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§ 2. A modern condition of differentiation of powers between public authority levels in local government sphere:

The constitution of the Russian Federation of 1993 has fixed dualisticheskuju local government model. Before acceptance of the Federal act from № 131-FZ realisation attempt dualisticheskoj models was extended more than ten years.

The base Federal act № 154-FZ has been accepted, powers of public authorities of the Russian Federation, public authorities of subjects of the Russian Federation and local governments have been differentiated. Despite enough considerable quantity of powers of public authorities of the Russian Federation in sphere of the local government, fixed in the Federal act № 154-FZ, federal regulation, as a matter of fact, was frame, establishing reference points for the further regulation of ability to live of municipal unions while considerable powers in local government sphere have been given subjects of the Russian Federation.

The federal act № 154-FZ approached to definition of the competence of bodies of public authority in sphere of local government a little differently, rather than the Federal act № 131-FZ. The Federal act № 154-FZ fixed the uniform list of powers of bodies of public authority for all types of municipal unions (city, rural settlement, some settlements consolidated by the general territory, a settlement part, other occupied territory provided by the Federal act № 154-FZ). Federal act article 4 № 154-FZ fixed powers of public authorities of the Russian Federation in the field of local government (in last edition of their law was 18). Federal act article 5 № 154-FZ fixed powers of public authorities of subjects of the Russian Federation in the field of local government (in last edition of their law was 15). Federal act article 6 № 154-FZ fixed local government terms of reference (in last edition of their law was 30).

The federal act № 131-FZ has shown essentially other approach to distribution of powers of bodies of public authority in local government sphere. The novel essentially cut down powers of subjects of the Russian Federation on local government legal regulation, aspiring to solve the greatest possible number of questions directly in the Federal act № 131-FZ. Many of those relations in sphere of local government which were regulated at level of subjects of the Russian Federation, have been settled at federal level.

The analysis of norms of the Federal act № 154-FZ testifies that subjects of the Russian Federation have been authorised to pass own complex laws on local government and, besides, on the majority of the given powers subjects of the Russian Federation should pass the laws regulating corresponding activity (for example, the Law of Omsk area from 10.11.1995 № 34-OZ «About elections in local governments of Omsk area» [60], the Law of the Chuvash Republic from 16.03.1996 № 3 «About the local government organisation in the Chuvash Republic» [61], the Law of Republic Tyva from 03.04.1995 « About culture »[62], the Law of the Tyumen area from 15.04.1996 № 31« About the budgetary device and budgetary process in the Tyumen area »[63]). Subjects of the Russian Federation could develop and concretise norms of the Federal act № 154-FZ, not entering with it in the contradiction. Thus, legal bases of local government in a considerable part have been fixed in laws of subjects of the Russian Federation.

Such approach meant essential decentralisation of the power, possibility of multi-variant approach of construction of local government.

The list of questions of local value included 30 questions and was opened. Their number concerned: possession, using and the order the municipal property; a complex accomplishment of territory of municipal union, social and economic development of territory, etc. Besides Federal act article 6 № 154-FZ allocated municipal unions with the right to accept to the consideration other questions carried to questions of local value by laws of subjects of the Russian Federation, and also the questions which not excluded from their conducting and have been not carried to conducting of other municipal unions and public authorities. Thus, municipalities have been allocated by enough large powers in sphere of regulation of local government that corresponded to the letter and spirit of the Constitution of the Russian Federation.

The federal act № 131-FZ has shown essentially other approach to distribution of powers of bodies of public authority in local government sphere. The novel essentially cut down powers of subjects of the Russian Federation on local government legal regulation, aspiring to solve the greatest possible number of questions directly in the Federal act text № 131-FZ. Many of those relations in sphere of local government which were regulated at level of subjects of the Russian Federation, have been settled at federal level.

As already it was mentioned earlier, powers of bodies of public authority in local government sphere in the Federal act № 131-FZ are formulated too vaguely and foggy. Their maintenance does not allow to define real volume of powers of bodies of this or that level of public authority in local government sphere, it is possible only by the analysis of all text of the Federal act № 131-FZ as a whole, and also branch federal acts.

Federal act article 5 № 131-FZ has assigned to federal public authorities four kinds of powers in the field of local government:

1. Definition of the general principles of the organisation of local government in the Russian Federation. For today still there is a legal uncertainty of a question what it is necessary to consider as the general principles of the organisation of local government. The federal legislator has not defined the concept maintenance «the general principles of the organisation of local government». It is necessary to agree with I.V.Babichev's opinion which defines the general principles of the organisation of local government as «legislative bases and principles of legislative regulation of local government in their legal, territorial, organizational and economic aspects, and also bases of interaction of system of local government with public authorities of the Russian Federation and its subjects» [64].

2. Legal regulation under terms of reference of the Russian Federation and within powers of the Russian Federation in subjects of joint conducting the Russian Federation and subjects of the Russian Federation of the rights, duties and responsibility of federal public authorities and their officials, public authorities of subjects of the Russian Federation and their officials in the field of local government.

3. Legal regulation of the rights, duties and responsibility of citizens, local governments and officials of local government under the decision of questions of local value.

4. Legal regulation of the rights, duties and responsibility of local governments and officials of local government at realisation of separate state powers with which local governments are allocated by federal acts in an order established by the Federal act № 131-FZ.

The analysis of the text of the Federal act № 131-FZ allows to allocate following powers of public authorities of the Russian Federation in local government sphere:

1) legal regulation of maintenance of the rights of citizens on local government realisation (Law item 3);

2) realisation of powers of the state bodies in the field of local government, including definition of cases and a procedure of executive and control powers federal public authorities, public authorities of the subject of the Russian Federation concerning municipal unions and local governments (ch. 2 items 5, ch. 2 items 6 of the Law);

3) legal regulation of the territorial organisation of local government (the item of item 11-13 of the Law);

4) fastening of the list of questions of local value for different types of municipal unions and definition of powers of local governments under their decision, and also an establishment of principles of legal regulation of powers of local governments (the item of item 14-18 of the Law);

5) legal regulation of an order of investment of local governments by separate state powers of subjects of the Russian Federation and the Russian Federation (the item of item 19-21 of the Law);

6) fastening of structure of local governments (the item of item 34-41 of the Law);

7) legal regulation of an economic basis of the local

Self-management (the item of item 51-65 of the Law);

8) legal regulation of intermunicipal cooperation (the item of item 66-69 of the Law);

9) legal regulation of responsibility of bodies of the local

Self-management and officials of local government (the item of item 70-78 of the Law);

10) legal regulation of features of the organisation of the local

Self-management in cities of federal value, naukogradah, in frontier territories, in the closed administrative-territorial formations, territories of the Far North and equal to them to districts, in territory of innovative centre "Сколково", in territories advancing sotsialnoekonomicheskogo developments (the item of item 79-82.3 of the Law) [65].

Thus, the Federal act from 06.10.2003 № 131-FZ

In the exhaustive image has solved many questions of the organisation of local government, having centralised standard regulation of many questions of local government, the maximum image having translated it on federal level from level of the subject of the Russian Federation.

According to the item "n" ch. 1 item 72 of the Constitution of the Russian Federation an establishment of the general principles of the organisation of system of public authorities and local government is in joint conducting the Russian Federation and subjects of the Russian Federation.

Article 6 of the Federal act from 06.10.2003 № 131-FZ has assigned to public authorities of subjects of the Russian Federation four kinds of powers in the field of local government:

1. Legal regulation of questions of the organisation of local government in subjects of the Russian Federation in cases and an order, established by the Federal act № 131-FZ.

2. Legal regulation of the rights, duties and responsibility of public authorities of subjects of the Russian Federation and their officials in the field of local government in cases and an order, established by federal acts.

3. Legal regulation of the rights, duties and responsibility of local governments and officials of local government under terms of reference of subjects of the Russian Federation, and also within powers of public authorities of subjects of the Russian Federation in subjects of joint conducting the Russian Federation and subjects of the Russian Federation.

4. Legal regulation of the rights, duties and responsibility of local governments and officials of local government at realisation of separate state powers with which local governments are allocated by laws of subjects of the Russian Federation in an order established by the Federal act № 131-FZ.

Besides the listed powers of public authorities of the subject of the Russian Federation in the field of local government, the Federal act from 06.10.2003 № 131-FZ assigns to public authorities of the subject of the Russian Federation some more powers:

1) an establishment of the status and borders of municipal unions, change of borders of municipal unions, (item 10 item, 12, 13 Laws);

2) investment of city settlements with the status of city district, municipal union abolition, municipal union creation (item 11 item, 13, 13.1 Laws);

3) investment of local governments with separate state powers of subjects of the Russian Federation and control of their execution (item 19 item - 21 Laws);

4) definition of an order of carrying out of a local referendum, definition of an order of carrying out of municipal elections, definition of an order of carrying out of voting by a response of the deputy, the elective official of local government (the item of item 22-24 of the Law);

5) the statement of conditions of the contract for the head of local administration of municipal area (city district) in a part, concerning realisation of the separate state powers transferred to local governments by federal acts and laws of subjects of the Russian Federation, an establishment of personal structure of 1/2 parts of the competitive commission of municipal area (city district), initiation of cancellation of the contract with the head of local administration; an establishment of additional requirements to candidates on a post of the head of local administration of municipal area and city district (Law item 37);

6) an establishment of an order of the organisation and conducting the register of municipal standard legal acts of the subject of the Russian Federation (Law item 43.1);

7) an establishment of the liability for nonperformance of municipal legal acts (Law item 7);

8) time realisation of powers of local governments (Law item 75);

9) redistribution of powers between local governments and public authorities of the subject of the Russian Federation (Law item 17).

10) definition of an order of formation of a representative body of municipal area, city district with intracity division (Law item 35);

11) change of an order of investment by powers of the head of municipal union (Law item 36).

In spite of the fact that subjects of the Russian Federation have lost belonging to them before power on acceptance of complex laws of subjects of the Russian Federation about local government, on differentiation of terms of reference between municipal unions at the multilevel organisation of local government, on an establishment of a procedure for registration of charters of municipal unions and others, the total of powers of public authorities of subjects of the Russian Federation in local government sphere remains big enough. However, character of these powers has changed. As has truly noted V.I.Vasilev, «depth of legal regulation by public authorities of subjects of the Russian Federation of questions of local government, first of all organizational» [66] has essentially decreased. For example, if earlier subjects of the Russian Federation had the right to establish independently an order of formation and transformation of municipal unions after Federal act acceptance № 131-FZ subjects of the Russian Federation delimit municipal unions according to the requirements provided by the Federal act № 131-FZ.

Federal act article 17 № 131-FZ has fixed the open list of powers of local governments under the decision of questions of local value. Directly in given article the most significant powers of local governments which on the character can be subdivided on two groups are listed.

The first group - the powers of an organisation-legal order concerning practically of all levels of local government and all questions of local value: acceptance of the charter of municipal union and entering into it of changes and additions, the edition of municipal legal acts; an establishment of official symbols of municipal union; organizational and material support of preparation and carrying out of municipal elections, a local referendum, voting by a response of the deputy, a member of elected body of local government, the elective official of local government, voting by questions of change of borders of municipal union, municipal union transformation; Acceptance and the organisation of performance of plans and programs of complex social and economic development of municipal union, and also the organisation of gathering of the statistics characterising a condition of economy and social sphere of municipal union, and granting specified given to public authorities in an order established by the Government of the Russian Federation.

The second group of powers of local governments has branch and special character, concerns concrete questions of local value and can be used only at their decision: an establishment of tariffs for the services given by the municipal enterprises and establishments, and the works which are carried out by the municipal enterprises and establishments if other is not provided by federal acts; regulation of tariffs for connection to system of a municipal infrastructure, tariffs of the organisations of a municipal complex for connection, extra charges to tariffs for the goods and services of the organisations of a municipal complex, extra charges to the prices (tariffs) for

Consumers; powers on the organisations of a heat supply provided by the Federal act from 27.07.2010 № 190-FZ «About a heat supply» [67];

Powers in the water supply and water removal sphere, provided by the Federal act from 07.12.2011 № 416-FZ «About water supply and water removal» [68] etc.

The federal act № 136-FZ had been established various lists of questions of local value for rural and city settlements (earlier the list of questions was uniform). Thus for city settlements the list of questions of local value remained as a whole former, and here for rural settlements the list of questions of local value has been reduced from 39 questions to 13. However, according to Federal act item 2 № 136-FZ, to subjects of the Russian Federation it is accorded a right by the laws and the charters of municipal area accepted according to them and charters of rural settlements to assign to rural settlements also other questions from among the provided questions of local value of city settlements (except for the organisation and realisation of actions for territorial defence and a civil defence, protection of the population and territory of settlement from extreme situations of natural and technogenic character (ch. 3 items 14 of the Federal act № 131 - FZ).

Federal act positions № 136-FZ about redistribution

Powers between local governments and public authorities of subjects of the Russian Federation (tab. 1) have been realised in practice.

Redistribution of powers between local governments and public authorities of subjects of the Russian Federation after Federal act coming into force № 136-FZ (as of March, 1st, 2017)

Table 1
The redistributed Subjects of the Russian Federation
Powers
In the field of the ground The Sakhalin area, Republic Mordovia,
Relations Republic Tatarstan, the Udmurt Republic, Republic Kareliya, Leningrad region, the Novgorod area, the Pskov area, Karachaevo - Circassian Republic, Republic Tyva, Altay territory, Transbaikalian edge, Irkutsk area, Novosibirsk area, Sverdlovsk area, the Tyumen area, the Belgorod area, the Voronezh area, Kursk area, Lipetsk area, the Moscow area, the Oryol area, the Tula area, Republic Kalmykia, the Volgograd area
In the field of the town-planning The Sakhalin area, Udmurt
Activity Republic, the Nizhniy Novgorod area, Leningrad region, the Pskov area, Nenets autonomous region, Novosibirsk area, Sverdlovsk area, the Tyumen area, the Voronezh area, the Moscow area, the Oryol area, Smolensk area, the Tambov area

In sphere of the organisation and granting of separate utilities The Kamchatka edge, Republic Kareliya, the Novgorod area, Nenets autonomous region, Transbaikalian edge, Lipetsk area, the Oryol area, the Volgograd area
In the field of housing relations Nenets autonomous region
In the field of burial and funeral business The Moscow area, the Oryol area
In advertising sphere Karachaevo-Circassian Republic, Sverdlovsk area, the Tyumen area, the Voronezh area, the Oryol area
In sphere of creation, the maintenance The Jewish autonomous region, Nenets
And the organisations of activity of salvage and rescue services and (or) under abnormal condition - saving formations Autonomous region
In sphere road The Chuvash Republic, Nenets
Activity Autonomous region
In health protection sphere The Udmurt Republic, Stavropol
Citizens Edge
In sphere of the reference with production wastes and consumption The Yaroslavl area
From the analysis regional Legislations follows, that since the moment

Federal act coming into force. № 136-FZ and till March, 1st, 2017 34 subjects of the Russian Federation have passed laws on redistribution of powers between local governments and public authorities of subjects of the Russian Federation (accordingly, 51 subject of the Russian Federation has not passed laws on redistribution of powers). More often in favour of public authorities of subjects of the Russian Federation powers of local governments in sphere of ground relations (in 25 subjects of the Russian Federation), in sphere of town-planning activity (in 14 subjects of the Russian Federation), in sphere of the organisation and granting of separate utilities (in 8 subjects of the Russian Federation) are redistributed. The most active participation in the given process was accepted by the subjects of Federation entering into Northwest and Central federal districts.

Besides it ch. 3 items 14, ch. 3 items 16, ch. 2 items 16.2 of the Federal act № 131-FZ have fixed positions according to which by laws of subjects of the Russian Federation additional questions of local value of rural settlements can be established, city districts, city districts with intracity division, intracity areas.

Thus, the legislative model of distribution of powers of bodies of public authority existing today in local government sphere roughly contradicts the constitutional model fixing local government as independent level of public authority, not dependent on the government and not the subordinate to it (article 12 of the Constitution of the Russian Federation). Besides, existing legal regulation does declarative and other norms of the Constitution of the Russian Federation, in particular, positions of article 3 of the Constitution of the Russian Federation, the authorities proclaiming with a unique source in Russia its multinational people which are carrying out the power directly, and also through public authorities and local government. As we see, the legislator in the increasing degree deprives municipal authority of powers in local government sphere, gradually reducing its role, building in local government in a government vertical.

In the Federal act № 131-FZ there is article 75 fixing the bases and an order of time realisation by public authorities of separate powers of local governments. According to ch. 1 items 75 of the Federal act № 131-FZ separate powers of local governments can temporarily be carried out by public authorities of subjects of the Russian Federation in a case: 1) if in connection with act of nature, with accident, other extreme situation the representative body of municipal union and local administration are absent and (or) cannot be generated according to the Federal act № 131-FZ; 2) if owing to decisions, actions (inactivity) of local governments there are delayed debts of municipal unions on execution debt and (or) the budgetary obligations, defined in an order established BK the Russian Federation, exceeding 30 percent of own incomes of budgets of municipal unions in accounting financial year, and (or) the delayed debts of municipal unions on execution of the budgetary obligations, exceeding 40 percent of budgetary appropriations in accounting financial year, under condition of performance of budgetary obligations of the federal budget and budgets of subjects of the Russian Federation concerning budgets of the specified municipal unions; 3) if at realisation of the separate transferred state powers at the expense of granting of subventions to local budgets local governments had been admitted a no-purpose expenditure of budgetary funds or infrigement of the constitution of the Russian Federation, the federal act, other standard legal acts, established by corresponding court.

In this case time realisation by public authorities of separate powers of local governments is objectively caused by the developed unforeseen adverse situation, to resolve which by own strength local governments not in a condition, therefore the help of public authorities (regional or federal) is required to them. After liquidation of an unforeseen adverse situation local governments continue to carry out powers temporarily withdrawn from them regularly.

Time realisation by public authorities of separate powers of local governments only in case of approach of the circumstances provided ch is represented to us admissible. 1 items 75 of the Federal act № 131-FZ.

Thereupon we consider necessary to exclude from operating edition of the Federal act № 131-FZ: the part of 1.2 articles 17 supposing redistribution of powers between local governments and public authorities of the subject of the Russian Federation; positions of a part 3 articles 14 supposing fastening by laws of subjects of the Russian Federation behind rural settlements of questions of local value of city settlements; positions of a part 3 articles 16 supposing fastening by laws of subjects of the Russian Federation behind city districts with intracity division of additional questions of local value; positions of a part 2 articles 16.2 supposing fastening by laws of subjects of the Russian Federation behind intracity areas of questions of local value of city districts. If the federal legislator considers, that the municipal union carries out in the inadequate image any question of local value fixed to it, he should make changes directly to the Federal act text № 131-FZ, to exclude this question of local value from the competence of municipal union and to transfer it in the competence of the subject of the Russian Federation.

As truly marks V.I.Vasilev «it is conventional, that each large operating social system cannot effectively operate without a certain autonomy of its local subsystems. In the state which is such operating system, acceptance of administrative decisions should be to some extent decentralised. The local government represents the special case of decentralisation assuming the decision at local level of management of some question» [69]. As is known, failure in work of one of the major elements of system leads to failure in system work as a whole. Unreasonable deprivation of the competence of local government as independent level of public authority with inevitability will entail failure in functioning of all system of public authority in Russia which base is put in pawn in the Constitution of the Russian Federation.

As a result the population participates in the decision of local affairs ever less, the democratic potential of the Constitution of the Russian Federation appears non-realised, positions about the legal and social state get declarative character. The munitsipalno-legal policy spent by the state threatens with controllability loss by social and economic processes, an aggravation of internal political conflicts, growth of protest activity of the population.

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A source: BLAGOV JURY VLADISLAVOVICH. REFORMING of the MUNICIPAL RIGHT of Russia During the NEWEST TIME. The dissertation on competition of a scientific degree of the master of laws. Omsk -. 2017

More on topic § 2. A modern condition of differentiation of powers between public authority levels in local government sphere::

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  2. powers of public authorities of subjects of the Russian Federation on legality maintenance in activity of bodies and officials of local government
  3. § 1.1. Essence of the legal institution of mutual delegation of powers of subjects of public authority
  4. Chapter 1. DISTRIBUTION OF POWERS ON LOCAL GOVERNMENT REGULATION In the RUSSIAN FEDERATION
  5. legal problems of differentiation of powers and interaction of public authorities concerning conducting the state ground cadastre
  6. § 2. Development of legal regulation of local referenda, votings by a response of the deputy, a member of elected body of local government, the elective official of local government, voting by questions of change of borders of municipal union, municipal union transformation
  7. § 1. Development of institute of organizational models of local government in modern Russia (on an example of city districts)
  8. Chapter 4. subventsionnyj the mechanism as a financially-legal basis of delegation of powers of subjects of public authority
  9. 3.2 Civil remedial legal personality of the public prosecutor, state bodies (local government)
  10. § 2. Differentiation of terms of reference and powers between the Russian Federation and its subjects in law-making sphere