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§ 1. An autonomy of the educational organisations in definition of the maintenance of formation

In modern system of a Russian education mechanisms if not total, rather detailed and comprehensive state control and supervision have strongly settled. Every year they show the tendency to strengthening.

With a view of a substantiation of a similar policy remarkable enough criteria and principles, in which number - officially declared aspiration of the authorised state structures to provide "quality" and "efficiency" of high schools are developed. That high schools should be qualitative and effective - hardly probable not an axiom of the present [188]. Struggle for quality and efficiency motivate not only turning of realisation of separate educational programs and directions of high school activity (for example, their councils about protection candidate and theses for a doctor's degree) [189]. Speech began to go about an admissibility of existence of many high schools as those. The basic tool of realisation of a similar policy is the institute of the state accreditation [190].

The in itself institute of the state accreditation, perhaps, should not be treated as the tool of infringement of constitutional freedom of teaching and creativity. Is a form of restriction more likely

Given freedom that is supposed on sense ch. 3 items 55 of the Constitution of the Russian Federation under certain conditions: first, restrictions can

To be established by exclusively federal act (introduction of restrictions by the subordinate legislation, especially - not formalized "installations", "wishes", it is forbidden by "recommendations" the country constitution); secondly, the legislator has not the right any way, at own discretion to limit constitutional freedom of teaching and creativity in the course of legal regulation of the state accreditation of high schools; it is connected by the constitutional purposes which it is direct also in the exhaustive image are listed in ch. 3 items 55 of the Constitution of the Russian Federation.

Akkreditatsionnaja examination of high schools is limited by a subject and procedure [191]. Its subject - not educational activity of high schools in general. As an examination subject conformity or discrepancy of realisation of concrete educational programs to requirements of state standards (which in use call gos, FGOS) [192] can serve only. Standards - rather laconic documents, which requirements in most cases are accurate enough and, thereof, giving in to the control, check and fixing [193].

So, on educational program the jurisprudence (bachelor degree) obliges requirement FGOS to observe labour input specifications (240 test units, under the internal form for a year - 60 test units); educational program structures (presence of three educational cycles, including the professional; sections educational and an industrial practice, total state certification;

Base and variativnyh parts in each educational cycle); parities of active and interactive forms (more than 20 % auditornyh employment); a specific share of lectures (no more than 40 % auditornyh employment); labour inputs of one subject matter (not less than two test units) [194]; compulsions of exhibiting of an estimation in case of labour input of discipline more than three test units; volume of disciplines at a choice (not less than one third variativnoj parts on cycles); the maximum academic load (no more than 54 class periods in a week); volume of elective courses (no more than 10 test units); limits auditornoj loadings (for the internal form of training from 24 till 36 o'clock in a week); vacation time in educational year (7-9 weeks, not less than two weeks during the winter period), etc.

The standard contains requirements in substantial aspect to names and labour input of subject matters of a base part. For example, in «humanitarian, social and economic» an educational cycle lawyers necessarily should study philosophy, a foreign language in jurisprudence, economy, a professional etiquette and safety of ability to live. In an information-legal cycle - information technologies in legal activity. The professional educational cycle in its base part covers theory of state and law, home state and right history, history of the state and the right of foreign countries, criminalistics, and also branch courses in law (constitutional, administrative, civil, grazhdansko-remedial, arbitrazhnoprotsessualnoe, labour, criminal, criminal procedure, ecological, ground, financial, tax, enterprise, international, international private law and the social security right).

Conditions of an admissibility of educational activity all these and similar to them are represented quite lawful and proved from the point of view of realisation of constitutional freedom of teaching and creativity. Higher educational institutions should be connected requirements of labour input, structure of the basic educational program, its basic maintenance [195]. At the same time, realisation not so much these requirements (they, as a rule, are observed strictly enough), how many «kompetentnostnogo the approach» [196] became an essential component federal akkreditatsionnyh indicators in modern Russia, which basic sense consists in compulsion of active and interactive forms of carrying out of employment (computer stimulations, business and role games, analysis of concrete situations, trainings), out-of-class work, meetings with representatives of employers, master classes of experts and experts [197] etc. The traditional set «knowledge, skills and abilities» [198] is displaced now «with a matrix kompetentsy» which should seize trained on each of stages of educational process, and seisin in fact by these kompetentsijami should give in to the external administrative control. Kompetentnostnyj the approach to educational activity as the legal requirement to its realisation has typed so prompt turns in a modern society, that in many high schools "bifurcation" actual and legal educational processes is observed: study «according to documents» has dispersed from a real embodiment during a life

Educational programs and, under the statement of some sceptics, these two «alternative realities», probably, already never «will converge together».

The basic idea kompetentnostnogo the approach consists in innovatsionnosti, originality, the present of educational process, its conformity to "spirit" of time from the point of view of applied forms and the methods of training directed on varying requirements of the future employers [199]. Logically, similar tendencies in educational activity need to be paid compliments only. However, in our opinion, it is necessary to discriminate innovative approaches to training, on the one hand, as the state requirements giving in to the control and involving legal sanctions, with another - as voluntary used by teachers and their associations (first of all, chairs and faculties) methods and approaches which are predetermined by features of studied discipline, its theoretical or practically-applied mission, specificity of a student's audience and preferences of the concrete teacher who is the representative by this or that uchebnometodicheskoj or scientific school [200]. The state intervention in similar processes is, in our opinion, restriction of constitutional freedom of teaching and creativity on sense ch. 3 items 55 of the Constitution of the Russian Federation, requiring qualification from the point of view of the constitutional legitimacy or, on the contrary, illegality.

Let's result as an example introduction kompetentsionnogo the approach in teaching of a constitutional law of Russia. The given discipline has, first of all, a teoretiko-methodological orientation. The future jurists without dependence from their subsequent specialisation should have clear enough and accurate representations about bases of the constitutional theory, the legislation and pravoprimenitelnoj experts, to be able to understand logically them in the form of complete system of the didactic units interconnected with each other, in the future - to apply in practical legal activity the received legal knowledge. To demand from students of full knowledge of the constitutional theory, the legislation and pravoprimenitelnoj practice senselessly and harmfully; to expect from them ability at once on end of a university course effectively to represent clients in the Constitutional Court of the Russian Federation or in the European court under human rights - it is especially impossible. At the best the student acquires only certain part of konstitutsionno-legal knowledge, and it is quite enough of it, that process of knowledge of theoretical and practical jurisprudence developed in a demanded direction [201]. What else "competence" besides knowledge, skills and abilities in sphere of theoretical and practical constitutional jurisprudence the student in a constitutional law course should get?

Completely to deny necessity similar kompetentsy (besides the obvious requirement of knowledge of the constitutional theory, the legislation and pravoprimenitelnoj experts, and also primary skills and abilities in their application in practical activities of the lawyer) we will not be. Certainly, at studying of the konstitutsionno-legal phenomena and processes students form the political outlook, the general culture, develop skills of collective and individual work, study critically to perceive scientific thought, form feelings of justice, the moral obligation [202]. But whether costs similar to the competence (which realisation represents rather "thin", frequently - the "disguised" toolkit of the practising teacher) to show openly, especially - it is formalized? Whether giving of character by it state-legal obshcheobjazatelnosti, assuming the state control and legal responsibility is admissible from the konstitutsionno-legal point of view? Or it is independent sphere of "freedom" of teaching and the creativity, the guaranteed operating constitution of the country? It is represented, that the second variant of the answer to the brought attention to the question looks more preferable from the konstitutsionno-legal point of view.

Application or non-use kompetentnostnogo the approach - a question of the independent discretion of the teacher, chair, faculty and high school. Kompetentnostnyj the approach in one cases shows rather high efficiency (for example, in engineering science), in others - is absolutely unacceptable (especially in the course of teaching of general scientific, philosophical disciplines). Kompetentnostnyj the approach is only one of methods of the organisation of pedagogical activity which has a number of the important substitutes. Finally, the question of its application or refusal in application should be predetermined by a number of essential circumstances of legal character (features of studied discipline, its theoretical or practically-applied mission, specificity of a student's audience and preferences of the concrete teacher who is the representative of this or that uchebno-methodical or scientific school). As to the state control of its use - it is represented, that it requires a direct legal interdiction at Federal act level about formation.

Thus, it is necessary to underline, that the federal

The legislation and practice of its realisation have led to that actually activity of high schools became object of the active public management which are carried out, basically, by means of following three forms: 1) licensing (it is carried out «on an input», at establishment of high schools or opening of new educational programs); 2)

The state control and supervision (it is carried out "during" activity); 3) the state accreditation (it is carried out «on an exit» at release of students). The given is administrative-legal toolkit in itself can be called into question from the point of view ch. 1 item 44 of the Constitution of the Russian Federation or, anyway, requires an estimation about constitutionality under its maintenance. Thus it is necessary to find out, that the state bodies of public management "have extremely taken a great interest" today in administration of high school activity, proving it is necessity of warranting of quality and efficiency of university pedagogics [203].

Let's underline, that ch. 1 item 44 of the Constitution of the Russian Federation demands rather limited state intervention. It does not deny necessity of quality of activity of high schools, but it - is faster vnegosudarstvennaja, than the state problem: it represents, in our opinion, mainly area of university self-management. As to necessity of maintenance of efficiency of high school pedagogics - here in general there are big scientific doubts, how much it in general is admissible from the constitutional point of view.

In our opinion, it is possible and it is necessary to estimate and provide efficiency of economic activities of high schools [204], educational work among students [205], the organisation of educational process and scientific activity. But ch. 1 item 44 of the Constitution of the Russian Federation obviously and unambiguously forbids the state to interfere with the maintenance of educational process and scientific researches. We will result as an example inadmissibility of an estimation of efficiency of theatrical performance, a work of art, etc. the Pedagogical activity taken exclusively in substantial aspect, cannot serve as object of an estimation of economic efficiency (in view of its creative character). In this connection, in our opinion, federal state educational standards, and also objects of licensing, accreditation,

The state control and supervision - should be completely cleared"of the objects constituting exclusively creative, substantial pedagogical matter.

Let's notice, that procedure of the state accreditation in modern Russia has reached such extreme condition which does not know criminal trial in the historical past. This is administrative-remedial institute in the practical appendix reminds jurisdiktsionnuju the procedure depriving the suspected or convicted right to be listened, to present the proof in the protection, to confute arguments of the counter party [206] etc. Verifying actions are carried out, basically, under documents, instead of from the point of view of real, actual processes in this or that high school. Instead of visiting of lecture expert Rosobrnadzora analyzes uchebno - a methodical complex in which the lecture maintenance is stated; instead of interrogation of students - any report on self-inspection with documentary results of conversations with students, etc. is studied But, that the most important thing, object of the state administration becomes the maintenance of teaching and a technique of high school pedagogics. We believe, that these objects require the control, only not from the state, and from the professorial community, fundamental scientific and

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Pedagogical schools.

Certainly, result of application by the state of restrictive measures always was and there will be a certain narrowing of a scope of constitutional laws and freedom. However it should not lead to full negation of a being of this or that constitutional law. This logic is protected consistently by the Constitutional Court of the Russian Federation. We will underline, that the supreme body of the constitutional justice of the country did not consider any affairs about check of conformity of the legislation to requirements ch. 1 items 44 of the Constitution of the Russian Federation. We can assume only what could be reaction of Court in case of the reference of the persons authorised by the law with a view of protection and maintenance of constitutional freedom of teaching and scientific creativity. However a number of close legal positions which operate in legal system of Russia simultaneously with norms of the Constitution of the Russian Federation to result and systematise it is possible. In essence, it is a method of analogy of the right and the law, which is supposed in [207] case of doubts in correctness of interpretation corresponding (in this case - constitutional) rules of law [208].

To the first group of legal positions of the Constitutional Court of the Russian Federation which protect the right of high schools to an autonomy in the maintenance of educational activity, it is possible to carry decisions and the court rulings guaranteeing exclusively legislative form of restriction of constitutional laws and freedom, forbidding thus intervention of public administration by means of the edition of subordinate legislation standard legal acts or certificates pravoprimenenija [209]. So, the Constitutional Court of the Russian Federation repeatedly underlined, that all essential elements of the tax obligation should be specified directly in the law; if at least one of these elements is established by the subordinate legislation certificate - fiscal payment cannot be considered "lawfully established" on sense of the Constitution of the Russian Federation. In high school pedagogics something is observed similar: The federal act regulates the university education maintenance in rather fragmentary image, delegating the basic powers at all to the President of the Russian Federation or the Government of the Russian Federation, but the Ministry of Education and Science, and also Rosobrnadzoru. Federal educational standards the law do not affirm. Whether there corresponds only one this circumstance to spirit and sense ch. 3 items 55 of the Constitution of the Russian Federation which regulates the mechanism of restriction of a rule ch. 1 items 44 of the Constitution of the Russian Federation? We believe, that there are good causes for doubts available this conformity taking into account the developed practice of the Constitutional Court of the Russian Federation on the similar

To legal affairs (methods of analogy of a constitutional law and

The constitutional law).

Thus, in our opinion, the legal position of the Constitutional Court of the Russian Federation, occupied with it on business about check of constitutionality of the grazhdansko-remedial legislation according to which to the legislator it is assigned should be applied

The public duty to settle limits of restriction of constitutional laws and to consider major factors which influence process of their realisation [210]. In operating regulation, on the contrary, restriction limits ch. 1 items 44 of the Constitution of the Russian Federation are established indistinctly, major factors in a complex are not considered.

To the second group of legal positions of the Constitutional Court of the Russian Federation which protect the right of high schools to an autonomy in the maintenance of educational activity, it is possible to carry decisions and the court rulings guaranteeing clearness, clearness and unambiguity of legislative establishments under the threat of their disqualification as contradicting the Constitution of the Russian Federation [211]. Federal requirements to the organisation of educational and scientific processes cannot be established in generalised, abstract, unduly flexible formulations. On the contrary, they should be clear enough, accurate and unambiguous that the expert, the inspector or other person checking high school could establish accurately enough the fact of presence or absence of administrative violation. Insufficient "quality" or low "efficiency" as to similar constitutional requirements, in our opinion, obviously do not satisfy administrative criteria. Nevertheless, Rosobrnadzor in most cases is guided by these not clear, indistinct and multiple-valued legal to establishments which besides are entered by standard legal acts on a validity more low, than federal acts. It, in our opinion, not to the full corresponds to norms ch. 1 items 44 and ch. 3 items 55 of the Constitution of the Russian Federation.

To the third group of legal positions of the Constitutional Court of the Russian Federation which protect the right of high schools to an autonomy in the maintenance of educational activity, it is possible to carry decisions and the court rulings guaranteeing independence of the subject in realisation of its rights. At first sight this legal position can seem obvious, however in the practical validity the legislator and pravoprimenitel quite often interfere with another's rights that is not always qualified as an offence. So, high schools according to the Constitution of the Russian Federation have the right to an autonomy, i.e. intervention in their activity is forbidden. But at the same time there is an institute of the government the high schools which constitutionality as a whole is not exposed to doubt. We will underline, that the constitutional justice often enough protected independence of the subjects allocated with the corresponding rights: For example, the right of subjects of the Russian Federation independently to approve the register of posts of the state civil service, not identical to the federal register of posts [212].

Considering case about check of constitutionality of the legislation on a freedom of worship and creeds, the Constitutional Court of the Russian Federation has established, that if intervention in another's rights and is carried out on a lawful legal basis this state intervention should not be "excessive" [213]. We believe, that the given legal position directly concerns system of realisation of the legislation on formation in Russia: is administrative-legal institutes of licensing, accreditation, the state control and supervision in that kind in what they are applied, represent "excessive" intervention of the state in the high school autonomy guaranteed ch. 1 items 44 of the Constitution of the Russian Federation. If this intervention was qualified as "limited" or "moderated" - there would be no bases and for doubts in the observance fact ch. 1 items 44 of the Constitution of the Russian Federation.

To the fourth group of legal positions of the Constitutional Court of the Russian Federation which protect the right of high schools to an autonomy in the maintenance of educational activity, it is possible to carry decisions and the court rulings supporting inadmissibility of double taxation by any burden or application of double responsibility for the same offence [214]. In the practical validity the same object (the maintenance of educational activity) is checked by means of several, competing with each other is administrative - legal institutions (the state licensing, the state accreditation, the state control and supervision). Similar practice mismatches, in our opinion, also obshchejuridicheskomu to a principle of remedial economy according to which superfluous kontrolno-supervising functions should not be assigned to executive organs, besides duplicating each other from the point of view of the maintenance and procedure. Legislative refusal of procedure of the state accreditation with preservation of institutes of the state licensing and the state supervision with a simultaneous identification «licence requirements and conditions» with «requirements and conditions of federal state educational standards» would be one of konstitutsionno admissible approaches to the decision of the given problem.

To the fifth group of legal positions of the Constitutional Court of the Russian Federation which protect the right of high schools to an autonomy in the maintenance of educational activity, it is possible to carry decisions and the court rulings supposing a combination of the preliminary and subsequent judicial review [215]. Negative decision Rosobrnadzora following the results of

The state licensing, the control (supervision) or accreditation can be appealed in court. It is not denied owing to a legal position of the Constitutional Court of the Russian Federation that there is no such offence which could not be appealed in court taking into account remedial principles of jurisdiction and jurisdiction [216]. However extrajudicial character of the decision following the results of the state licensing, accreditation, the control and supervision over high school activity creates to enforcement authorities of the special competence special powers which are not present in sostjazatelnom litigation. We will assume, that the current legislation does not grant right Rosobrnadzoru of any powers except as right to petition before court about the termination of activity of high school as a whole or partially on the basis of the revealed infringements of federal requirements and conditions. At such legislative decision (the preliminary judicial review instead of the subsequent judicial review) - the academic autonomy is protected by more reliable way though various forms of the administrative control concerning high school activity regarding the control over current legislation observance are not excluded. The preliminary judicial constitutional control favourably differs on many other things to parametres at its comparison with institute of the subsequent judicial review. Despite its number institutsionalnyh lacks, we believe its more preferable with a view of high-grade realisation of norms ch. 1 items 44 of the Constitution of the Russian Federation.

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A source: Rostova Maria Vladimirovna. KONSTITUTSIONNO-LEGAL REGULATION of FREEDOM of TEACHING And SCIENTIFIC CREATIVITY In HIGHER EDUCATION SYSTEM. D And With With E R T And TS And I on competition of a scientific degree of the master of laws. An eagle - 2017. 2017

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More on topic § 1. An autonomy of the educational organisations in definition of the maintenance of formation:

  1. § 1. An autonomy of the educational organisations of higher education
  2. § 2. Freedom of the educational organisations in a choice of uchebno-methodical maintenance and educational technologies
  3. 3.1 Designing of the optimum maintenance, forms and methods of formation key educational kompetentsy at senior pupils
  4. 2.1. The maintenance and a composition of the educational speech messages addressed to the patient and focused on formation at it of relevant representations about zdorovesoobraznom behaviour
  5. 1.3. The maintenance of the legal capacity of the higher institution of formation of the Ministry of Internal Affairs, in sphere of rendering of paid educational services
  6. § 1. Concept, principles and forms of financing of the educational and scientific organisations
  7. activity of the emigrant out-of-school and educational organisations on familiarising of children with musical art
  8. the Chapter II. The Legal status of the educational and scientific organisations as subjects of the financial right
  9. the Chapter III. Financing of the educational and scientific organisations in the Russian Federation
  10. 2.3 Metaphors of formation and rhetoric of the text of the educational brochure