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Degree of a readiness of a problem of research


The manufacture problematics on affairs about administrative violations as kind of administrative process is actively developed now in an administrative law science. Proceedings of such authors as D.N.Bahrah, K.S.Belsky, A.A.Dyomin, A.S.Dugenets, JU.M.goat, P.I.Kononov, B.M.Lazarev, V.A.Lorija, S.N.large object, I.V.Panova, B.V.Rossinsky, N.G.Salishcheva, V.D.Sorokin, J.N.Starilov, JU.A.Tikhomirov, N.J.Hamaneva, A.P.Shergin, V.A.Jusupov, A.JU.Yakimov, etc.
form doktrinalnuju a basis modern pravoponimanija administrative process.
Directly separate aspects of administrative investigation are investigated in works of such modern writers as A.P.Korenev, A.I.Mikulin, I.O.Filonenko, A.N.ShChekolodkin, etc., however with rare exception (A.P.Zrelov, E.A.Klokov, A.S.Telegin) the system researches directed on working out of the specified problematics at conceptual level, in an administrative law science for today are absent.
The purpose and problems of dissertational research. The dissertation purpose is theoretical working out of bases of a legal regime of administrative investigation as independent stage of manufacture on affairs about administrative violations and development of offers on their embodiment in a positive law. Achievement of this purpose is carried out by the decision of following problems:
– Research of essence and the legal nature of administrative investigation as remedial form of administratively-jurisdiktsionnoj activity;
– The characteristic of administrative investigation as independent procedural stage of manufacture on affairs about administrative violations;
– Research of system of the bodies, authorised to carry out administrative investigation;
– Specification of specificity of remedial statuses of the persons participating in business about administrative violation, at a stage of administrative investigation;
– The analysis of a circle of subjects of the is administrative-remedial legal relations participating in administrative investigation with a view of assistance to manufacture on affairs about administrative violations;
– Definition of the maintenance of administrative investigation as systems of the legal proceedings directed on an establishment of circumstances, having the jural significance for correct adjudication about administrative violation;
– Ordering and specification of a remedial mode of administratively-jurisdiktsionnyh certificates mediating occurrence, development and fixation of results of administrative investigation;
– Formation of offers on perfection of the legislation, directed on increase of efficiency of institute of administrative investigation on affairs about administrative violations.
Object and subject of dissertational research. Object of dissertational research is set of the jural relations under administrative law mediating administrative investigation as an independent stage of manufacture on affairs about administrative violations. As an object of research set of the rules of administrative law forming remedial institute of administrative investigation, and also the tendency and prospect of development of the given legal institution in modern politiko-legal conditions acts.
Methodological basis of research. The general method of dissertational research is the method of dialectic materialism.
Some groups of more private methods have been used also: is formal-logic methods (the analysis, synthesis, abstraction, generalisation, an induction and deduction, analogy); chastnonauchnye methods in the field of state-legal researches (is concrete-sociological, a method of dogmatic interpretation – system, historical, grammatical, logic).
The theoretical base of dissertational research was constituted by works of such representatives of a science of administrative law, as D.N.Bahrah, K.S.Belsky, F.A.Vasilev, I.A.Galagan, E.E.Genzjuk, V.V. Golovko, A.N.Guev, V.V. Denisenko, A.S.Dugenets, A.P.Zrelov, I.S.Kiljashanov, E.A.Klokov, S.D.Knyazev, JU.M.goat, P.I.Kononov, A.P.Korenev, A.K.Kostylev, S.I.Kotjurgin, V.V. Lazarev, V.A.Lorija, M.V.Malakhov, M.J.Maslennikov, V.A.Melnikov, A.I.Mikulin, A.A.Mihajlov, A.N.pozdnyshov, L.L. Priests, E.N.Ren, E.R.Rossinsky, B.V.Rossinsky, N.G.Salishcheva, V.E.Sevrjugin, S.M.starling, V.D.Sorokin, J.N.Starilov, M.S.Studenikina, A.S.Telegin, V.F.Fefilova, I.D.Fialkovsky, I.O.Filonenko, O.V.Tchekalin, S.I.Chushkin, A.P.Shergin, S.M.Shtefan, A.JU.Yakimov, O.M.Jakuba, etc.
In work works of scientists-lawyers on the general theory of law, criminal trial, civil procedure, arbitral procedure, such as N.G.Alexander, S.S.Alexey, I.V.Benedik, A.V.Gagarin, I.J.Djurjagin, V.V. Ershov, G.A.Zhilin, I.M.hare, A.S.Koblikov, A.V.Malko, M.N.Marchenko, N.I.Matuzov, JU.K.Osipov, G.L.Osokin, V.N.Protasov, D.G.Talberg, M.K.Treushnikov, M.A.Cheltsov-Bebutov, M.D.Shindjapina, V.N.ShCheglov also are used, etc.
The empirical base was constituted by materials pravoprimenitelnoj, including the judicial-arbitration practice presented by decisions of federal arbitration courts of Northwest district, the North Caucasian district, Volga region district, Far East district, the Moscow district, the Central district, decisions of arbitration courts of the Kaliningrad area, the Moscow area, the Novgorod area, materials of 500 administrative manufactures, the published statistical data, results of sociological interrogations. As information base of research the international legal acts, laws and other standard legal acts of the Russian Federation have been used.
Scientific novelty of work consists in theoretical working out of bases of a legal regime of administrative investigation as forms of the remedial knowledge which maintenance is formed by system of the legal proceedings which functional purpose consists in an establishment, fixation, legal qualification and remedial registration of all circumstances having the jural significance for correct adjudication about administrative violation. Functional independence of investigated set of legal proceedings within the limits of purposes administratively-jurisdiktsionnogo process causes their isolation in the independent procedural stage characterised by special circle of subjects and a set administratively-written pleadings, mediating dynamics and fixation of results of remedial activity. Besides it, scientific novelty of work is defined both the statement of a problem, and the approach to its research taking into account insufficient degree for today of its readiness.
In the dissertation a number of positions and the conclusions which are taken out on protection is formulated.
1. The intrinsic precondition of isolation of administrative investigation in a manufacture stage on affairs about administrative violations is mediated by system of remedial problems functional independence forming the maintenance of administrative investigation of the legal proceedings directed on an establishment of all circumstances of administrative violation, their fixation, legal qualification and remedial registration. Told is a methodological basis of formation of a remedial mode of administrative investigation as forming a certain stage of movement of manufacture on business about administrative violation of functionally homogeneous set of the legal proceedings formally isolated from other stages by circle of subjects and a set administratively-written pleadings, mediating occurrence, development and end of a corresponding remedial stage.
2. With a view of observance of the rights and legitimate interests of subjects of administratively-jurisdiktsionnyh legal relations and maintenance of efficiency of a legal mechanism of remedial knowledge of manufacture on affairs about administrative violations change of the approach fixed in a positive law to administrative investigation as is necessary for a special stage of the process which carrying out is limited by is standard certain set of kinds of administrative violations. Legal fastening of administrative investigation as the general procedural stage which application is caused by insufficiency of the information on all circumstances which are coming under to finding-out on business about administrative violation, and impossibility of operative reception of missing data out of a binding to certain kinds of administrative violations is necessary. The impossibility of an establishment of the circumstances important for adjudication about administrative violation in time, 2 articles 28.5 KoAP established by a part the Russian Federation for executing a process-verbal about administrative violation should be the remedial condition necessary and sufficient for appointment and carrying out of administrative investigation.
3. Strengthening of due processes of law of the rights of the person in which relation manufacture on business about administrative violation is led, at a stage of administrative investigation demands legal inclusion in a circle of administratively-jurisdiktsionnyh certificates which are objects of the remedial appeal, definitions about application of measures of maintenance of manufacture on business about administrative violations. For this purpose the part of 4 articles 30.1 KoAP the Russian Federation should be stated in the following edition:
ź4. Definition about refusal in commencing a suit about administrative violation, and also definition about application of measures of maintenance of manufacture on business about administrative violation will be appealed according to the rules established by the present chapter╗.
The part of 1 article 30.7 KoAP the Russian Federation should be added by point 6 of the following maintenance:
ź6. About definition cancellation about application of measures of maintenance of manufacture on business about administrative violation in case of absence of the bases for their application╗.
4. The part 3 items 28.7 KoAP the Russian Federation does not contain the instructions requirement in definition about commencing a suit about administrative violation and carrying out of administrative investigation of data on the person who has made wrongful acts (inactivity) that the Russian Federation conflicts to a part of 3.1 articles 28.7 KoAP, establishing a duty of the authorised official on dispatch or delivery on receipt within three days of a copy of definition about commencing a suit about administrative violation and carrying out of administrative investigation. In this connection the part of 3 articles 28.7 KoAP the Russian Federation should be added by the instructions requirement in definition about commencing a suit about administrative violation and carrying out of administrative investigation of data on the person in which relation it is taken out, and in case of absence of such data – entering into definition of corresponding record.
5. The estimation of administrative investigation through a prism of its functional purpose allows to prove methodological approaches of overcoming of standard uncertainty of the maintenance of the given stage of manufacture on affairs about administrative violations. Representing the form of remedial knowledge, administrative investigation is formed by set of statutory means by means of which representatives body, reveal the official, establish and fix data on the circumstances necessary for correct adjudication about administrative violation. It is a question about established KoAP the Russian Federation evidences for filling used regarding 1 article 28.7 of the Code of the formula źother legal proceedings╗ other maintenance will lead to impossibility of use of the data received during administrative investigation for realisation of purposes of manufacture on affairs about administrative violations. From this follows, that as a set of the remedial means accessible to the subject of administrative investigation, and remedial modes of their application, are defined by is standard established rules of collecting of proofs in administrative process.
6. The analysis of positions of the current legislation testifies to absence of a legal mechanism of carrying out of examination in a stage of administrative investigation as instructions in article 26.4 KoAP the Russian Federation on compulsion of definition about appointment of examination for execution by experts or establishments to which examination carrying out is entrusted, concerning the state judicial-expert establishments is levelled by Federal act article 19 źAbout the state judicial-expert activity in the Russian Federation╗, imperatively limiting a circle of the bases of expert investigation in the state judicial-expert establishment court rulings, decisions of the judge, the person making inquiry, the inspector or the public prosecutor. With a view of overcoming of the given collision expansion of a circle of the bases of expert investigation in the state judicial-expert establishment by inclusion in it of definitions of the official spending administrative investigation is necessary.
7. With a view of increase of efficiency of remedial knowledge at a stage of administrative investigation expansion of a functional purpose of the remedial form of the expert in which competence along with existing function of assistance in detection, fastening and withdrawal of proofs, and also in application of means, consultation function should be included that will allow explanatories of the expert to attach significance of the evidentiary information is necessary. With a view of realisation of this offer it is necessary to regulate is standard a remedial order of research of explanatories of the expert in the form of interrogation, both at a stage of administrative investigation, and during a legal investigation about administrative violation, with granting to the persons participating in business, the rights to declare the petition for attraction in process of the expert and to participate in its interrogation.
Validity and reliability of the scientific positions which are put forward in the dissertation, are provided by application of the approved methods and techniques of scientific research, observance of methodological requirements of theory of state and law, careful selection of an empirical material, generalisation of practical experience.
The Scientific-theoretical and practical importance of work consists that it represents complex research of problems of the administrative investigation, allowed to formulate conclusions which can be used at the further studying of a problematics administratively-law of procedure. The practical importance of research consists in working out enough concrete recommendations which can be used in the course of perfection of legislative regulation of relations mediating administrative investigation; results of research, along with use in research and practical activities, can find the application in educational institutions of a legal profile in the course of teaching of a course of administrative law and specialised training courses.
Approbation of results of research. Theoretical positions, practical offers and recommendations were reported at scientifically-practical conferences, introduced in educational process, and also reflected in five published scientific articles of the author.
The dissertation structure is caused by problems of scientific research carried out within the limits of the present work. The dissertation includes the introduction, three heads consisting of seven paragraphs, the conclusion and the literature list.















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A source: Arzumanjan Andrey Albertovich. ADMINISTRATIVE - LEGAL REGULATION OF ECONOMIC RELATIONS IN THE RUSSIAN FEDERATION (ON THE EXAMPLE OF A FUEL AND ENERGY COMPLEX). ABSTRACT dissertation for the degree of candidate of legal sciences. Moscow 2008. 2010

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