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§ 1. Principles of construction and functioning of system of public authorities in Republic Kazakhstan

Perfection and change of mechanisms of the government of all levels with a view of maintenance of productive and constructive interaction of all branches and government levels already in new conditions [172] became one of the central directions of reforming of a Post-Soviet Kazakhstan society.

Analyzing the general constitutional status of the state bodies, B.N.Gabrichidze allocated in it such elements, as:

1) the political and state-legal characteristic of body of the state;

2) a place of a certain kind of bodies in nation-wide system and their parity;

3) bases of mutual relations of these bodies ezhdu itself;

4) the major principles of the organisation and activity of the state bodies;

5) competence bases;

6) kinds of legal acts of the state bodies [173].

According to B.N.Gabrichidze and A.G.Chernyavsky's theses: «In the general view the constitutional status of the state body are defined by norms of the constitutional legislation basic elements of its legal status, expressing characteristic lines of a system and the law and order» [174 [175] are brighter than others. And further: «the State law investigates mainly the constitutional status of body of the state: formulates concept of body, finds out the constitutional position of bodies of the state, analyzes the constitutional system of its bodies, studies the constitutional bases of their organisation and mutual relations, functions, structure, the cores organizational -

L

Legal forms of activity ».

As to the competence of the state body, that, on the common opinion established in the domestic legal literature, it represents set of powers (imperious and

Providing), legally expressing the functions fixed to given body, and its state-imperious or administrative profile. Attempts to prove, that powers not a unique element of the competence of the state body, that here concern corresponding terms of reference of the state body, its duty before the state as a whole, are represented not convincing.

The criterion assumed as a basis at division of functions imperious (state-imperious) and providing state-imperious activity, can be applied and at classification

The state bodies. The last also can be subdivided into "public authorities" and «the bodies providing state-imperious activity». Between them there are distinctions and rather essential.

So, abundantly clear, that state-imperious powers about which maintenance it was spoken above are inherent in public authority. It is a question first of all of bodies legislative, executive, the judicial authority, components some kind of a skeleton, bearing design of machinery of state. At the same time not any state body is allocated with state-imperious powers. For example, hardly there can be doubts in, whether such bodies, as devices legislative, government courts of justice, the Central Electoral Commission, Schetnaja chamber and some other are state. These bodies, certainly, are state, but their activity has providing character. They are intended for maintenance of activity of public authorities.

Thus, machinery of state includes public authorities, i.e. organizational structures through which the government (bodies legislative, executive and the judicial authority is directly carried out) and the bodies providing state-imperious activity, i.e.

organizational structures which, not having imperious powers, carry out functions (coordination, analytical, information and others), promoting effective realisation of problems of public authorities.

The state body providing performance of state-imperious functions, the independent structural part of machinery of state to which the legislation assigns special state functions and the corresponding powers providing activity of public authorities is. The machinery of state should not be identified with more general concept — a machinery of government.

The hierarchical principle of construction of machinery of state extends on a machinery of government in the sense that the state bodies preside, the control,

Concerning created by them and the state organisations subordinated to them — establishments, funds, mass media etc. It is possible to speak coordination and other administrative functions, thus, about uniform hierarchy of the state bodies and the state organisations, about raznourovnevom a machinery of government.

Thus, the machinery of government includes system of the state bodies (machinery of state) and system of the state organisations which are in turn subdivided:

Machinery of state

(System of the state bodies)

Public authorities

- The legislative

- The executive

- The judicial

The bodies providing performance gosudarstvennovlastnyh of functions

- The bodies providing activity of public authorities

System of the state organisations

Official bodies

The state enterprises and associations

The state funds and other organisations

Public funds of the mass information

Criminally-executive establishments

The army, the special militarised formations

As machinery of state understand system of bodies through which the government is carried out, the basic functions are carried out and the purposes facing to the state and problems are reached. It is necessary to discriminate the state bodies and public authorities. Thus it is necessary to mean, that concept

«The state bodies» the concept "public authorities" is wider, rather than.

According to the definition standard in jurisprudence the state body (the state body) represents organizational and structurally isolated part of the machinery of state allocated in an order established by the legislation with powers, legal and materialnofinansovymi means for realisation of problems and functions of the government [176].

The state law science allocates signs or the lines inherent in any body of the state. First, presence of the legally accurately regulated order of creation, transformation and liquidation of formation of the state body. Besides this order the state body is formed or liquidated cannot be. Formation of the basic public authorities

It is carried out according to the Republic Kazakhstan Constitution. Secondly, the state body is created for realisation of functions and state problems. Thirdly, the important sign of the state body is its competence fixed in rules of law, being set of subjects of its conducting and powers. The competence is legal expression of functions of the state body. Fourthly, the important sign

The state body the special order of its activity established by the current legislation is. To recede from this order state body have not the right. Fifthly, a sign

The state body its structure, internal is

The organisation fixed in the Constitution of Republic Kazakhstan,

The legislative and other regulatory legal acts accepted at nation-wide and regional levels.

In the legal literature it is frequent as a sign of body of the state the competence, and powers or state-imperious powers is considered not. Thus as powers understand:

1) possibility of decision-making, obligatory for execution by all citizens, officials and the organisations on which the competence of the given body of the state extends;

2) the organisation of execution of the accepted decisions which leans against a material basis (for example, means of the state budget);

3) protection of the accepted decisions from infringements with possibility

Applications as belief, social influence, and measures of the state compulsion. *

In legal sense the concept of power means certain unity of the rights and duties of the state body and the official, an element of their legal status in which possibility of fulfilment of certain actions or decision-making on this or that question is simultaneously necessity something to make, that is an office debt. In effect any power right and duty elements are concluded: that the subject of power has the right to do, it at the same time and is obliged to do.

Among powers it is necessary to allocate especially type gosudarstvennovlastnyh or simply imperious powers. They directly express functions of the public authorities connected with acceptance of imperious state decisions, including acceptance of laws, with realisation of executive, administrative, coordination and other administrative activity, with realisation of forms of the control of the judicial authority over conformity of public relations of the constitution and to laws. Such are powers of bodies legislative, executive and the judicial authority and the persons displacing the state posts in corresponding bodies.

Construction and functioning of system of public authorities in Republic Kazakhstan is carried out with the account:

1) traditions of the state development of Kazakhstan in dosovetskoe time;

2) experience of the state building of the Kazakh Soviet Socialist Republic;

3) leading tendencies of perfection of system of the government in economically and politically developed states of the world.

Among the constitutional principles of Republic Kazakhstan there was a place and to the unanimity of the government originating in a uniform source of the power - the people of Kazakhstan. Item 4 of item 3 of the Constitution of Republic Kazakhstan fixes position: «the Government in Republic is uniform, is carried out on the basis of the Constitution and laws according to a principle of its division on legislative, executive and judicial branches and interactions among themselves with use of systems of controls and counterbalances».

The constitutional system of the power includes not only those public authorities which are named in the Constitution text. Many other things which creation follows from functions and powers of the constitutional authorities enter into it also. The power system, thus, consists of the branched out subsystems, from the big number of the co-ordinated authorities of different level.

In modern conditions sharply enough there is a problem konstitutsionalizatsii the current legislation. It is caused by presence more enough a volume part of the current legislation accepted to the Constitution of Republic Kazakhstan of 1995. Besides, and now authorities suppose acceptance of the norms contradicting requirements of the Constitution of Republic Kazakhstan.

The functional aspect of realisation of a principle of division of the government in Republic Kazakhstan (judging by the scientific literature) is recognised, understood and does not cause special discussions. Business with analysis and an estimation of system of bodies which realise various forms of the government and, especially, with structure of their mutual relations among themselves (with cooperation, on the one hand, with «controls and counterbalances», with another) more difficult is.

Distribution of functions between the state bodies as a necessary guarantee of a political freedom in a society should be steady and invariable. It is possible only in the event that any of the state bodies is not so strong to usurp powers of others. Therefore it is necessary, that one state body could constrain another, balance, balancing of branches of the power is necessary. The so-called system «controls and counterbalances» urged to provide it.

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A source: Muhamedzhanov Baurzhan Alimovich. the Republic Kazakhstan Form of government: the constitutional model and government practice. The DISSERTATION on competition of a scientific degree of the doctor of juridical science. Moscow - 2007. 2007

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