Javich. He considered, that «rules of procedure regulate also process of application of hypotheses and dispositions», and not just sanctions of substantive rules. This author proved presence in the legal system «the uniform remedial branch of law, called to resolve a uniform problem of regulation of relations on application of legal rules».

Developing the same point of view, V.M.Gorshenev believes, that «norms of the law of procedure act as an original superstructure over norms of the substantive law and consequently are directed on regulation of the public relations developing in the course of application of norms of the substantive law in the presence of circumstances, demanding this application. They have an overall aim - to promote achievement of the result pursued by norm of the substantive law». V.M.Gorshenev underlines, that «in a legal regulation subject it is necessary to discriminate two complexes of relations:« organizuemye »and organizational. The first constitute a subject of regulation of norms of the substantive law, and organizational - a subject of norms of the law of procedure» [21].

Efforts of supporters of the stated concept have been consolidated in written at participation and under P.E.Nedbajlo and V.M.Gorsheneva's edition of the collective monography [22]. Authors approve, that it is necessary to understand set of the homogeneous procedural requirements shown to actions of participants of process and directed on achievement of certain financially-legal result as the remedial form. Such position has been subjected criticism from a number of scientists. For example, S.S.Alekseev believes, that association of legal procedures of activity of all state bodies under a heading "process" exsanguinates, emasculates this rich and substantial concept and that «not any procedure of fulfilment of legal acts settled by the right can be recognised by process in that special legal sense which has historically developed and is accepted in the legislation, in practice, in a science» [23].

And. M.Vasilev considers, that «K.Marx wrote not about the faceless abstract remedial form, and the remedial form of legal proceedings, and only legal proceedings» [24]. On M.S.Shakarjan and A.K.Sergun's same question write the following: « Supporters of the theory of the legal remedial form prove the conclusions K.Marx's widely known formula that «process is the form of a life of the law». Meanwhile if to address to K.Marx's work «Debate concerning the law on wood theft» it is easy to understand, that K.Marx meant, first of all, a parity of criminal law with criminal trial, and, hence, talked about right enforcement, on what the attention in the legal literature was already paid. K.Marx's formula does not give the basis for designing of the law of procedure with reference to each branch of the substantive law. Development of uniform concept of the remedial form would be possible only under condition of submission of activity of all bodies and officials to the same rules that is practically impossible and it is not necessary »[25].

Concerning K.Marx's statement it would be desirable to notice the following. The scientists, studying the given problem, all time quote this statement, dropping words that process and the right as are closely connected with each other as forms of plants and animals are connected with meat and blood of animals. From this comparison that K.Marx meant a right and process parity is obvious, and not just criminal law and criminal trial. Also has put here at all in K.Marx's statement though, in our opinion, it absolutely precisely opens essence of a case in point, and in the approach to a parity material and remedial.

Opponents of legal process result the following example on which check correctness of the statement, that the remedial or material nature is inherent in rules of law irrespective of their accessory to certain branches. All rules defining an order of amercement, a taxation order, an inclusion order in electoral registers, etc., are remedial as they define an order of application of the right. But any of the named actions can be appealed in court and there is the business considered by rules GPK, and according to the operating remedial legislation all rules named above will be norms material contrary to those norms which define legal proceedings order on these affairs and are remedial according to the law. Hence, some scientists, the statement consider, that rules of procedure are what establish any order of application of the law, mismatches the current legislation.

First, in our opinion, a parity material and

Remedial at various levels unequally. There is a difference between a parity material and remedial in branches of law and in rules of law. At level of branches one without another cannot exist: the law of procedure without material is aimless, and the substantive law without remedial bezdejstvenno since the behaviour regulation is provided by possibility of the state compulsion which are carried out in the certain remedial form. [26] at level of rules of law of such interdependence is not present: norms of the law of procedure under corresponding conditions generate subjective laws of procedure which form and maintenances is not with material rights in the ratio, and represent itself the independent legal phenomena, which communication with material branch of law oposredstvovana branch of the law of procedure which structural element is the given rule of procedure. That is in rules of procedure there are as though material and remedial components, therefore accurate differentiation material and remedial it is important in pravoprimenitelnoj to practice where mixture of these categories leads to infringement of rights of citizens and the organisations, and also in area normotvorchestva where the coordination of instructions of material and remedial branches of law should be reached.

In this occasion And. M.Vasilev wrote the following: « At any position in a question of understanding of the remedial form it is impossible to deny, however, that studying of a role of rules of law in the legal regulation mechanism reveals two basic types of an is standard-legal regulation. The first provides a direct regulation of existing relations and it is necessary goes from their real maintenance, is rigid it is determined. The actual maintenance of public relations independent of the legislator constitutes that objective basis with reference to which rights and legal obligations of participants of adjustable relations are formulated by rules of law and through such form of legal communication there is a state influence on a course of their development. The second is not so rigidly connected by the maintenance of adjustable relations, and amplitude of the legislative discretion here big for it is a question of norms as though the second order, created as guarantees of realisation of the first and consequently specifying in ways of their realisation, a condition of protection of the established rights and legal obligations. As though terminologically to designate («reguljativnye and guarding","material and remedial» etc.) the fact of this phenomenon, it is fixed by a science and receives the reflexion in conclusions of theory of state and law »[27].

Secondly, it is necessary to consider in more details argument of opponents of legal process that if the assumption of theory of law of existence of any legal category mismatches the current legislation it is false. In our opinion, the theory of law can play a dominating role a present stage of the development in legislative process: to reveal so-called blanks in the legislation and to specify in discrepancies existing in it. Today in the Russian society there was an objective necessity for more detailed legal regulation of mutual relations of citizens and legal bodies with state bodies. It would Seem, enough to pass the law regulating rules of behaviour in sphere of given public relations, and the theory of law recognises at once existence of administrative procedures as parts of administrative process. However a problem of the given research is the substantiation of that fact, that in theory of law in general and in administrative law, in particular, has already ripened necessity for a recognition of such legal categories as legal process and administrative process.

Occurrence of the concept of legal process has caused sharp aversion from traditional protsessualistov. The basic arguments of opponents of the given concept have been stated in work «Problems of a parity material and the law of procedure» [28], the part from which already was resulted above. Cardinally other point of view on a case in point was stated in the research by V.N.Protasov [29 [30].

Strong points of the concept of legal process offered it are two theses: legal process represents a version of legal procedure; legal process takes in remedially-legal mechanism an element place, namely - legal relations. Thus, the author defines legal process as the version of legal procedure directed on revealing and realisation of material guarding legal relation that predetermines an originality of its substantial lines (obligatory presence as a part of the imperious subject; specificity of mediated measures; as a rule, high level of a standard regulation, etc.), and the main thing - the special mechanism of communication with financially-legal reguljativnoj sphere.

V.N.Protasov criticises supporters of legal process for an identification of process and legal procedure and for methodologically incorrect reception of "deducing" of legal understanding of process by semantic interpretation of a word "process" [31]. It is necessary will agree with V.N.Protasov's conclusion about an inaccuracy of an identification of process and procedure since from semantic interpretation of a word "process" follows, that process consists of procedures and is more the general concept in relation to the last.

Supporters of wide understanding of process also it is accepted to criticise that they lead up legal process to borders pravoprimenenija in general as jurisdiktsionnogo, and positive, for what, actually, and call this approach the wide. According to V.N.Protasov, critics have completely lost track of other serious lack of the given concept for which on the full basis it was possible to name it not wide, but the narrow approach. The author considers, that supporters of "wide" understanding of process, having settled possibilities of the criterion of differentiation of the phenomena on material and remedial on a way "dotjagivanija" process before procedure, have left «behind a board» huge layers of procedural relations which are not connected with right application.

The reason of similar criticism of the concept of legal process, in our opinion, lays in incorrect classification of legal forms of activity of the state. For a long time already in jurisprudence N. By G.Aleksandrovym and its followers it has been allocated two basic forms - law-making and pravoprimenenie [32]. S.S.Alekseev who allocates in the mechanism of legal regulation as the isolated legal forms law-making and pravoprimenitelnuju activity adheres to the Same position., In particular, it opens last as the uniform complex including both jurisdiction, and positive activity [33].

Allocation by supporters of legal process of such legal forms of activity as constituent activity and control process methodologically incorrectly. Both constituent activity, and control activity are consolidated by concept pravoprimenenija. In effect, any activity of the state except law-making is pravoprimeneniem since it is carried out within the limits of a legal field (more precisely, should so to be carried out, but it, unfortunately, occurs not always). The Same it is possible to tell and about actions of citizens and the organisations in a case when they enter any legal relations with public authorities, or in legal relations among themselves.

Thus, arguments of opponents of the concept of legal process can be generalised M.S.Shakarjan and A.K.Sergun's words: « Presence of certain procedural norms in each branch of law does not give the basis for allocation of special process. Norms of procedural character are in any branch of law and, obviously, they require certain limits in perfection. The organisation, certain orderliness, certainly, is necessary for realisation of legal instructions. But it does not mean, that excessive detailed elaboration, order complication that can complicate realisation of legal instructions only is necessary in all cases. At the same time it is impossible to identify any procedural rules with rules of procedure and to bring under concept of the remedial form (the law of procedure, legal process) diverse procedural rules among which the basic rules of procedure reduced to simple formality are diluted. Orderliness and the remedial form in it traditionally historically developed sense - not synonyms. The legal nature of independent rules of procedure cannot be shown to procedural rules. Presence of certain set of procedural rules in any branch of law is not the basis for their allocation as special rules of procedure »[34].

In our opinion, this statement cannot be accepted for an axiom at research of essence of administrative process. Orderliness of any process it will be inevitable to be its detailed elaboration, and orderliness of activity of state bodies will promote only to realisation of legal instructions. Definition

Concepts of legal process is difficult and up to the end not resolved problem of a science of theory of law which cannot be in detail enough considered within the limits of the given work. However, it is necessary to designate the relation to the specified question, since, in our opinion, the concept of administrative process (the administrative

Procedures in particular) should be logically connected with the concept of legal process.

The modern general theory of law characterises the mechanism of legal regulation of public relations as follows. The legal regulation mechanism expresses the active party of translation process normativnosti the rights in orderliness of public relations. Thus legal regulation represents long-term process which breaks up to stages, on each of which the special legal means in aggregate constituting the mechanism legal регулирования1 work.

Legal regulation includes following stages:

1) the edition of the rule of law and its general influence (a regulation of public relations);

2) occurrence of rights and subjective legal obligations;

3) realisation of rights and subjective legal obligations, their embodiment in concrete, actual behaviour of participants of the public relation;

4) right application.

And for realisation of rules of law in actual behaviour of subjects the edition of certificates of application of the right is necessary. It is a facultative stage of legal regulation which can exist between the first and second or second and third stages. [35 [36]

Thus, during legal regulation by the state of public relations there is a consecutive change of the legal phenomena, that is their movement from a condition of working out and the edition of rules of law to a condition of orderliness on the basis of these norms of separate aspects of life of the society expressed in application of the right. This movement, change of legal conditions grows out of fulfilment by the state and other subjects of public relations of the consecutive acts of will directed on achievement of certain legal results, on streamlining of a life of a society as a whole [37 [38]. It is possible to name such change of the legal phenomena conditionally legal process (the convention consists that the made definition characterises legal process in its widest understanding). And it is necessary to notice, that such understanding of legal process includes maintenance as legal regulation of public relations, and their protection.

Proceeding from the offered statement of a question, it is impossible, in our opinion, to identify such concepts as «legal process» and «legal procedure». Incorrect the statement Also is represented, that legal process represents the most perfect version of legal procedure. In our opinion, between the specified concepts there is absolutely other parity. By O.V.Jakovenko's definition, «legal procedure is the special is standard established procedure of the legal activity directed on realisation of norms of the substantive law and material legal relations based on them, protected from infringements by legal sanctions» 2. Thereupon it is necessary to agree with A.J.Yakimov's opinion that legal process and legal procedure correspond among themselves as the maintenance and the form [39].

Thus, legal process should be considered as activity of subjects of law on realisation of legal regulation of public relations and right application, and legal procedure - as the legal form of realisation of this activity settled by rules of procedure. Legal procedure defines an order of fulfilment by subjects of law of those or other legally significant actions which set forms legal process. M.Lazarev understood as legal process «system of the actions really made according to procedure by those or other citizens, the organisations, bodies and officials and system

The legal relations developing as a result and by means of these actions... As procedure usually understand an order of fulfilment of the actions necessary for performance of any business, the task decision »[40 [41]. Speaking about legal procedures. M.Lazarev believed, that they define stages of legal process, their purpose, sequence and time frameworks, concrete actions at each stage, the bases of fulfilment and interrelation of these actions, ways of their registration and fixing. M.Lazarev underlined value of equipment of procedures by rules of law that provides their transformation into« a legal element of the law and order ». He marked:« Rules of law which fix or establish procedures, and, hence, and comprise

Ideal models of process, are procedural, and thereby and

2

Remedial ».

The parity of concepts "legal process" and "legal procedure" can be tracked on following examples. Activity of competent state bodies on acceptance of laws represents legislative process. An order of entering of bills in a legislature, an order of consideration and voting by these bills are the legal procedures defined by norms of a constitutional law. Activity of investigation agencies bodies, inquiries and vessels on investigation and consideration of criminal cases is a criminal trial. The procedure of separate investigatory actions, for example, survey of a scene, interrogation, a search, the order of carrying out of examination during trial, sentence announcement, etc. are the legal procedures provided by criminal procedure norms [42 [43].

Thus, with a view of the present work we consider legal process as settled by rules of procedure of the right set of legally significant actions of subjects of law on is standard-legal regulation of public relations and on application of the rules of substantive law, expressed in shape

Law-makings or pravoprimenenija. Or a little legally the significant actions constituting the maintenance of this or that kind of legal process, it is necessary to consider one as legal procedure.

It is necessary to notice, that from the same positions the international legal process in a science and the international law practice which leadership admits our legal системой2 recently is considered. Category introduction «the international legal process» is necessary to find the generalised definition of all kinds of activity of the states and other international subjects, directed on creation and realisation of requirements mezhdunarodnopravovyh, norms. This activity is carried out in certain forms, regulated by a special kind of norms which are called

Remedial, also it is directed on achievement of the defined

(normotvorcheskogo or normoprimenitelnogo) result.

The international legal process should be considered as a difficult legal design and the conceptual category consisting from

Co-operating elements which in aggregate constitute its structure. Therefore the international legal process is understood as the complex phenomenon, system of legal forms constituting it, namely: a standard basis, rules of procedure and principles; legal relations, remedial means; remedial manufactures, stages, a remedial mode; remedial forms. Thus, the international legal process is considered as the activity of the states settled by rules of procedure and other international subjects on creation and realisation of the material international legal norms fixed in the defined

Remedial forms.

On the basis of the stated representations about essence of legal process it is necessary to define the basic lines of this legal phenomenon.

First, fulfilment by the subject of law of separate legally significant action cannot be considered as process. Therefore legal process is always set, system of actions consistently made by subjects of law.

Secondly, the order of fulfilment of legally significant actions within the limits of legal process is regulated by right rules of procedure. The public processes which are not regulated by rules of law, cannot be considered as legal.

Thirdly, legal process as the vigorous activity of subjects of law consists of stages (stages), on each of which participants of process make according to the established procedure the certain legal acts directed on achievement of legal result.

Fourthly, an ultimate goal and result of legal process is standard settlement of public relations or realisation by subjects of legal relations of the rights and duties on the basis of corresponding substantive rules of the right.

As already it was mentioned above, legal process can proceed or in the form of law-making, or in shape pravoprimenenija. Pravotvorchesky process is carried out at a stage of working out, acceptance and introduction in action of normative acts and represents activity of competent state bodies, local governments and officials on preparation, acceptance (edition), publication and introduction in action of laws and subordinate legislation normative acts. Versions pravotvorcheskogo process are legislative process and normotvorcheskie the processes which are carried out by the President of the Russian Federation, heads of subjects of the Russian Federation, enforcement authorities and local governments.

Pravoprimenitelnyj process is carried out as at a stage of occurrence of legal relations in a real life of a society, and at a realisation stage by interested subjects of these legal relations of rights belonging to them and duties, and directed on settlement on the basis of corresponding rules of law of concrete vital situations and finally on law and order maintenance in a society. Pravoprimenitelnyj process includes 1) vlastnoorganizujushchuju activity of state bodies and officials; 2) activity physical and legal bodies on realisation of the rights and legitimate interests, and also on execution of the duties.

Activity physical and legal bodies on realisation belonging to them on the basis of rules of law of rights and the duties, directed on satisfaction of their own legitimate interests, maintenance of their self-organising and a normal mode of functioning (existence) is pravorealizujushchim process. Pravorealizujushchy process is carried out by subjects of law independently, as a rule, under their own initiative, without vlastnoorganizujushchego interventions of carriers of state-imperious powers, within the limits of the corresponding procedures provided by rules of procedure of the right.

Other kind pravoprimenitelnogo process is vlastnoorganizujushchaja activity of competent state bodies and officials on realisation assigned on them reguljativnyh and guarding functions - pravoorganizatsionnyj process. The given kind pravoprimenitelnogo process unlike pravorealizujushchego is carried out by competent state bodies by fulfilment imperiously-organizujushchih actions and application of coercive measures in the relation not the subjects of law subordinated by it. Depending on carried out functions (reguljativnoj or guarding) state bodies and officials carry out either operatively-executive, or law-enforcement activity.

Operatively-executive activity of state bodies consists in the organisation and maintenance of execution of instructions of standard legal acts with all participants of corresponding legal relations. This activity allows subjects of legal relations to realise the rights and legitimate interests, and also to fulfil the duties.

Law-enforcement activity of state bodies consists in acceptance of the state-imperious measures directed on suppression and disclosing of offences, protection of a public order and public safety maintenance, protection and protection of the rights and legitimate interests physical and legal bodies.

Both kinds pravoorganizatsionnogo process are carried out by means of fulfilment by competent bodies and officials of legally significant actions directed finally on the permission (settlement) of arisen legal business. Therefore each of these kinds pravoprimenitelnoj represents to activity

Itself a version of legal process: operatively-executive process and law-enforcement process.

At the same time the specified two kinds pravoorganizatsionnogo process can have both internal, and an external orientation that is to be carried out as in pravoprimenitelnyh bodies, and these bodies concerning other subjects of law. Hence, depending on an orientation pravoorganizatsionnogo process and limits of its realisation it is possible to allocate two kinds of this process: internal and external [44].

Internal pravoorganizatsionnyj process consists in application by competent bodies and officials of the positions containing in standard legal acts, concerning subordinates it on service or on work of persons and the organisations. Internal pravoorganizatsionnye processes are carried out in any body, the organisation, establishment or in system of bodies (the organisations, establishments) and directed on maintenance of steady, stable functioning of this organisation (system of the organisations) within the limits of the legal regime established for it. As examples of internal operatively-executive process processes can serve

Office-works, certifications and placements of personnel, etc.

External pravoorganizatsionnyj process consists in application by competent bodies and officials of the instructions containing in rules of law, in the relation not subordinated by it physical and legal bodies. External pravoorganizatsionnyj process is carried out by competent body or the official representing it outside of this body and directed on the permission of individual legal affairs subordinated to it. As examples of external operatively-executive process it is possible to result processes of licensing, the state registration, deliveries of various permissions, coordination, etc. To external law-enforcement processes concern, in particular, processes of attraction of citizens to administrative and the criminal liability, etc.

Thus, external law-enforcement and operativnoispolnitelnuju activity of the state bodies in management sphere can be generalised concept of administrative process.

The general-theoretical structure of legal process and place of administrative process in it is that, in our opinion. In end of consideration of the given question it would be desirable to give V.M.Gorsheneva's following words: «the True consisting in a recognition of wide and unified concept of legal process, divides destiny of a difficult way of the statement of all new. And degree of the statement of the unified legal process already now tests on itself all stages of this recognition - stages about which someone from great not without irony spoke:« At first speak «cannot be», then - «in it something is» and, at last - «and unless could be differently» »[45].

1.2.

<< | >>
A source: LAZAREV Igor Mihajlovich. Administrative procedures in sphere of mutual relations of citizens and their organisations with enforcement authorities in the Russian Federation. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2002. 2002

More on topic a place of administrative process in system of legal process.:

  1. § 1. Disciplinary manufacture and its parity with administrative process as a kind of legal process
  2. the Contents of process of communication interaction with allowance for stages of acceptance of administrative decisions in managerial process by staff
  3. § 2. Is administrative-legal dispute, as an element of administrative process
  4. §1. Concept municipal pravotvorcheskogo process and its place in system pravotvorcheskoj activity in the Russian Federation.
  5. administrative procedures - an independent kind Administrative process.
  6. the chapter I. The place of the norms regulating administrative legal proceedings, in system of the Russian right
  7. §-1.2. Interrelation of administrative justice with administrative process.
  8. 1.3. Investments into innovative technologies and a place of banks in the given process
  9. 2. A discipline place in educational process
  10. 2. Application of legal loans in process implementatsii rules of law of the European Union in national legal system of Slovak Republic
  11. Chapter 1. Administrative process and administrative procedures.
  12. the CHAPTER I PLACE And the ROLE of the IMMIGRATION POLICY In INTEGRATION PROCESS of EU
  13. the First chapter — «the Concept, essence and the legal nature of arrest of the goods, vehicles and other things, its place of system of is administrative-remedial means» — consists of three paragraphs.
  14. CHAPTER 1. MANUFACTURE ON DISCIPLINARY CASES AS THE COMPONENT OF ADMINISTRATIVE PROCESS
  15. 3.1 Organization podootovkn process of perfection of a control system
  16. 3.1 Organization of preparation of process of perfection of a control system
  17. the CHAPTER II. The ROLE And the PLACE of POLITICAL SOCIALIZATION In POLITICAL PROCESS of MODERN Russia
  18. 3.2 Realization of process of perfection of a control system
  19. CHAPTER 2. THEORETICAL BASES of PERFECTION of PROCESS of WORKING out of ADMINISTRATIVE DECISIONS In ENTERPRISE STRUCTURES
  20. Alimov Elmira Shaukatovna. the court Competence at a final process stage in civil process. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017, 2017