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Formation and constitutional law development on formation In history of Russia

In Russia in the beginning of the XX-th century of 70 % of the population was illiterate [7]. The reason of it consisted that the right of education was not general. It was not guaranteed by the state, had class character and was inaccessible bolshej to a part of the population in view of restrictions to signs of a floor, the relation to religion and origins [8].

As wrote E.P.Pitchugin, the situation began to vary after October revolution when the average and higher education has ceased to be «the privilege of exploiter classes» [9].

In 1918 the right of education receives for the first time fastening at the constitutional level in connection with acceptance of the Constitution (Organic law) of RSFSR which, under N.V.Vitruka's fair remark, has served as a prototype of many subsequent constitutions [10]. According to article 17 of the given Constitution, the state has set for itself a problem «to give to working and poorest peasants full, all-round and a free education» [11]. As underlines L.A.Dolnikova, the constitutional law on formation during this period yet was not the guaranteed possibility as had program character [12]. Moreover, the circle of subjects of law on formation has been limited, as access to knowledge was received by only working population.

By the decree from December, 26th, 1919 «About liquidation of illiteracy among the population of RSFSR» [13] concerning the population at the age from 8 till 50 years it is entered duties obuchatvsja to the reading and writing. The right of education gets secular character [14], co-education of pupils of both floors [15] is entered. Are created бесплатнвіе государственнвіе shkolv і, the tuition fee in high schools [16] is cancelled. In 1920 it is entered general educational professionalvno-technical duties [17], обязвівающая workers of the enterprises about 40 years prohoditi evening краткосрочнвіе are elderly italics

In 1924 бвіла the first Constitution (Organic law) of the USSR, in which not бвіли включенні нормві about the rights and duties of citizens [18] is accepted. Meanwhile, they have found reflexion in the text the Constitution (Organic law) of RSFSR accepted in 1925. The right of education fixed in statve 8, soderzhatelvno not otlichalosv from statvi of 17 Constitutions (Organic law) of RSFSR 1918 [19].

At the same time accruing requirement for restoration of the state after Civil войнві demanded acceptance решителвнвіх measures, in particular, in the field of national education. It is gradually entered general objazatelvnoe nachalvnoe training [20], training at schools gets polytechnical character [21], develop школві the factory apprenticeship [22], being having constituted parts of factories and factories.

Besides, updating materialvno-technical базві проMBiшлейности and selvskogo economy promotes povvnneniju requirements to a professional training in technical schools and high schools that gives a push for development системні a technical education [23].

As underlined V.M.Chhikvadze, многочисленнвіе changes in socially - economic, ideological and political and kulvturnoj lives of the Soviet society have caused necessities of acceptance of the new constitution [24]. In particular, реформві the beginnings of 1930th years have created предпосвілки for declaration of the right of education general at the constitutional level.

In 1936 the Constitution (Organic law) of the USSR is accepted. According to statve 121, the steel right of education imetv all citizens of the USSR [25]. It obespechivalosv an obligatory elementary education for all and besplatnostju all kinds of formation. Workers were allocated with the right free of charge to pass industrial, technical and agronomical training at factories and mashinno - tractor stations, in state farms and collective farms.

Besides, the Soviet power led the active policy on increase in number of the people having vocational training. In 1940 formation of manpower reserves for needs of the industry - qualified workers from youth of cities and collective farms [26] has begun. Training of young men by working trades passed in craft and railway schools, at schools of factory training.

It is necessary to notice, that possibilities of the Soviet state in constitutional law maintenance on formation affected its maintenance, and, as consequence, attracted updating of the constitutional norms. In connection with necessity of restoration and development of a national economy after the Great Patriotic War in 1947 material guarantees of the right of education in the text of the Constitution (Organic law) of the USSR have been narrowed [27]. In 1956 when the state began to have again sufficient means for a possibility of realisation of the right of education (all kinds) on a free basis, the constitutional positions have been changed repeatedly [28].

It is important to notice, that with fastening in the text of the Constitution of 1936 of a wide spectrum of possibilities of citizens to get various kinds of education, in jurisprudence there is a tradition of division of a constitutional law on formation on the separate rights entering into its structure. So, investigating a constitutional law on formation, E.P.Pitchugin in its structure allocates following rights [29]: the right of education at initial, seven-year and average schools; the right of education in educational institutions of system of the state manpower reserves; the right of education in average special educational institutions; the right of education in high schools; the right of education is direct at factories, mashinno-tractor stations, in state farms and collective farms.

In turn, recognising importance of development of system of national education for the successful decision of problems of communistic building, the state in the Law of the USSR from December, 24th, 1958 «About strengthening of communication of school with a life and about the further development of system of national education in the USSR» [30] puts a problem of overcoming of a separation of training from a life, increases of readiness of graduates to practical dejatelvnosti. The given vector of development of national education, along with objazatelvnostvju vosvmiletnego formations, finds reflexion in очереднвіх (tretvih) changes statvi 121 Constitutions (Organic law) of the USSR about the right of education in 1958 [31].

Follows zametitv, that in 1937 бвіла the new Constitution (Organic law) of RSFSR [32] is approved, statvja 125 which soderzhatelvno duplicated statvju 121 Constitutions (Organic law) of the USSR, accepted in 1936. Thus in the Constitution of 1937 the maintenance statvi about the right of education izmenjalosv lishv once - in 1959 [33] (after changes of the Constitution of 1936, svjazannvshi with updating statvi 121 in 1958).

Thus, обновленнвіе positions of constitutions 1936 and 1937 begin in a new fashion раскрвіватв the legal maintenance of a constitutional law on formation. Во-перввіх, wide development различнвіх kinds and formation forms (in particular, evening and correspondence) is marked. Во-вторвіх, the secondary education becomes polytechnical, there is such kind of formation, as about fes with ionalvno-technical. Thirdly, for workers remains

Possibility free of charge to get education at factories, in collective farms and state farms. In this connection it is necessary to agree with E.P.Pichuginoj that the right of education has during this period specific polytechnical character [34]. Moreover, through a prism of constitutions the purpose of the granted right is visible - to prepare citizens for realisation of socially useful activity on the basis of the training closely connected with a life and manufacture.

With reference to a subject of the present dissertational research it is necessary to notice, that in 1961 the Decision of Ministerial council of RSFSR from May, 31st, 1961 № 734 had been approved position about the technical training colleges providing possibility of realisation of the right on professional - a technical education by youth, going on manufacture after the termination of eight-year school [35]. Discriminating line of schools was specialisation in manufacture branches, close cooperation with the enterprises, state farms, collective farms and buildings.

In turn, the right to the free average professional education to realise it was possible in technical schools, schools, schools and other average special educational institutions which activity has been regulated by the Decision of Ministerial council of the USSR from January, 22nd, 1969 № 65 [36].

Besides, for improvement of preparation of experts with the average professional education for needs of agriculture according to the Decision of Ministerial council of the USSR from June, 23rd, 1964 № 48б [37] state farms-technical schools on the basis of the largest and advanced state farms on a level of production and corresponding agricultural technical schools have been organised.

Under N.V.Vitruka's fair remark, from the middle of 1960th conditions for transition to general secondary education [38] were created.

In 1973 Fundamentals of legislation of the USSR and union republics about national education [39] have been approved. According to article 17 of the given certificate, the general secondary education of youth was carried out taking into account requirements of socially - economic and scientific and technical development for increase of an educational level, consciousness and culture of the population.

As marks G.A.Dorokhov, value of the given certificate consisted that it has fixed for the first time the principles of national education constituting the initial beginnings for definition of a legal status of subjects of legal relations in the field of national education [40]. It is interesting to notice, that youth vocational training became one of principles of national education [41].

After this, in 1974 from August, 02nd, 1974 «the Law of RSFSR has been passed About national education» [42] in which article 3 it was said that the right of education is provided at the expense of free delivery of school textbooks, possibilities to be trained at school on the native language, together with by means of creation of conditions for self-education. In a preamble of the given law transition to general vocational training of youth has been declared.

In 1977 the new Constitution (Organic law) of the USSR [43] has been accepted. According to V.A.Patjulina, in it the constitutional positions about the rights and freedom [44] have been considerably deepened and expanded.

In particular, the constitutional norms about the right of education fixed in article 45, became a result of development of the branch rights of citizens in a sphere of education (reflexion and free delivery of school textbooks, and possibility of reception of privileges have found in the Constitution text pupils and the students, fixed earlier in the legislation on national education) [45].

There was a qualitative change of the maintenance of a constitutional law on formation which as V.A.Maslennikov marks, became more diverse and represented the possibility of free reception guaranteed by the state the citizen of any of formation kinds on a basis: obligatory and general secondary education on the native language; wide development professional, average special and higher education, including its correspondence and evening forms; grantings of the state grants and privileges to pupils and students; creations of conditions for self-education [46].

At the same time in 1978 the Constitution (Organic law) of RSFSR [47] has been accepted. The Right of education was fixed in article 43 which substantially duplicated article 45 of the Constitution (Organic law) of the USSR of 1977.

After E.P.Pichuginoj the tradition of allocation in the constitutional law maintenance on formation of elements as «the concrete possibilities of citizens established by legal rules on realisation of various variants of behaviour with a view of formation reception» [48] is continued by L.A.Dolnikova. Analyzing the updated maintenance of norms of the Constitution of 1977, it allocates as a part of a constitutional law for formation: the right to secondary education, the right to vocational training, the right to the average professional education and the right to higher education [49].

Meanwhile scale changes in an economic and political life of the Soviet state in 1980th have led to necessity of reorganisation of national education as the special role in acceleration of rates of socially - economic development was taken away to an education system [50].

It is important to notice, that the Constitution (Organic law) of RSFSR of 1978 has undergone some editions. The Constitution has undergone to the most essential changes and additions in 1992 that is connected with occurrence on a political card of the world of the Russian Federation [51].

The right of education has been fixed in article 57 of the updated Constitution. According to given article, each person began to have this right.

Now its realisation was not limited to citizenship presence as it was earlier (in constitutions 1936, 1937, 1977, 1978). Together with it among all variety of those rights of education or other steps, levels and kinds, the Constitution names only one - the right to free higher education in the state educational institution on a competitive basis. It has led to occurrence negosudarstvennogo formations and became a push to kommertsializatsii all Russian education [52].

Along with Constitution updating, in 1992 «the Law has been passed About formation» [53] which has fixed the education system organisation in the Russian Federation and has proclaimed an education sphere priority.

The law «About formation» began to identify the right of education with the right of citizens to training on the educational programs fixed by article 9 which analysis of positions allows in the updated structure of a constitutional law on formation to allocate following elements: the right to a preschool education; the right to the initial general education; the right to the basic general education; the right to the average (full) general education; the right to initial vocational training; the right to average vocational training; the right to the higher vocational training; the right on poslevuzovskoe vocational training.

Apparently, the vocational training system in comparison with the Soviet has undergone considerable changes. With reference to a subject of the present dissertational research it is necessary to pay attention on two key features of the occurred changes.

First, the vocational training purposes have changed. Earlier at legislative level they were formulated widely enough, reflecting not only an orientation on preparation of corresponding shots, but also on qualitative characteristics which these shots should possess [54].

Secondly, specialisation of educational institutions has been expanded. It was possible if earlier to receive a certain kind of vocational training only in an educational institution of a corresponding kind now their list has been expanded at the expense of investment of higher educational institutions with the right of realisation of educational programs of the previous levels [55].

Meanwhile in 1993 on plebicite the current Constitution of the Russian Federation which article 43 is devoted the right of education [56] has been accepted. The analysis of given article shows, that it has incorporated separate positions of previous constitutions.

First, positions of a part of 1 article 43 of the Constitution of the Russian Federation that each person has the right of education have been borrowed from the text of the Constitution of RSFSR of 1978 (with the changes brought in it in 1992).

Secondly, the tradition of transfer of separate kinds of the formation, put in pawn by constitutions 1936, 1937, 1977, 1978, has found the reflexion regarding 2 articles 43 of the Constitution of the Russian Federation guaranteeing «general availability and besplatnost preschool, basic general and average vocational training in the state or municipal educational institutions and at the enterprises» [57].

Thirdly, the part of 3 articles 43 of the Constitution of the Russian Federation practically literally duplicates positions of article 57 of the Constitution of RSFSR of 1978 (with the changes brought in it in 1992) that everyone has the right to graduate free of charge on a competitive basis.

Fourthly, regarding 4 articles 43 of the Constitution of the Russian Federation the basic general education is proclaimed obligatory, and to parents or persons, their replacing, the duty is made to ensure children of the given formation. Earlier this constitutional norm has been fixed in article 67.5 of the Constitution of RSFSR of 1978 (with the changes brought in it in 1992).

Fifthly, regarding 5 articles 43 of the Constitution of the Russian Federation have found norm reflexion about support of various forms of formation and self-education. We will remind, that for the first time about creation of conditions for self-education it has been told in article 121 of the Constitution of 1977 (and, accordingly, in article 43 of the Constitution of 1978), and about development of various forms of formation (for example, evening and correspondence) - in article 121 of the Constitution of 1936 (and, accordingly, in article 125 of the Constitution of 1937) taking into account changes of the constitutional positions in 1958-1959

Comparing positions of the Constitution of the Russian Federation with the Law operating at that time «About formation», it is possible to find out some contradictions. The recognition in the law of the right of education one of the basic and integral constitutional laws of citizens of the Russian Federation, instead of each person as it has been fixed regarding 1 article 43 of the Constitution of the Russian Federation was the first contradiction. The divergence of guarantees besplatnosti average vocational training was the second contradiction. Law article 5 «About formation» guaranteed to citizens of the Russian Federation «... On a competitive basis besplatnost average vocational training... In the state and municipal educational institutions... If the citizen receives formation of the given level for the first time» [58].

However from a position of a part of 3 articles 55 of the Constitution of the Russian Federation and the possibility of imposing of restrictions provided in it on the rights and freedom of the person and the citizen the federal act with a view of «protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons,» [59], these contradictions it is possible to treat maintenance of defence of the country and safety of the state as restriction of the right of education. The reason of such restrictions is covered that at that time in Russia crisis not only in social and economic was observed, but also in political spheres. The state had no sufficient financial assets to provide to all persons living in territory of the country (to citizens of the Russian Federation, foreign subjects and stateless persons), possibility to receive average vocational training is free.

At the same time, as writes V.V. Eremjan, refusal of the developed traditions and unwillingness consider historical experience at carrying out of social and economic transformations can to lead to negative consequences of carried out reforms [60]. In particular, restriction besplatnosti average vocational training and neglect traditions and positive experience of Soviet time (which it was showed in washing out of borders of specialisation of educational institutions, refusal of fixing of results of training under professional programs at legislative level), has led to decline of all system of preparation of qualified workers, employees and experts of an average link. Number wishing to realise the right to average vocational training began to fall promptly, and number wishing to realise the right to the higher vocational training - to grow [61].

As truly underlines S.V.Demanova, it has given a push to development negosudarstvennogo the higher vocational training that was negatively reflected in quality of formation and has led to overproduction of shots with the given educational level (especially economic, administrative and legal orientation), которвіе rvshku work in such quantity not nuzhnv і [62]. There was a staff deficit with average vocational training, especially technical orientation. Consequences of it can be observed and now. For example, in Sverdlovsk area to lawyers with higher education vacancies with wages from 8862 rbl., and to welders with average vocational training - from 26000 rbl. are offered, to turners with average vocational training - from 50000 rbl. [63] etc.

It is important to notice, that in 2007 in the Law «About formation» changes [64] have been made: as a part of the higher vocational training levels (a bachelor degree, spetsialitet and a magistracy) have been allocated, that has essentially updated the maintenance of the right of education [65].

In 2008 the Concept of long-term socially - economic development of the Russian Federation in which as a target reference point of development of the country transition to the innovative socially focused economy [66] which dictated requirement of radical restructurings for an education sphere and legislation reductions in conformity with norms of the Constitution of the Russian Federation has been declared has been approved.

In 2012 the Federal act № 273-FZ which has cancelled two restrictions existing throughout twenty years has been accepted. C one party, the given law recognised the right of education for each person. C other party - guaranteed «general availability and besplatnost... Average vocational training... I [67]. C the moment of an adoption of this law interest to realisation of the right to average vocational training does not fall, keeps at stable level and constitutes 47 % from an aggregate number of the persons accepted on training on the basic professional educational programs [68].

It is important to notice, that the Federal act № 273-FZ has made changes to existing structure of formation. According to parts 2, 4 and 5 articles 10 of the given law, since 2013 formation is subdivided into four kinds.

- The general education which is realised on levels (the preschool, initial general, basic general, average general education);

- Vocational training which is realised on levels (average vocational training and higher education - a bachelor degree, spetsialitet and a magistracy, a top skills professional training);

- Additional education which is subdivided into subspecies (an additional education of children and adults, additional vocational training);

- Vocational training.

Let's remind, that earlier the general education had step structure, and now - urovnevuju. Initial vocational training has been organically included in average vocational training which is directed now not only on preparation of experts of an average link, but also on preparation of qualified workers and employees. Poslevuzovsky vocational training became one of higher education levels. Thereby rupture between the text of the Constitution of the Russian Federation and realities of structure of a domestic education [69] has been reduced.

As the constitutional law on formation is complex [70], it is necessary to agree with I.F.Nikitinoj, that the legal design of the granted right differs the difficult structure consisting of a number of elements (is right) [71]. The constitutional Court of the Russian Federation also ввіделяет elements of the right of education - the right on doshkolvnoe formation [72], the right to the basic general education [73], reception possibilities которвіх закрепленві regarding 2 statvi 43 Constitutions of the Russian Federation., that the right to an average professionalvnoe formation and the right on ввісшее formation from here follows, закрепленнвіе in parts 2 and 3 statvi 43 Constitutions of the Russian Federation, too are its elements. At the same time the understanding of a constitutional law on formation will be incomplete, if rassmatrivatv it in отрвіве from operating now in Russia level-specific структурні formations. In this connection in constitutional law structure on formation it is obviously possible to allocate following elements:

1) the right to the general education: the right to a preschool education; the right to the initial general education; the right to the basic general education; the right to the average general education.

2) the right to vocational training: the right to average vocational training; the right to higher education - a bachelor degree; the right to higher education - spetsialitet, a magistracy; the right to higher education - a top skills professional training;

3) the right to an additional education: the right to an additional education of children and adults; the right to additional vocational training;

4) the right to vocational training.

zo

It is necessary to agree with L.A.Nudnenko that the volume of constitutional laws and freedom of the person and the citizen increased from one constitution to another, their maintenance [74] developed and changed. In this connection it is necessary to allocate key changes in the constitutional law maintenance for formation.

First, there was a transformation of the subject of law on formation: «workers, working and poorest peasants» - "citizens" - «each (person)».

Secondly, changes have concerned and besplatnosti formations. In particular, with 1947 for 1956 free was only seven-year formation, and with 1992 for 1993 besplatnost formations was guaranteed within the state educational standard. C 1993 it is guaranteed besplatnost preschool, basic general and average vocational training in the state or municipal educational institutions and at the enterprises.

Thirdly, there was a transition from a guarantee of the organisation of free education of workers at factories, in state farms, mashinno-tractor stations and collective farms to a guarantee is right to receive free of charge average vocational training and higher education (on a competitive basis) at the enterprise.

Fourthly, through a prism of constitutions the basic directions of a state policy in an education sphere are looked through: from secondary education development (1956), a development of education on the basis of communication of training with a life and with manufacture, development of evening and correspondence formation (1958) to occurrence of the state educational standard (1992) and federal state educational standards in 1993.

Fifthly, changes have concerned also formation structures, especially in vocational training sphere: during the Soviet period existed

Vocational training, the average professional education,

Higher education, and now - average professionalvnoe formation and внісше є formation.

So, process of evolution of a constitutional law on formation in Russia it is possible razdelitv on the following etapvn

1. The Soviet stage (1918-1991), kotorvsh includes the periods:

- With 1918 for 1935 (fastening at the constitutional level of the right of workers, working and the poorest krestvjan on formation; borvba with negramotnostvju the population; formation and network development образователвнвіх establishments);

- With 1936 for 1957 (fastening to citizens of the right of education; occurrence stimulating vvgalat for the trained; formation системні establishments professionalvnogo formation and training for a professional training for needs of a national economy);

- With 1958 for 1991 (dalvnejshee perfection системні formations, including professionalvno-technical and average spetsialvnoe formation, strengthening of their communication with manufacture; development of self-education, correspondence and evening training);

2. The present stage (since 1992 on present time), kotorvsh it is possible razdelitv for following periods:

- With 1992 for 2006 (occurrence of a constitutional law of each person on formation, large-scale development системні a paid education);

- With 2007 for 2012 (updating of the maintenance of a constitutional law on formation at the expense of joining of Russia to Bolonsky process);

- Since 2013 on present time (qualitative change системні a domestic education at the expense of acceptance Federalvnogo of the law № 273-FZ).

Meanwhile at the present stage there is a formation and development of the right to an average professionalvnoe the formation as which prototype have served existing in the Soviet time the right on professionalvno - technical and the right to an average spetsialvnoe formation. The right to an average professionalvnoe formation in 1992 pojavilosv as branch - in norms

The law «About formation». In 1993 possibility to receive average vocational training began to be guaranteed on most the higher - the constitutional level. The modern right to average vocational training is a version of the right to vocational training and at the same time an element of a complex constitutional law on formation. C the moment of the occurrence the granted right has undergone considerable changes that has been connected with updating of structure of a domestic education by the Federal act № 273-FZ when initial vocational training has been excluded from vocational training levels. In this connection concerning the right to average vocational training it is obviously possible to allocate stages of its formation and development:

1. A formation stage - occurrence of the right to average vocational training in norms of the branch legislation (1992).

2. The stage of development connected with fastening in the Constitution of the Russian Federation of possibility to receive average vocational training (with 1993 on present time). The given stage can be divided into following periods:

- With 1993 for 2012 when the right to average vocational training has been directed on preparation of exclusively experts of an average link;

- Since 2013 on the present time, characterised by updating of the maintenance of the right to average vocational training at the expense of abolition of initial vocational training when the right to average vocational training became directed also on preparation of the qualified workers serving.

The carried out analysis of history of a constitutional law on formation allows to draw a conclusion that preconditions of occurrence of the right to average vocational training in the text of the operating Constitution of the Russian Federation roots leave during the Soviet epoch. Positions of Constitutions of RSFSR and the USSR about the right of education, the professional and average professional education have served as a prototype of the right to average vocational training and have laid the foundation for its formation in modern Russia.

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A source: Zadorina Maria Andreevna. CONSTITUTIONAL ÏPABO ON AVERAGE VOCATIONAL TRAINING In the RUSSIAN FEDERATION: THEORY And PRACTICE QUESTIONS. Dissertations on competition of a scientific degree of the master of laws. Ekaterinburg — 2018. 2018

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