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1. The Teoretiko-legal characteristic of pre-election campaign and its value in election campaign.

Elections to authorities of various level are carried out throughout many centuries. Elections as the social phenomenon have been to some extent widespread at all historical stages of development of the state.

However the concrete konstitutsionno-legal recognition and fastening have received suffrage democratic principles only at 19-20 centuries. And today formation of public authorities and local government by means of elections is integral attribute of a democratic lawful state, especially significant element in system of universal values. In interaction with such basic installations of a modern society as a freedom of speech, the press and the mass information, free elections in the most general lines act as an indicator of the constitutional law and order, are the natural terminator of an arbitrariness of public authority, characterise the reached level of democracy, economic and a society political freedom, a legal status of all population of the country and each individual separately.

«The institute of elections as marks N.S.Bondar, - despite an accessory to public sphere, bears in itself and private-legal potential. C one party elections appear as a way of formation of public authorities, with another - participations of each citizen in a state administrative office» are expression of individual freedom. [2]

Elections as fundamental democratic institute are closely connected with sphere of realisation of the political rights and freedom of citizens which can receive the legal registration only in the presence of steady legal communications between the person and the state. And realisation of these rights and freedom is possible in the conditions of a recognition the state of certain level of a personal freedom, no less than comprehension and acceptance by the person of the role of the citizen.

In our opinion elections and especially level of activity of citizens in selective process is the major indicator of development of partner relations of the person and the state. The state is doomed to cooperation with the citizens, in it a guarantee of successful development both leading democratic institutes, and a policy, economy and social sphere. Knowingly in the first message of the present President of the Russian Federation to Federal assembly of the Russian Federation in 2001 V.V. Putin has noticed, that a key question of any power — trust of citizens to the state.

This theme is repeatedly mentioned in the television reference of the President of the Russian Federation to citizens on September, 3rd, 2004 after a series of the acts of terrorism made in the country for a short time interval.

For today harmonous enough legislative system is generated. However a number rather vital issues of legal regulation of selective process still wait for the permission. To the full it concerns such key stage of any elections, as pre-election campaign.

The concept of pre-election campaign is obviously possible for treating not unequivocally. Separate authors fairly designate pre-election campaign as a component of political propaganda. [3 [4] it is unconditional, pre-election campaign can be allocated as an independent stage of selective process. In legislative aspect pre-election campaign is the activity which is carried out

Special circle субъектов.5 Also the given concept can be characterised as a legal system component, namely, as podinstitut the suffrage.

Besides it pre-election campaign acts as one of competences of the subjective suffrage

Pre-election campaign can be considered as a version of political activity. As a version of political activity can act and political advertising. Can seem, that concepts "pre-election campaign" and «political advertising» are identical, however, it not absolutely so. The given phenomena, certainly, have many the general lines, such as the purposes, object, subjects, methods and forms. The concept «political advertising» and has not found a place though in mass media it often meets in the law, has undoubtedly propaganda character and pursues all same ultimate goals - achievement of certain results on elections. It is confirmed also Central ’ with electoral commission of the Russian Federation, in one of instructions it is noticed, that the purpose of political advertising - public opinion formation as for so t against those or other candidates, selective associations. And as its discriminating lines from other kinds and information / genres laconicism, prevalence emotional over semantic, broskost and repeatability act. However from an explanation of the Central Electoral Commission of the Russian Federation it is missed, in our opinion, the important difference of political advertising from pre-election campaign. It is their financial basis or the source of finance. If propaganda actions are carried out (should be carried out) at the expense of selective funds of candidates and associations political advertising does not fall under this requirement, and, hence, its scales, volumes and degree of influence on electoral moods drop out from under the legislative control.

Possibility of the organisation of a separate independent direction in formation of public opinion by means of political advertising is created, its scales depend on presence of financial assets at the candidate or association. And, certainly, to speak here about equality of candidates or associations hardly it is necessary.

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Also it is possible to note one more, in our opinion, the basic discriminating line between considered kinds of activity: it consists in terms. Pre-election campaign is spent during election campaign, and political advertising — does not join in that frameworks. Thus, the first is settled by norms of the suffrage, and the second does not come within the purview of norms of the selective legislation.

Proceeding from told, some variants of the permission of a problem of a parity of political advertising and pre-election campaign are admissible.

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First, in a kind of that political propaganda is deprived own standard registration, special law acceptance «About political propaganda» is not excluded. V.N.Falkov notices, that in such law should be not only corresponding concepts are established, forms, methods, the purposes are defined, subjects, objects of such activity, but also are accurately regulated its terms. He considers that, would be expedient to establish in the law an interdiction for carrying out of any political propaganda one month prior to the official beginning of corresponding election campaign. [5 [6]

Secondly, it is possible to try to bring pre-election campaign under Law regulation «About advertising», meaning that definition of advertising which is given in the given law: «Advertising - is distribution to any form by means of any news media about physical and the legal body, the goods, ideas and undertakings». However the registered candidate this not so usual physical person. Therefore owing to Law article 1 «About

To advertising »it cannot operate concerning political advertising and pre-election campaign. Also the problem in this case can concern and a question of responsibility for false advertising. The corresponding norm contains in the Criminal code of the Russian Federation [7]. However speech in it goes about responsibility for false professional advertising. Pre-election campaign and political advertising, certainly, it is impossible to carry to the commodity class and services.

Hence, the exit can consist in legislative definition of political advertising and other possible kinds and ways of giving of the information in uniform concept — pre-election campaign. Thus to fix, that realisation of the given actions is admissible exclusively at the expense of means of selective funds. There can be a question on, how it is necessary to regard the propaganda printing and audiovisual materials made by the independent person (for example, the citizen of the Russian Federation), expressing liking or an antipathy to this or that candidate (selective association) at the expense of own means? The answer to such question directly follows from the maintenance of norm of item 2 of item 54 of the Federal act «About the basic guarantees...» [8] according to which all printing and audiovisual propaganda materials should contain instructions on payment of their manufacturing from means of corresponding selective fund. In case of distribution of printing, audiovisual and other propaganda materials with infringement of the specified requirement, the corresponding commission is obliged to address in law enforcement bodies, court, the enforcement authority which is carrying out functions under the control and supervision in sphere of mass communications, with representation about suppression of illegal propaganda activity and about attraction of guilty persons to responsibility according to the legislation Russian Федерации.10

Thirdly, in our opinion, it is possible to affect the decision of the put problem by means of change of target dates. Having removed initial term of pre-election campaign - the moment of promotion of the candidate, it is possible to erase a side between political propaganda and pre-election campaign. In that case propaganda will actually begin long before ballot day, and, moreover, even before appointment of date of elections. Similar cases now not a rarity. Actually campaign of the "strong" candidates leaning against powerful administrative, financial and information resources, begins long before the beginning of directly pre-election actions, and even long before registration. For example, such situation took place at elections of the head of municipal union of a city of Krasnodar. Fulfilling duties of the head of a city of Krasnodar V.L.Evlanov, practically daily appeared in information releases of news on GTRK "Kuban". Thus mass-media, letting out a similar sort of transfer, persistently formed a positive image of the future head and on the contrary, only negative information moved concerning competitors. Thus, the sense and mission of pre-election campaign is lost.

Fourthly, the most extreme variant is possible: it is possible to follow on a way of an establishment of restrictions and interdictions. So, having established an interdiction for carrying out of political advertising, having supported the given restriction by measures of the state compulsion, it is possible to achieve decrease in use of unfair methods and forms in the course of such activity, having raised, thus, value and a role of directly pre-election campaign. The similar measure on the one hand will limit the right to free distribution of the information, first of all political, and also

The right to information reception, and as a result will concern suffrages. But, on the other hand, the democratic understanding of freedom assumes possibility of its restriction with a view of general welfare achievement. In our case the general welfare will consist in decrease in quantity of infringements in pre-election process, an exception of possibility of abusing suffrages. Especially, today, the policy of the government is directed to such channel. Are accepted the acts recognised as the Constitutional Court of the Russian Federation, not contradicting Constitution of the Russian Federation which nevertheless, in our opinion, in a certain measure limit suffrages of citizens, thereby depriving people to which posesses all power in the state, possibility to carry out that to the full. So, as an example it is possible to result the state decision regulating an order of appointment of heads of subjects of Federation or establishing a minimum quantity of members of political party. Thus, the problem of restriction of the rights and freedom in case of prohibition of political propaganda can cause polemic. <

Pre-election campaign as rather independent stage of selective process, can be considered as defined by the law, the election campaign period in which frameworks the registered candidates, selective associations, carry out selective actions with a view of prompting of voters to voting for the candidate, candidates, the list of candidates or against it (them). This activity includes strictly certain set of the selective actions which ultimate goal is full and consecutive realisation of a constitutional law of citizens to select and be the elite in public authorities and local governments. The federal act from June, 12th, 2002 «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» 11 not

Fixes concept of stages of selective process, and moreover, does not define concept of the most selective process. It is obvious, that the norms containing in the specified law, regulate procedure of elections to the Russian Federation, and, hence, from the point of view of the general theory of law, can be considered as the remedial. Set of such procedural norms means is directed on settlement of selective process in a general view. We believe, that the legislator not obosnovanno has departed from inclusion in the federal normative act of definition of selective process., In our opinion, it is possible to understand as that regulated by the legislation of the Russian Federation and the legislation of subjects of the Russian Federation consecutive activity of citizens, electoral commissions, public authorities, local governments, the organisations of tele-radio broadcasting and editions of periodic printing editions, public associations on preparation and elections. Selective process is the form of an embodiment of a political freedom of citizens and all society, procedure of realisation of suffrages and freedom of the person and the citizen. The form of realisation of suffrages and freedom are all stages of selective process. The unequivocal approach to allocation of stages of selective process in the scientific literature is not present. [9]

Pre-election campaign as a stage of selective process, it is possible to consider as the process established by the legislation which subjects are the citizens of the Russian Federation possessing selective right - and capacity, mass media, public, including selective associations, electoral commissions, public authorities, the local governments, spent to kinds, forms and methods, statutory, with a view of formation of political will of the people which realisation attracts strictly certain legal consequences — formation of structure and giving of lawful character state or local authorities.

Pre-election campaign (from an armour. «agitation» - the starting) is one of the central stages of selective process. Its value as independent stage of selective process consists in maintenance of the greatest possible openness of this process, reception by voters full and a trustworthy information about candidates on elective offices and their programs. Certainly, it is the most politized part of election campaign. C the help of various forms of pre-election campaign candidates, selective associations lead persistent struggle for deputy places in legislative (representative) public authorities or local governments.

The law «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» from June, 12th, 2002 contains concept «a supply with information of elections». It includes informing of voters and the pre-election campaign, called to promote will of citizens and publicity of elections. Here, in our opinion, the legislator has tried to consolidate in one.vid two opposite concepts as informing represents the messages informing on a state of affairs, on a condition something. [10 [11] opposite, propaganda is a vigorous activity on distribution of political ideas by various means: mass-media, oral performances for the purpose of influence on a wide range of people. [12] informing is not limited to time frameworks, proceeds from the special bodies which are not necessarily entering into a circle of subjects of propaganda activity.

Necessary sign of propaganda activity is its term. In the Federal act «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» are established time frameworks of propaganda activity. [13]

Pre-election campaign begins from the date of promotion of the candidate. It is represented pertinent enough and comprehensible as before registration of candidates there are no main characters of election campaign which are object and epicentre of propaganda actions. Pre-election campaign start in the foreign states is established differently. In Romania and Poland the pre-election campaign beginning date of the announcement of elections is considered, in a number of the countries such original reference point establishes certain day before voting date (in Turkey - for 15 days, in Israel - for 21 day, in Slovakia - for 23 days). [14]

Other starting term is established for pre-election campaign on channels of the organisations of tele-radio broadcasting and in periodic printing editions. So the Federal act from July, 21st, 2005 № 93-FZ «About modification of acts of the Russian Federation about elections and referenda and other acts of the Russian Federation» such term established in the Federal act from June, 12th, 2002 «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation», is changed. It is regulated, that pre-election campaign in mass-media begins 28 days prior to ballot day.

In our opinion the establishment of an interdiction for any pre-election campaign about day of registration is absolutely unreasonable if to start with the unique understanding of an essence of pre-election campaign as special legal regime of activity of all participants of selective process (including candidates, selective associations and mass media), having for an object to provide the certain information minimum guaranteed by the state allowing candidates to inform of voters the program installations to shade advantages before opponents etc.

Practically in all countries, as well as in Russia, pre-election campaign comes to an end 24 hours prior to ballot day or in day on the eve of voting. It becomes to reduce effect of psychological influence of propaganda and to give the chance to the voter to make the realised independent choice.

But nevertheless offers are brought to change a pre-election campaign total elapsed time, having kept away it from ballot day for some days. C these can agree, as in process of ballot day approach information influence essentially increases by electorate. Accordingly would be more correct to give to citizens possibility in quiet conditions to estimate all candidates, their program, propaganda campaign as a whole and to make the weighed, considered decision.

Pre-election campaign - a thing not material. Definition which was found for it by the legislator, extremely washed away. Under it it is possible to bring and that, as a matter of fact, is not pre-election selective propaganda. And, on the contrary, from it it is possible to withdraw that from the legal point of view is pre-election campaign.

The federal act from 19.09.1997"About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» besides the concept "pre-election campaign" specified on such as: «propaganda on elections"and"propaganda at elections». [15 [16] There is an opinion, that concept «propaganda at elections»

Optimal approaches to a designation of the considered phenomenon. Such point of view support S.D.Knyazev [17] and V.D.Mostovshchikov. [18 [19] in a counterbalance to the specified positions V.N.Falkov notices, that the term «propaganda at elections» has a serious lack - consists of a considerable quantity of words. For this reason its use for the name of considered concept, especially in the practical relation, will cause certain difficulties. Most successfully it could be used dvuhchlennyj the term «elective propaganda» or

«Selective propaganda». According to V.N.Falkova, the term «selective propaganda» more attractively looks. It is laconic, modern, convenient in the use and is organically entered in that conceptual number with which the legislator (the suffrage, suffrages of citizens, electoral commission, selective process etc.) operates now.

In our opinion, each of the listed concepts can be used equally successfully in the legislation, and the choice of a concrete variant depends on subjective preferences.

The special attention is deserved by concept of pre-election campaign of legislative aspect. According to the Federal act «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» pre-election campaign is understood as the activity which is carried out in election campaign and having for an object to induce or inducing voters to voting for the candidate, candidates, the list, lists of candidates or against it (them). [20]

Proceeding from legislative definition, the paramount purpose of pre-election campaign - «to induce voters to vote for...».

Pre-election campaign in favour of voting for this or that candidate (the list of candidates) is as a matter of fact a starting step and simultaneously the basic link in business of acquaintance of voters with the person and electoral programmes (platforms) of this or that candidate, selective association, and also in business of search, development and strengthening of similar installations, positions in election campaign. C the points of view of these subjects of election campaign pre-election campaign represents the most widespread and effective tool of political strike, struggle in which they get or develop the political force. [21]

It is obvious, that propaganda in favour of voting for or against candidates (lists of candidates) includes indirect propaganda for voting irrespective of, want or subjects of its carrying out do not want it. At the same time propaganda for voting can not include propaganda in favour of voting for or against candidates (lists of candidates).

According to A.E.Postnikova «pre-election campaign any propaganda activity connected with elections but only activity of subjects of pre-election campaign on preparation and distribution of the information, having for an object to induce voters admits not to take part in voting for or against those or other candidates (lists of candidates). The propaganda activity, having for an object to affect the citizen of the Russian Federation on purpose to force it to participation or nonparticipation in elections, is not pre-election campaign. It contradicts a principle of voluntariness of participation of the citizen in elections». [22]

Voluntary voting, on the one hand, and voluntary refusal of it, with another, - in an equal measure lawful forms of behaviour of citizens on elections. However in A.E.postnikov's reasonings loses sight of one extremely important point. Forbidding to affect voters, the legislator specifies in inadmissibility of use of "compulsion" as means of such influence, and pre-election campaign is under construction on the basis of "prompting". The question, thus, is reduced to legitimacy of applied means of formation of will of voters. In concept Russian to "force and"induce"bear different semantic loading and cannot be considered as synonyms. To force means« to force to make something », and to induce -« to incline to any action ». It is necessary to spend accurate distinction between two specified means, one of which is supposed by the law, and another, on the contrary, is directly forbidden. Hence, the propaganda activity, having for an object to induce voters to voting, does not contradict a principle of voluntariness of participation of citizens in elections.

According to S.D.Knyazev as the pre-election campaign purpose prompting to refusal of voting should be defined. It. The opinion is based on absence of legislative regulation of such activity. He marks: «... This serious omission of the federal legislation as similar actions are actually excluded from legal regulation sphere and by that is created favourable circumstances for display of abusings in the given sphere». In COMMUNICATION C by it S.D.Knyazev suggests to specify concept "pre-election campaign" at the expense of instructions entering that it includes also the activity inducing or having purpose to induce citizens to refusal of participation in [23 [24] [25] [26]

Elections. He considers, that such approach would allow «to cover the pre-election campaign maintenance practically all forms of display of the pre-election activity, influencing the relation of citizens to elections» and in the greatest measure would correspond to logic of legal regulation and an internal coordination of separate instructions of the Federal act from June, 12th, 2002 № 67-FZ «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation», that will interfere with participation, in particular, the state bodies, local governments, the persons displacing the state or municipal posts, in the propaganda, called to boycott elections. [27 [28] similar thought is stated also by M.S.Matejkovich. He considers, that this decision will allow «to put a legislative barrier first of all for actions of the officials who have been not interested in timely and periodical elections». 4

To

C the legallistic point of view appeals to nonparticipation in elections are not considered as pre-election campaign, and, accordingly, *: to them statutory rules of its carrying out and responsibility for their infringement are not applicable. However it does not mean, that подобные* actions are completely excluded from legal regulation sphere. It is necessary to consider, that the suffrage is an institute of the public law, and the regulation of public relations in public branches and right institutes is based on allowing type of the legal regulation which essence consists that everything is forbidden, except directly permitted by the law. Unreasonable the argument that inclusion of considered activity in concept of pre-election campaign will create obstacles to participation of the state bodies, local governments, the persons displacing the state and municipal posts, in the propaganda, called to boycott elections thereupon is represented.

The specified bodies and officials, and also mass media constitute special group of subjects of selective legal relations to which the duty, first of all, is assigned to assist realisation of suffrages of citizens. They have the right to operate only how it is offered norms of the selective legislation. From this follows, that appeals to nonparticipation in the elections, extended by public authorities and local government, mass media, there is not that other, as direct law-breaking. [29]

The offer to make the addition specified above to concept "pre-election campaign" raises serious doubts in its constitutionality. As is known, in the Russian Federation the rights and freedom of the person and the citizen admit and guaranteed. At the same time realisation of the rights and freedom of the person and the citizen should not break the right and freedom of other persons. [30] C the points of view of the specified positions inclusion in concept "pre-election campaign" as its purpose prompting to voting as this activity promotes realisation of a constitutional law of each citizen is represented lawful to select and be the selected works. While inclusion in this concept of such purpose as to refusal of voting would mean prompting, that laws suppose the activity inducing to refusal of realisation of this right that would contradict the positions of the Constitution of the Russian Federation considered above. Also laws and other legal acts accepted in the Russian Federation, should not contradict the Constitution of the Russian Federation. [31]

Absence in a law in force of the purposes inducing citizens to voting, perhaps, opens boundaries for excessively wide interpretation of concept "pre-election campaign", up to abusings, and also can lead in practice to increase in rates of absenteeism which «at the best leaves a negative mark on process of democratic formation of the state bodies, and in the worst, at voting of only insignificant part of elective body, discredits the constitutional principle of democracy and deprives these bodies of necessary legitimation». [32 [33] [34] Accordingly, in our opinion, it is necessary to note in pre-election campaign definition and the purpose - «prompting of citizens to voting».

In the literature allocate some the interconnected factors causing absenteeism. It can be indifference and political apathy (are characteristic for youth), an uncooperative altitude to prospective results of elections (it is characteristic for voters is more senior 50 years), the protest (the poorest levels of population), external factors of mass action (the bad

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Weather, departure for a city, seasonal works) etc.

According to a definition containing in the Federal act from June, 12th, 2002, pre-election campaign activity, «having admits

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The purpose to induce or inducing... ».

It is possible to agree with V.N.Falkova's position which believes, that is necessary to exclude from a considered definition instructions on result of pre-election campaign (to clean words «... Or inducing...»). [35] It specifies, that actually "prompting" as the propaganda purpose looks illogically. Between formation of certain behavioural installation in consciousness of the person and till its moment. Actual realisation always there is some time interval. The voter can passively support the candidate, but for a variety of causes both subjective, and an objective order not to show activity, that is not to participate in voting. A category «the activity inducing...» Has vaguely-estimated character. It is capable to generate unreasonable subjectivity from the competent body having an opportunity in different situations to put in the above-stated formula different sense. Strictly speaking, in election campaign any extended information anyhow connected with the candidate, can be considered as pre-election campaign. So, electoral commissions, according to assigned to them the law a duty, carry out informing of citizens on a preparation and elections course, on candidates, on selective associations. Within the limits of this activity they, for example, equip the information stand indoors for voting, publish in mass-media the decisions made by them on removal of preventions to candidates etc. Obviously, that such activity does not pursue the propaganda purposes, but after all it is impossible to deny and that it forms the relation of voters to the candidate. And if to estimate it irrespectively the purposes, and only from a result position - that it not that other, as pre-election campaign. But the especially sharply discussed problem costs for journalists and mass media. So wide formulation of concept of pre-election campaign allows to carry any journalistic material containing the information on candidates and selective associations to propaganda, that can involve application to them of measures of administrative responsibility. [36]

Also it is impossible to ignore and such moment, that definition of concept the "pre-election campaign", containing in the Federal act from June, 12th, 2002 «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation», has undergone changes. Such changes have been brought in connection with coming into force of the Federal act from July, 21st 2005 «About modification of acts of the Russian Federation about elections and referenda and other acts of the Russian Federation». In particular, words «or against all candidates (against all lists of candidates)» have been excluded. It is represented, that entering of similar change has been predetermined by aspiration of the legislator to direct selective process, voting procedures and summarising in an operated and predicted channel. Recently in separate regions the tendency of expression of mistrust of the government that finds the display in mass ignoring of elections or a victory of "candidate" against all »is planned. The Federal act gives possibility to subjects of the Russian Federation independently to define necessity of inclusion for ballots of a line« against all ». However, with reference to propaganda actions, such permission it is not provided. Thus, in a situation when there is no possibility to agitate to vote« against all », but there is a possibility to vote« against all », it is possible to approve, that the received result in the form of certain percent of voices« against all »does not grow out of pre-election campaign and is not entered in a circle of its purposes. Accordingly, in our opinion, would be correct to transfer in conducting subjects of the Russian Federation and an inclusion question in the regional law as the pre-election campaign purposes «prompting to voting against all candidates (against all lists of candidates).

Possibility exception to agitate, and, accordingly, to vote «against all», on our belief, is capable to affect also formal results of elections, but thus having hidden real indicators of electoral preferences. At a society always there are the persons expressing protest moods concerning the existing mode and pre-election struggle. So, on the basis of the All-Russia interrogation city and agricultural population in 100 settlements of 44 areas, edges and republics of all economic-geographical zones, spent by Fund «Public opinion«, how they understand

Expression "pre-election campaign", whether is enough them the information on parties and how parties tell about themselves of 12 % from 68 % of participants of the interrogation which has answered the first question, spoke not about sense of the given word-combination, and expressed the uncooperative altitude, naming pre-election campaign by "chatter", "trepologiej", "ochernitelstvom", "payoff", «waste of money», «vtjurivaniem the necessary opinion», "delirium", «fair of rascals». [37] Accordingly, it is not excluded, that in the absence of possibility of expression of the protest, through voting against everything, similar «the electoral negative» will find other form of display. For example, it is possible to predict, increase of number of the used bulletins which at summarising of elections will be recognised by void.

Analyzing positions containing in the legislation on pre-election campaign, it is necessary to pay attention on variativnyj the approach of the legislator to a formulation of the right connected with pre-election campaign: the Federal act «About the basic guarantees...» Speaks about the right to participation in pre-election campaign [38] while the Federal act «About presidential elections» [39] and the Federal act «About elections of deputies» [40] is contained by articles called «the Right to pre-election campaign».

Russian explanatory dictionary opens a word to "participate" as «to take part in something, to have a share in any business». [41] In other words, participation can be defined as entering of the contribution into any general (collective) business, and the right to participation as legally provided possibility to bring the contribution to collective business. It is important to underline, that the characteristic kollektivnosti means impossibility of achievement of result of business in an individual order. At the same time the right to carrying out of any activity can be realised both individually, and collectively. Thus, it is visible, that inconsistency of the legislator in fixing of the right connected with pre-election campaign, there is an expression of its ambiguous relation to the nature either as collective, or as individual right.

The right connected with pre-election campaign, is an element of suffrages of the citizen so, bears in itself their legal properties. Hence, definition of their accessory will allow to resolve the designated problem.

Both active, and passive suffrages should be considered as the individual rights belonging and realised by the subject individually. The mess arises because the subjective suffrage (as the right to participate in elections as the candidate, and the right to vote for that candidate as whom the voter considers more preferable) being an element of the constitutional status of the person, simultaneously represents an element actually institute of elections by means of which realisation of the constitutional characteristic of Russia as the democratic state is provided. [42]

The double inclusiveness of suffrages connected with chastnopublichnymi by the beginnings of institute of elections, cannot form the basis for their understanding as collective. As cannot form the basis and seeming kollektivnost their realisations, concerning actually not to realisation of suffrages, and to procedure of elections. The question on the characteristic of the right to pre-election campaign (proceeding from its individual character, it should be called so) should be solved similarly.

Especially it is necessary to tell about subjects of law on pre-election campaign. Pre-election campaign is legal activity, therefore it

The subject is presented not simply in the form of biological or mental beings, and as the carrier of politiko-legal, is social-reformative relations (the social, legal subject). [43] the selective legislation carries enough wide range of the organisations and all citizens of the Russian Federation To that. Subjects of pre-election campaign in Russia can be and foreign subjects. But this exception of the general rule is applicable only concerning municipal elections and operates only in that case if, first, foreigners constantly live in territory of corresponding municipal union and, secondly, the Russian Federation concludes the international treaty with the country of their civil accessory where there is a necessary reservation. [44]

The organisations and the persons who are carrying out propaganda activity, have in force, the law various volume of the rights and organizational guarantees of their realisation, occupy a various legal status, therefore within the limits of uniform concept of the subject of law on pre-election campaign it is possible and it is necessary to allocate its two versions: the general and special subjects of pre-election propaganda activity.

On pre-election campaign it is possible to carry all citizens of the Russian Federation whom public associations, including the political parties which are not selective associations are not neither candidates, nor authorised representatives, and to the general subject of law.

Candidates and their authorised representatives, initiative groups of voters concern special subjects of propaganda activity, selective associations and their authorised representatives. Also, on our belief, to group of special subjects it is necessary to carry the organisations of tele-radio broadcasting and the editions of periodic printing editions used for a supply with information of elections.

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The participants of propaganda concerning the general subject, can operate as on the party of candidates, selective associations, and is completely independent, pursuing only the aims. It gives smaller, than to special subjects, pre-election campaign guarantees. They have the right to agitate, but a duty of the state and municipal bodies to give the minimum conditions for propaganda is not established. The organisations which are not public associations (including the enterprises), the persons who are not the Russian citizens, are not allocated by the right to participate in propaganda.

In a case when any organisation under the civil-law contract with authorised on carrying out of propaganda by the person, for example, produces and extends propaganda materials, there are no bases to consider, that this organisation carries out propaganda. It acts only as the executor of propaganda spent by the authorised person.

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Other situation when the citizen who has been not registered as the candidate, agrees with the organisation of tele-radio broadcasting or edition of the periodic printing edition about granting on a free basis of a broadcasting time or the printing area is possible also. In that case there is a question, the organisation of tele-radio broadcasting or edition of the periodic printing edition will concern what category of subjects. Here it is possible to agree with opinion With. V.Bolshakova who considers, that such subjects «have not the right to render someone the free services connected with elections, including to give to citizens in the status of voters a broadcasting time or the printing area». [45] It gives reason for it that the right to receive given time and the area for a free basis the law allocates only the registered candidates, and at the citizens who are not those, other legal status in selective process.

Thus, there are bases to carry the organisation of tele-radio broadcasting and edition of periodic printing editions to a category of special subjects of pre-election campaign.

Pre-election campaign can be considered as a legal system component. In the modern legal literature it is not developed any common opinion of structural construction of the legal system, including constitutional law, [46] and also about their division into constituting standard sets. Meanwhile the understanding of pre-election campaign completely depends on corresponding treatment of these starting positions in considered quality.

Pre-election campaign as a legal system element, includes set of the rules of law regulating the whole complex of propaganda legal relations. Thus, pre-election campaign could be characterised as the legal institution representing a complex of rules of law, regulating relations concerning activity of subjects of pre-election campaign. However, being based on the general theory of law, the legal institution is a branch part (podotrasli) the rights and legal systems as a whole. In our case pre-election campaign t is a suffrage part. But, what the suffrage from legal system positions represents? In this respect there is no common opinion. For example, in some cases pre-election campaign is characterised as public law institute. [47] C the given statement it is impossible to disagree, proceeding from principles of division of legal branches on branch private and the public law. Though the branch accessory of norms and institutes here has no essential value.

The considerable part of authors holds the opinion that the suffrage is an institute of a constitutional law. [48]

The position looks rather original And. V.Ivanchenko who considers, that it is necessary to consider the suffrage as the interbranch complex institute representing the multilevel and ordered body of laws of a various branch accessory. [49] but in the modern scientific literature existence of complex legal institutions is frequently called in question. D.A.Kerimov approves, that the right, being an objective category, cannot have complex branches and institutes, they can be created only legislative by. [50]

In our opinion fair the position is represented And. V.Ivanchenko, according to which suffrage — interbranch complex institute. It is possible to speak about its such position in the legal system, considering a place of the given body of laws in branches of the constitutional and municipal right. Does not raise the doubts that fact, that the constitutional law has the status of the basic branch of law. For the municipal right the certain features caused by specificity of a subject of its regulation are characteristic. So in the legal literature it is noticed, that the public relations constituting a subject of the municipal right, represent difficult complex system of the economic, financial, welfare, political, organizational-administrative relations arising in the course of the organisation and realisation of municipal authority, the decision the population of questions of local value. Such feature of the municipal right speaks about its complex character. Complex character

The municipal right means, that it is secondary branch which is formed and develops «for the account» others, first of all main branches, borrowing from them separate norms and the whole institutes. [51] branch of the municipal right has system character. Constituting elements of system of the municipal right are institutes of the municipal right. The institute of municipal elections concerns number of those also. [52] differently it can be defined and as institute of municipal suffrages. [53] it allows to approve, that selective relations join in a subject of regulation and the constitutional and municipal right. Thus, the suffrage is interbranch complex institute.

Numerous enough part of jurists considers the suffrage podotraslju a constitutional law. [54] it is proved by that the suffrage has a specific subject of the legal

Regulations within the limits of the general subject of branch; has set in detail and functionally interconnected institutes; has

Own sources (laws and the subordinate legislation). But the specific subject, set of institutes both own sources have also many institutes of a constitutional law, for example, such as institute of citizenship of the Russian Federation, institute of the executive authority which never applied for a role constitutional podotrasli.

Therefore, in our opinion, such system design at which the suffrage should be considered as right institute quite objectively looks.

What in that case a place in this system of pre-election campaign? In the majority of sources last is represented as institute, as

Suffrage component. [55] but, proceeding from the previous position about institutsionalnoj essence of the suffrage, with similar structure to agree it is impossible, as two identical single-level elements cannot join in structure each other. Differently one institute cannot include other institute.

Hence, there is a basis to speak about narrower (rather than right institute) a structural legal category. The mention of something similar in the scientific literature meets extremely seldom. So, there is an opinion that within the limits of difficult interbranch institutes which, certainly, the suffrage is, smaller independent formations named subinstitutes can take place. [56]

Thus, and it is possible to consider pre-election campaign as subinstitute or legal podinstitutom. As the basis to that numerous raznootraslevyh the norms regulating pre-election campaign, their functional isolation presence serves in system of the norms regulating selective process.;

Proceeding from it, and in the general legal system it is possible to present the konstitutsionno-legal block as follows: *

- The constitutional (state) right, as leading branch of law of Russia;

- The suffrage, as the interbranch complex institute including a large quantity of norms of various branches of law;

- Pre-election campaign, as legal podinstitut, consolidating numerous raznootraslevye norms.

It is similarly possible to present and the munitsipalno-legal block:

- The municipal right, as complex branch of law;

- The suffrage, as the interbranch complex institute including norms of various branches of law (including regulating relations concerning municipal elections);

- Pre-election campaign as legal podinstitut, consolidating raznootraslevye norms (including, and the regulating relations connected with realisation of the right to pre-election campaign in the course of municipal elections).

Pre-election campaign can be shown as one of competences of the subjective suffrage. The right maintenance, according to the general theory of law, includes three basic competences: the right to own actions, the incorporeal right and the claim right. Through a prism of the specified competences probably to consider and pre-election campaign. So, comparing it with the right to own actions, it is possible to notice, that the right to pre-election campaign realisation assumes mainly own active actions of the authorised person, for example, carrying out of meetings and meetings with voters. Pre-election campaign, from the point of view of the incorporeal right, recognises that to the right of the concrete person korrespondiruetsja a duty of other person. In nastnosti, possessing the right to the pre-election campaign, the authorised subject can demand from the obliged subjects of granting of possibility of realisation of the right. For example, the registered candidate has the right to demand from mass-media of granting of a free broadcasting time. The claim right also can be applied to selective legal relations concerning pre-election campaign. The specified competence is pertinent in a case when the party liable evades from fulfilment of certain actions in favour of authorised or abstains from their execution. So, the person, the right to pre-election campaign of which, in its opinion, is broken, has the right to address for its protection to competent state bodies, for example, in electoral commission.

Thus, being the independent subjective suffrage, pre-election campaign represents given to the authorised subjects the law possibility to realise in admissible forms and methods propaganda activity, to demand from parties liable of fulfilment of certain positive actions or abstention from fulfilment of the certain negative actions, provided with measures of the state compulsion.

Pre-election campaign makes essential impact on mood of people. The outcome of elections in many respects depends on degree of organisation, readiness and purposefulness of pre-election campaign. In pre-election campaign interests of various political and economic forces sharply face, struggle for voices of voters becomes aggravated. [57] experience of the Russian election campaigns of last years, according to N.S.Bondarja, shows, that pre-election campaign is one of most konfliktoobrazujushchih versions of selective actions of participants of selective process both at level of the Russian Federation, and in its subjects, and also at municipal level of the organisation of selective process, by right being considered as the most sensitive nerve of all election campaign. [58]

Being based on the legal material devoted to regulation of election campaigns, it is possible to establish principles of carrying out of pre-election campaign. There are bases to say that on pre-election campaign extend obshchepravovye principles (legality, democratism, equality of all citizens before the law), and also special principles of the suffrage (freedom of elections, alternativeness, general equal, a direct suffrage at ballot, publicity of elections etc.) . At the same time it is possible to allocate and the basic democratic principles of pre-election campaign. That concern: 1) objective and fullest informing of electorate on candidates, political parties and their programs, and also on a course of election campaign and voting rules; 2) an easy approach to mass-media of all political forces participating in elections; 3) their equality before the law and public authority bodies; 4) freedom and independence in a choice of the maintenance, forms and pre-election campaign methods; 5) competitiveness; 6) responsibility for infringements of an order and carrying out rules; 7) observance of norms of ethics and morals at pre-election campaign carrying out.

Norms of morals and morals are trampled during election campaigns often enough. In particular, the extremely unethical, comparison of candidates on age, a state of health, accentuation of attention to their physical defects is immoral. Constructive M.S.Matejkovicha's offer which considers thereupon is represented, that requirements about necessity of ethic, moral conducting pre-election campaign should be included in the current legislation, and the control over their observance is assigned to special advisory council at the Central electoral commission. Similar advisory councils can be created and in subjects of the Russian Federation. [59]

Democratic transformations to our state should mention a problem of "cleanliness" of elections of authorities of all levels. Honesty of elections depends on many factors among which the major role belongs to irreproachable, exact and punctual performance of instructions of the selective legislation by all persons concerning this procedure. Thus the country legislation should correspond to the most progressive and advanced democratic operating time in this area. Function of the control over an election campaign course as a whole, and at a pre-election campaign stage in particular has important value also.

Functions of the control over realisation of the right to pre-election campaign and its protection carry out: system of electoral commissions, organs of the Prosecutor's Office, the Ministry of Internal Affairs. Besides the control over a course of the selective process which is carried out by competent bodies, it is possible to speak about public control which is carried out by representatives of political parties, other public associations, including by means of creation of committees, funds of assistance to carrying out of fair, fair elections. A special category of subjects of public control observers, including constitute foreign (international). As marks A.A.Veshnjakov, - «at a bookmark of bases of the new selective legislation to Russia we have intentionally come fixing an openness of national selective process for the international supervision. . Today on elections we accept record quantity of foreign (international) observers, actively we participate in programs of the international supervision over elections abroad ». [60]

Infringements of human rights and the citizen in the course of elections - the phenomenon not rare. At a pre-election campaign stage as practice of last election campaigns shows, are often trampled moral and rules of law. As a rule, affairs about infringements of suffrages of citizens at a stage of pre-election campaign before proceeding do not reach. So during election campaigns at elections of public authorities of subjects of the Russian Federation in 2003 by vessels of subjects of the Russian Federation it has been considered only 7 complaints concerning pre-election campaign. [61] though similar infringements much more, their consideration is made in the corresponding selective

The commissions. It is obvious, that electoral commission in a kind bolshego volume of duties on the organisation of selective process, in rather deadlines at times not in a condition objectively to resolve disputable business. Sometimes an establishment of actual facts upon infringement of an order of carrying out of pre-election campaign not myslimo without the bodies which are carrying out operatively-search activity. It testifies to presence of a problem of increase of an overall performance of the bodies which are carrying out function of the control over order of carrying out of pre-election actions.

We believe what here pertinently to cite as an example experience of regulation of selective process in Brazil where at the constitutional level the system of bodies of selective justice is established. The section of V Constitution of Brazil is called «Judges and courts on selective affairs». Bodies of selective justice possess following powers:

- Registration of political parties;

- Division of the country into polling districts;

- Establishment of date of elections;

- Elections, the statement of results, delivery to the selected works of mandates;

- Consideration and removal of decisions at an illegal exception of electoral registers;

- Proceeding and removal of decisions on affairs habeas corpus, or to orders on protection if it concerns elections;

- Consideration of the statements, the concerning duties assigned by the law on political parties concerning their reporting and sources of their money resources.

Thus, functions of the Central Electoral Commission, electoral commissions of subjects of Federation, vessels of the general jurisdiction, local governments are assigned to bodies of selective justice. In our opinion formation of specialised bodies of selective justice in

To Russia probably also could promote increase of efficiency of the permission of the questions at issue arising in the course of elections, however the designated idea demands deep judgement and studying that is beyond the present research.

So, in end of the given part of work it is possible to formulate following conclusions:

1. Pre-election campaign is the important element of selective process. It predetermines electoral behaviour of voters.

2. The concept of pre-election campaign can be considered in several displays. First, pre-election campaign is a version of political activity. Pre-election campaign differs from political advertising for carrying out: the first is carried out within the limits of selective process. Secondly, pre-election campaign is an independent stage of selective process. It proves to be true that it is limited to time frameworks, has initial and final terms; and also the actions which are carried out in the course of propaganda, attract certain legal consequences. Thirdly, the concept of pre-election campaign of legislative aspect represents the activity which is carried out in election campaign and having for an object to induce or inducing voters to voting for the candidate, candidates, the list, lists of candidates or against it (them). Fourthly, pre-election campaign can be considered as a component of the legal system of the Russian Federation. It represents itself as complex legal podinstituta. Fifthly, pre-election campaign is one of displays of the subjective suffrage. It can be proved that it includes three basic competences: the right to own actions, the incorporeal right and the claim right

3. As one of discriminating signs of pre-election campaign its term acts. According to the current legislation propaganda begins with the moment of promotion of the candidate and comes to an end in a zero of hours one days prior to ballot day. Establishing such time frameworks, the legislator has delimited pre-election campaign from other kinds of political activity. The propaganda activity which is carried out behind frameworks of election campaign, cannot be recognised by pre-election campaign, and, accordingly, drops out of sphere of regulation of the electoral law.

4. An obligatory sign of legislative definition of pre-election campaign is its purpose. Pre-election campaign as it is underlined in the law, is the activity, having for an object to induce or inducing voters to voting for the candidate, candidates, the list, lists of candidates or against it (them). The problem of a designation of the purposes of pre-election campaign in scientific circles causes polemic. There is an opinion according to which in definition the legislator should specify as the purpose «prompting to voting», and also «prompting to refusal of voting». There is also a point of view that it is necessary to exclude from definition «or inducing» as in that case action and result coincide.

5. The right to pre-election campaign carrying out the special circle of subjects possesses. Such persons it is possible to subdivide on two categories: the general subject and the special subject. All capable citizens who are not candidates concern the general subject; to the special subject - candidates and their authorised representatives, initiative groups of voters, selective associations and their authorised representatives, and also the organisations of tele-radio broadcasting and edition of periodic printing editions.

6. Cases of infringement of an order of carrying out of pre-election campaign are frequent. As a rule, such infringements have the latent (latent) character. The effective control system is necessary for suppression of similar cases behind selective process. In the Russian Federation the basic subjects of the control in the given sphere are electoral commissions which are allocated by corresponding powers. Before proceeding the affairs connected with infringement of rules of pre-election campaign, practically does not reach. Electoral commissions frequently do not have possibility of the objective permission of disputable business concerning pre-election campaign.

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A source: Chudov Paul Sergeevich. Konstitutsionno-legal regulation of pre-election campaign in the subjects of the Russian Federation who are in limits Southern federal district. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2005. 2005

More on topic 1. The Teoretiko-legal characteristic of pre-election campaign and its value in election campaign.:

  1. § 2. Kinds of infringements of the legislation on intellectual property in pre-election campaign
  2. 3. International legal aspects of standard regulation of pre-election campaign in the modern democratic states.
  3. 2. Formation of standard regulation of pre-election campaign in Russia.
  4. § 2. Pre-election campaign as a guarantee of realisation of suffrages of citizens in the Russian Federation
  5. Chapter 2. A konstitutsionno-legal liability of infringement of the legislation on the intellectual Properties in pre-election campaign
  6. 2. Features of the legislation of subjects of the Russian Federation which is in limits of Southern federal district, about pre-election campaign and practice of its realisation.
  7. § 1. Features of separate elements of structure of infringement Legislations on intellectual property in pre-election campaign
  8. § 3. Konstitutsionno-legal responsibility of candidates for Infringements of an order of carrying out of pre-election campaign as a guarantee of the rights of citizens on reception of the information on elections
  9. the Characteristic of an image in election campaign (January 2012г.)
  10. the Chapter II. The maintenance legal podinstituta - pre-election campaign and practice of realisation of its norms in the subjects of the Russian Federation who are in limits of Southern federal district
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  13. the Characteristic of an image in election campaign (January 2012г.)
  14. § 4. Restriction of the constitutional freedom of speech during pre-election campaign. The role of a network the Internet in realisation of a freedom of speech during this period
  15. Koval Darya Vladislavovna. INFRINGEMENTS of the LEGISLATION ON INTELLECTUAL PROPERTY In PRE-ELECTION CAMPAIGN In the CONTEXT of KONSTITUTSIONNO-LEGAL RESPONSIBILITY. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2016, 2016
  16. Chudov Paul Sergeevich. Konstitutsionno-legal regulation of pre-election campaign in the subjects of the Russian Federation who are in limits Southern federal district. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2005, 2005
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