§ 1.4. Influence on financial relations in the field of mutual delegation of powers obshchepravovyh principles and principles of the financial (budgetary) right

Before to pass to research of influence specified in the name of the paragraph of principles to made comments legal relations, it would be desirable to be defined with the general introduction from which the author proceeded at analysis carrying out.

The basic not legal problem marked by considerable number of experts, investigating budgetary relations, - chronic deficiency of the federal budget, budgets of the majority of our regions, municipal unions. So, the federal budget for 2011-2017 is executed with дефицитом1. For example, in 2017 deficiency of the federal budget has constituted 1923,8 billion roubles or 2,1 % to an internal total product [91 [92].

In 2013 as a whole across the Russian Federation local budgets are executed with deficiency [93]. In 2012 with deficiency budgets of 67 regions, in 2013 - 77, in 2014 - 74, in 2015 - 76 regions, in 2016 - 80 regions, in 2017 - 70 regions [94] are executed.

In the conditions of an astable geopolitical situation, the negative phenomena in economic and budgetary spheres tend to increase. Many mark shortage of means for realisation not only problems of economic and social development, but also on execution of current account obligations. Partly specified circumstance is a consequence of the main not legal problem of institute considered by us - underfinancing of delegated powers. Therefore, the general parcel from which the author proceeds, analyzing legal questions of financial maintenance, in this case, the delegated powers, are, at least, the minimum sufficiency of incomes of public formation for performance of the obligations, and also equation of the corresponding budget. Otherwise, it is necessary to talk already about other scenario - the general underfinancing, the problem budget, the crisis phenomena. However such problems of the global plan to solve legal methods hardly it is possible, as they lay in a plane of economy and a policy more likely. A problem of the present research is working out of an effective legal mechanism of financing of the delegated powers which will promote timely both qualitative granting to citizens and the organisations of corresponding public services. Accordingly the author took a normal current of economic processes, absence of extreme situations and other negative phenomena for a basis.

As the second introduction it would be desirable to establish the fact of close interaction of branches of law which takes place at regulation of relations on financial maintenance of the delegated powers. Not doubting financially-legal character of considered relations, it is necessary to recognise influence on them of other branches of law. So, the constitutional law influences considered legal relations through federalism principles; separations of powers, inadmissibility of misuse of right. The administrative law brings the contribution, giving the method of legal regulation (imperative). And, at last, the civil law gives the chance to resort in financially-legal relations to the categories, such, for example, as, the obligation, losses of public formations at realisation of powers etc. the Author sometimes abuses use of civil-law terminology in the argument. However, monetary relations assume application along with is administrative-legal, civil-law approaches and receptions legal регулирования1.

It is difficult to disagree with S.V.Zapolsky who writes that in the present kind the financial right as the educational and scientific discipline represents a combination of set of norms and institutes of a constitutional law, administrative and it is administrative-law of procedure, partly civil law and norms of other branch accessory. From here occurrence of complex files of legal regulation, as traditional, and concerning new [95 [96].

The third general postulate to which the author - a priority of legitimate rights and interests of a society and separate citizens follows. Whereas transfer on subordinate level of the majority of powers is caused by necessity of the maximum affinity to the population, maintenance of the rights of citizens on favorable environment, social protection, medical aid and so forth, all rules of law should be designed so that to create for citizens optimum comfortable conditions for reception of corresponding state (municipal) services.

It is accepted to understand fundamental principles as principles, ideas by which are guided at regulation of certain relations or realisation of any activity. Unfortunately, principles of legal regulation of public relations on financial maintenance of the delegated powers legislatively are not formalized. However, in our opinion, such principles not only take place to be, but also demand legal fastening. System studying of the maintenance of standard legal acts about delegation of powers, them resursoobespechenii, allows to allocate the legal beginnings of regulation of considered public relations.

All principles which can serve as a starting point for correct understanding of analyzed questions, the author by tradition has divided into three blocks, namely obshchepravovye (interbranch), branch in this case bjudzhetnopravovye, but concerning financial maintenance of the delegated powers, and special principles, characteristic only for data субинститута1. As writes N.I.Himicheva, it is impossible to tell, that in a financially-legal science the theme about principles of corresponding branch of law has not received attention. Available scientific workings out have found certain reflexion in the legislation and the educational literature. However the legislation in this case not always is accurate enough and full, and textbooks by the financial right differ a variety of the list of principles and their interpretation [97 [98]. With a view of the present research those principles which, according to the author, directly influence considered legal relations will be analysed only.

Among obshchepravovyh principles we focus attention on such as legality, publicity, separation of powers, stability of the right (legislation), inadmissibility of misuse of right. The legality principle means necessity of strict observance of requirements financially-rules of law [99]. In sphere considered by us it is necessary to recognise as the most widespread infringements:

- Infringement of an order of registration of delegation of powers - the "veiled" delegation of power when delegation is not made out according to the legislation, and money resources for realisation of powers are transferred under the pretext of «other interbudgetary transfers» or at all are not transferred. For example, since 2014 to subjects of the Russian Federation the state powers on medical aid rendering, carrying out of preventive inoculations are transferred citizens of Ukraine, forcedly left territory of Ukraine and arrived on territory of the Russian Federation in emergency mass порядке1. Indemnification of expenses of subjects of the Russian Federation is provided in the form of other interbudgetary transfers;

- Chronic underfinancing (incomplete maintenance) delegated powers;

- No-purpose use of budgetary funds from the public formations executing transferred powers [100 [101].

Publicity principle (publicity [102], an openness [103], a transparency [104],

transparentnosti [105] - the author has dared to use the given words as synonyms), is shown in open (public) character of financial activity at all its levels [106]. Thus the transparency and availability of data on such activity should be provided. In the light of analyzed questions of financial maintenance of delegation, the transparency is important in relations "citizen-state", how many at interaction of subjects of delegation - public formations among themselves not so much. For the last this principle will consist in timely publication, and also in completeness and timeliness of finishing of the information, for example, about projects of normative acts about a delegation of power; about ways of their financial maintenance; about settlement volumes of means assumed to transfer; about design procedures of subventions; about usages of granting of the reporting etc. As it has already been told in the first paragraph, now transfer of mandates is carried out unilaterally, the account of opinion of the second party is not provided by the legislation. It is possible to argue with the author concerning a parity of concepts of an openness, availability and timeliness, however, in our opinion, out of time arrived information it is possible to recognise not given. Similarly with the information to which access is not provided. In the European legislation of some countries even the technical term characterising the given phenomenon «passive publicity» 1 is used. Actually, in this foreshortening the given postulate is fixed in item 36 BK the Russian Federation.

Also it is necessary to tell, that with realisation of the designated principle also there are difficulties. Its execution quite often has formal character. So, for example, the information on calculation of subventions by the transferring party is possible to data and will be adjusted with the public formations executing powers, out of time. Signing of subordinate legislation normative acts, for example, about an order of an expenditure of means of subventions, granting of reports etc. "backdating" practises. Cases not publications (or untimely publication) the departmental certificates containing settlement data on given financial maintenance [107 [108] Take place.

The principle of separation of powers as authors mark, pursues two main objectives - bar of claim by lapse of time of autocracy (dictatorship) and definition of functions of each of power branches, carrying out of their differentiation, and also definition of powers and the competence of bodies forming them власти1. As there is no the best way of modelling of behaviour as by means of money, to financial activity this principle has the direct relation. Distribution of budgetary powers is spent in the Budgetary code of the Russian Federation. In articles 153, 154 BK the Russian Federations are differentiated the rights and duties legislative (representative) and government executive powers (executive bodies of municipal unions) in the field of budgetary process. In particular, the first approve corresponding budgets, reports on their execution, carry out the control of execution of budgets. The second, provide drafting of the budget and its execution. The financial body, is besides, authorised on drawing up and modification of a summary budgetary list (item 217 BK the Russian Federation). The considered principle also is shown in the organisation of the state financial control, in particular its division into the external and internal financial control [109 [110] [111]. Bodies of the financial control of both branches of the power carry out control actions about legality of use of budgetary funds, including delegated powers directed on financial maintenance. A number of authors have expressed concern displacement of budgetary powers towards the executive authority. So, J.A.Krohina on the basis of the analysis of dynamics of the budgetary legislation specifies in decrease in a role of a legislative (representative) branch of the power in budgetary process at simultaneous strengthening of influence of an executive branch of the power [112]. Vasjanina E.L. Establishes the fact of change of budgetary appropriations by means of updating of a summary budgetary list by financial body. It, as well as some other authors, focus attention to absence on legislative level of a parity of the competence of the legislative and executive authorities on change of indicators of the budget that creates soil for uncontrolled use of means бюджета1. It is possible to agree, that such phenomena are observed and concerning financial maintenance of the delegated powers. However, it is impossible to tell, that the situation worsens, as «the recommission of functions» from the legislative executive authority took place always. For example, in spite of the fact that it is legislatively established, that distribution between public formations of subventions should be made by the law on the budget, unallotted the law interbudgetary transfers [113 [114] annually take place. The right to distribution of those or others, in this case, subventions is given by the same law to the Government of the Russian Federation or even to financial body. Thus, it is possible to establish, that in the course of the organisation of financing of the delegated powers there is some infringement of balance of separation of powers. Nevertheless, the author holds the opinion about importance of some mobility at budget execution. Scales of our state, necessity of fast reaction to deficiency of means (for example, at execution of the delegated powers), dictate special rules of decision-making. So, essential value is got by the organizational-technical measures allowing without displacing of the law (decision) about the budget in the shortest terms to redistribute financial streams. At all thus, their limits should be strictly outlined.

The following principle about which it is necessary to tell, is a principle of stability of the right (legislation). It is understood as a constancy, stability of the right, legal regulation principles, nepodverzhennost to fast and numerous changes [115], relative stability of accepted legal instructions in time, its predictability развития1. Stability of the legislation assumes bar of claim by lapse of time of situations when the law changes suddenly or unpredictable image [116 [117]. bystromenjajushcheesja the legislation represents itself as a brake of economic development more likely, there is a situation when subjects pravoprimenenija are not in time for the legislator. At the same time the requirement about stability of the legislation has no anything the general with conservatism, unwillingness of the legislator owing to a various sort of the reasons to accept new rules of law, to change or cancel existing for «the idea of stability of the law should not contradict more to the general requirement - constant perfection of the legislation caused by objective process of public relations» [118]. The condition of our legislation, including in the field of regulation of relations on delegation of powers does not demand comments. We will result one indicative example. From the beginning of economic reforms of the Post-Soviet period, the conceptual device, a circle of addressees, procedure of distribution of grants and subventions were modified about ten times. For example, originally the subvention was considered as the means allocated on a gratuitous basis for target financing (compensation) of expenses of budgets of other level. Then it became returnable. In the first edition of the Budgetary code of the Russian Federation, the subvention was understood as the target financial help given to the budget of other level or the legal body on a gratuitous basis. After 2004 it has received the new name - the form of interbudgetary transfers (instead of the financial help) and it has ceased to be given to legal bodies. Subventions began to go on execution of account obligations of subjects of the Russian Federation and the municipal unions, which financial maintenance according to Federal acts № 184-FZ and №131-ФЗ is carried out at the expense of subventions from the federal budget. Since 2008 of a subvention is a form of financial maintenance of the delegated powers which are given by a principle «one power - one subvention» 1. In 2013 the approach has changed, in view of introduction of a uniform subvention from which means some powers can be financed. We believe, that it not last innovations. If to adapt a stability principle for a theme of the present research, it would be desirable to suggest to paraphrase it as a principle of stability of financial legal relations in sphere of delegation of powers, actually, as well as long term of the delegation of power.

And last obshchepravovoj the principle which, in our opinion, has the direct relation to the delegated powers and which as practice shows, is frequently broken, is a principle of inadmissibility of misuse of right. In a general view inadmissibility of misuse of right is established in ch. 3 items 17 of the Constitution of the Russian Federation according to which realisation of the rights and freedom of the person and the citizen should not break the right and freedom of other persons. However these rights and freedom extend as well on legal bodies - in that degree in what they by the nature can be applicable to them [119 [120]. It is necessary to consider, that, as in ch. 3 items 17 of the Constitution of the Russian Federation are a question of the rights and freedom, the maintenance of a principle of inadmissibility of misuse of right is necessary for defining through concept of the interests underlying any right, belonging to the subject [121]. From themselves we will add, that misuse of right also is inadmissible in relations between public formations of different level. Having analysed explanations of financial bodies, lawsuits on financing of the delegated powers, in our opinion, it is possible to regard a way of application of following norms as misuse of right:

- About the right of unilateral delegation of powers without the consent (coordination) of subjects of execution (points 6, 7, paragraph 8 of item 7.1 of item 26.3 of the Federal act №184-ФЗ);

- About absence of the established duty to consider opinion of subjects by techniques of distribution and volumes of allocated means of subventions;

- About term of a direction of techniques of distribution of subventions and carrying out of verification of the specified initial data on them with regions (till August, 1st). Here it is possible to consider as abusing that fact, that the given work is spent by the bodies transferring powers as it is possible more close to the designated date. For example, the Federal agency of a forestry annual orders on verification of the initial data necessary for distribution between subjects of the Russian Federation of subventions from the federal budget for realisation of separate powers of the Russian Federation in the field of wood relations, approved during the period with 28 on 31 июля1. And taking into account that the coordination should be spent till August, 20th, at subjects of the Russian Federation practically does not remain to time for verification of data. Thus in case the subject of the Russian Federation has not had time to direct objection, they are not accepted, calculations are considered adjusted (item 5 of item 133 BK the Russian Federation);

- About the right of regions, municipal unions in addition to use own material resources and financial assets for realisation of the transferred powers (paragraph 20 of item 7 of item 26.3 of the Federal act № 184-FZ, item 5 of item 19 of the Federal act № 131-FZ) [122 [123];

- Substantiation of refusals in additional financing by the approved techniques, the accepted budget or its deficiency;

- About the right of subjects of the Russian Federation to transfer for execution to municipal unions the federal powers transferred by it by standard legal acts of the President of the Russian Federation or standard legal acts of the Government of the Russian Federation (point 7.1 of paragraph 8 of item 26.3 of the Federal act № 184-FZ (it is entered by the Federal act from July, 13th, 2015 № 233-FZ [124]). The powers transferred for realisation to enforcement authorities of the subject of the Russian Federation according to specified point, can

To be transferred by the law of the subject of the Russian Federation to local governments if other is not provided by standard legal acts of the President or the Government of the Russian Federation, providing transfer of realisation of corresponding powers. It is obvious, that in the conditions of chronic

Underfinancings subjects of the Russian Federation I will actively have right

subdelegir ovanija.

It is necessary to modify thus the legislation to minimise possibility of misuse of right at a stage of its application, instead of at a stage of judicial protection. Author's offers under the account of the given principle at regulation of relations on financial maintenance of the delegated powers are formulated in work.

To financially-legal relations on delegation of powers a responsibility principle, and also regularities (system) of the control which do not demand comments also are applicable.

Let's pass to the analysis of principles of the budgetary law and their adaptation to considered relations. We believe necessary to specify in such principles as budgetary federalism, equation of the budget, efficiency of use of budgetary funds, reliability of the budget.

Hardly it is possible to bring something new in working out of the legal concept of a principle of budgetary federalism, we will notice only, that it is basic for the legal institution of delegation of powers, including, regarding financial maintenance of their execution [125]. The investigated postulate directly is not fixed in the Budgetary code of the Russian Federation, however it consolidates such established principles of budgetary system

The Russian Federation as independence of budgets, equality of budgetary laws of subjects of the Russian Federation, municipal unions, unity of budgetary system of the Russian Federation, and during too time of differentiation of incomes, expenses and sources of finance of deficiencies of budgets between budgets of budgetary system Russian Федерации1. An error will not add budgets of municipal unions [126 [127] which are isolated owing to features of local government. For relations on financial maintenance of the delegated powers, budgetary federalism more than a principle, it the reason of their occurrence. The separate competence of public formations of different level assumes, first, institute of mutual delegation of powers, secondly, indemnification of additional expenses for their performance. Thus, full indemnification which not always is present in practice follows from the told.

We have allocated a principle of equation of the budget separately though, on our belief, it also is a component of the previous principle. It means, that «the volume of the expenses provided by the budget should correspond to total volume of incomes of the budget and the receipts of sources of finance of its deficiency reduced for the sums of payments from the budget, connected with sources of finance of a budgeted deficit and change of the rests on accounts under the account of means of budgets» (item 33 BK the Russian Federation). The majority of authors allocate function sbalansirovanija budgets in the legal institution of interbudgetary relations, in particular in the course of budgetary regulation that is actual and in case of maintenance of the delegated mandates. So, in the course of investment of public formations with "another's" powers, there is an increase in expenses of their budgets that it is possible to compensate with use of methods of interbudgetary regulation. However, the given principle is applicable to delegation of powers only partly as proficiency of the budget of the public formation executing transferred powers, cannot form the basis for refusal in financial maintenance of those at the expense of the "transferring" party.

Principle of efficiency of use of budgetary funds (efficiency and productivity; efficiency and ekonomnosti) (item 34 BK the Russian Federation) now one of most difficultly realised as the decision on conformity of those or other actions to a considered postulate, has estimated character.

By the author it has been analysed an order of 44 arbitration has put, the corresponding vessels considered in courts of cassation with 2009 for 2015, thus in 33 cases executive organs under the control did not manage to defend a position about infringement of a principle of efficiency of use of budgetary funds at realisation of account operations with means of subventions. One decision which has been taken out by Arbitration court republics Sakhas (Yakutia) under the statement of Administration of municipal union «Aldan area» to the Main control management is indicative at the President Republics Sakhas (Yakutia) about annulment of the instruction from December, 3rd, 2012 № 03/104. By the given instruction control management it has been fixed more than 25 infringements of principles of efficiency (14 episodes) and a special-purpose character of use of budgetary funds (11 episodes) from Administration, including concerning subventions. However any of infringements has not been recognised that following the results of consideration of materials дела1. The decision has been checked up in two subsequent instances. Extensive judiciary practice in such cases has been generalised in the decision of Plenum of the Supreme Arbitration Court of the Russian Federation from 22.06.06г. № 23 «About some questions of application by arbitration courts of norms of the Budgetary code of the Russian Federation» (further - «the Plenum Decision № 23») 2. So, in decision point 23 it is explained, that concrete account operation can be recognised by an inefficient expenditure of budgetary funds only in case the authorised body will prove, that the problems put before it could [128 [129] be executed with use of smaller volume of means or that, using the volume of means defined by the budget, the participant of budgetary process could reach the best result.

In the majority of the considered and satisfied statements for protest of results of control actions, control bodies it was not possible to prove the fact of possibility of achievement of the set result the least quantity of means. However, the reasons of such judiciary practice, are faster not in low level of professionalism of workers of bodies of the financial control, and in absence of detailed elaboration and mechanisms of realisation of the given principle. So, in литературе1 and political performances necessity of reference points on result [130 [131] is marked; absence of quantitative and qualitative criteria of an estimation of efficiency of use of budgetary funds [132]; not sistemnost the organisation-legal measures directed on maintenance of efficiency of expenses of the budget; necessity of system of an estimation of efficiency of budgetary expenses [133]; Prevalence of practice of definition of standard expenses proceeding from accounting and planned volume of budgetary appropriations taking into account indexation of expenses of last years, and also insufficient professional qualification of customers of public sector [134]. The political country leaders focus attention on low efficiency of budgetary expenses and take measures to situation improvement. In December, 2013 on the basis of Budgetary messages of the President of the Russian Federation about the budgetary policy in 2013 - 2016, the Basic directions of activity of the Government of the Russian Federation for the period till 2018, utv. The government 31.01.13г., decisions of session of the State council of the Russian Federation on October, 4th, 2013 concerning increase of efficiency of budgetary expenses, in December, 2013 the new Program of increase of a management efficiency is accepted

Public (state and municipal) the finance for the period to 2018 [135]. The given program contains a number of the proved actions for increase of efficiency of use of budgetary funds, many of which are applicable and to financial relations on delegation of powers.

The principle of efficiency of use of budgetary funds even is more important for the delegation legal institution, than for all others as negative influence on its realisation renders the subjective factor, namely - understanding of executors of promptness of realisation of the transferred functions (a position of favourites), and also performance comprehension not the, and "another's" duties. As its detailed elaboration it is possible to offer position about minimisation of expenses on administration of the delegated powers without loss of quality of their performance that will promote economy of budgetary funds.

It is necessary to mention one principle of budgetary system is a principle of reliability of the budget (item 37 BK the Russian Federation). For regulation of relations considered in research, it can be paraphrased as a principle of accuracy of calculations of requirements for financial resources on execution of the transferred powers. The problem in this case consists that financial resources on realisation of the delegated mandates, "are withdrawn" from the budget of "the transferring party» and increase the budget of the "accepting" party. Considering the given circumstance, and also a special-purpose character of financial maintenance, in case of requirement overestimate, surpluses within a fiscal year cannot be used any, other party of considered legal relation. According to article 242 BK the Russian Federation, the target not used interbudgetary transfers come under to return to the budget income from which they have been earlier given. Thus, for the public formation transferring powers, incorrectness of calculations can cause underfinancing of own expenses, a budgeted deficit. Accordingly, it is available government lacks as budgetary funds should be used effectively. Similarly negatively it is possible to estimate and requirement understating. As consequence - impossibility of execution of the delegated powers or, at least, decrease in quality or volumes of granting of corresponding services (actions). It is enough examples of miscalculations of the first and second plan. So, regions incessantly complain of shortage of financing of the delegated powers, and during too time, for the end of year for accounts they frequently have considerable sums of not spent subventions. So, at check Schetnoj of an expenditure by chamber of the Russian Federation the Moscow area of means of the subventions directed on maintenance by habitation of separate categories of citizens, it is established, that the rests of not used means of the federal budget as of 1.01.10г. Have constituted in a total sum of 935963,8 thousand rbl., on 1.01.11г. - 158541,2 thousand rbl., for 2012 - 66085,8 thousand рублей1. The resulted example is not individual. The tendency to annual increase in the rests of means of the federal budget on the accounts, the Russian Federations opened to subjects during 2005-2009, is marked by S.A.Ananeva [136 [137].

It is necessary to mention also such initial beginnings, as addressing and a special-purpose character of budgetary funds, a transparency (openness) which also have communication with the considered legal institution.

In summary it would be desirable to underline, that all allocated with the author obshchepravovye, budgetary-legal principles have the direct relation to financial maintenance of the transferred powers, however are applied oposredovanno as have found the formal fastening in

The legislation on delegation. Their strict observance will promote creation in Russia effective system of the government.

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A source: ANDREEVA ELENA MIHAJLOVNA. FINANCIALLY-LEGAL BASES of MUTUAL DELEGATION of POWERS of SUBJECTS of PUBLIC AUTHORITY In the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow -. 2018

More on topic § 1.4. Influence on financial relations in the field of mutual delegation of powers obshchepravovyh principles and principles of the financial (budgetary) right:

  1. § 1.3. Participants of financial legal relations in the field of delegation of powers and strategy of their interaction on achievement of balance of mutual interests
  2. influence of principles of the financial right on formation and realisation of principles of financial activity of Bank of Russia
  3. § 2.1. System of principles of legal regulation of relations on financial maintenance of the delegated powers
  5. Chapter 1. The General characteristic financial pravootnoshenijpo to mutual delegation of powers
  6. Chapter 2. Legal methodology of financial maintenance of mutual delegation of public powers
  7. § 3.5. The analysis of budgetary infringements and the budgetary coercive measures provided by the legislation in the field of financial maintenance of transferred powers
  8. 3.1. A principle of protection by Bank of Russia of the rights of subjects of financial legal relations in the field of financial activity
  9. § 3.4. Complex model of the financial control over process of financial maintenance of the transferred powers at all its stages
  10. Influence of target budgetary financing on a summary indicator of financial soundness
  11. § 3.2. Features of an expenditure of financial maintenance of the delegated powers in aspect of necessity target and an effective utilisation of budgetary funds. A legal regime of the rests.
  12. § 1.1. Essence of the legal institution of mutual delegation of powers of subjects of public authority
  13. concept and system of principles of financial activity Bank of Russia
  14. §1. Main principles of a complex of norms about obshchepravovyh previous conviction consequences
  15. § 2. Principles of legal regulation of the tax relations, taken as a principle tax federalism, and mechanisms of budgetary alignment in Spain
  18. a role of base and organizational-functional principles of financial activity of Bank of Russia in improvement of quality of realisation of its competence
  19. the Chapter II. Legal bases of maintenance of stability of a financial system of the European Union and the European financial markets in a context of the prevention of financial and economic crises
  20. financial powers