The exercise of executive power (public administration) is implemented in specific forms of executive and administrative activity (forms government controlled) executive authorities and their officials.
The category "form of government" is associated with the implementation of the competence of the executive authority, since it is management actions that allow for the external expression of the competence (ie, duties and powers) of the subject of government.
Forms of state- management activities bodies of executive power and their officials are determined by law, enshrined in laws and other regulatory legal acts that determine the activities of these bodies. Consequently, in public administration, state bodies and officials should use only those forms of activity that are established by the norms of administrative law. Failure to comply with the law entails the invalidity of the actions of the executive authority or official.
It should also be noted that the administrative-legal forms of public administration always entail clearly defined legal consequences associated with the emergence, change or termination of administrative-legal relations (for example, drawing up a protocol on an administrative offense, issuing an order to assign a class rank, etc.). P.).
In this way, under the administrative-legal form of public administration is understood as an outwardly expressed action of an executive body or its official, determined by the nature, carried out within the framework of its competence and causing legal consequences. The type of a specific form of public administration is determined by the tasks facing the executive authority or official, as well as the functions they implement.
Types of administrative and legal forms of public administration in administrative law are classified according to the content and method of expression.
Lawmaking form public administration consists in the issuance by the subjects of public administration of by-laws of regulatory legal acts of management that regulate public relations in the field of their public administration activities. Normative legal acts of management of federal executive bodies are issued on the basis of and in pursuance of the Constitution, federal laws, normative legal acts of the President of the Russian Federation and the Government of the Russian Federation. The executive authorities of the constituent entities of the Russian Federation in their law-making activities are also guided by the legislation of the relevant constituent entities of the Russian Federation.
Enforcement Form public administration, in turn, is divided into the issuance of individual legal acts of management (acts of application of the rules of law), as well as the performance of actions of a legal nature.
The publication of individual legal acts of administration is carried out by the subject of state administration when, due to the circumstances of the case, the subject of state administration, in accordance with legal norms, must make a decision in the form of an individual legal act.
The performance of actions of a legal nature is carried out in cases where legal norms do not require the adoption of a legal act from the subject of public administration and the subject of government performs the legally significant actions provided for in these cases (for example, drawing up a protocol, issuing a permit, etc.).
According to its content, the law enforcement form of public administration is divided into regulatory and law enforcement.
The regulatory form is used in the process of public administration in various areas of state activity (economic, socio-cultural, defense, foreign policy, etc.).
The law enforcement form is used in the application of coercive measures against persons violating the norms of administrative law, in the protection of the subjective rights of citizens and organizations, as well as in resolving disputes arising in the field of management.
By way of expression legal forms of public administration are divided into written and oral.
The main form of government is the written form. This form is used in solving managerial issues that require written registration of the actions of a public administration entity, which gives rise to legal consequences. The content of this form of public administration consists in the preparation and adoption by the relevant executive authorities of legal acts of management (normative and individual), as well as the execution of administrative documents (protocols, acts, certificates, and others).
The oral form of state administration is used in the cases provided for by legal norms when resolving operational issues and consists in issuing oral orders, instructions and commands, which also entail legal consequences.
It is necessary to distinguish from the legal forms of public administration organizational actions and logistics operations, which are also used in the process of public administration.
Organizational actions are expressed in the organization of office work, methodical work, writing reports, holding meetings, training staff, implementing scientific organization labor and other organizational work in the executive branch. These actions are aimed at improving the culture and efficiency of management activities and are not associated with the emergence, change or termination of administrative and legal relations.
Material and technical operations are designed to ensure the work of executive authorities. These operations include the organization of material and financial support of the state body, the organization of the work of the expedition, transport, the introduction of office equipment and a number of other measures.
One of the main administrative and legal forms of public administration is publication of legal acts of management.
Legal acts of management have the following characteristic features: subordination, legal character, authoritarianism, imperativeness.
Subordination act of management means that the issued act should not contradict the requirements of the current legislative acts and is issued within the competence of this governing body. The legality of a management act in a broad sense is also understood as the compliance of acts not only with the law, but also with acts of the President of the Russian Federation, the Government of the Russian Federation and other executive authorities.
Legal nature acts of management means that it can cause certain legal consequences. These consequences may be expressed in the establishment of appropriate rules of conduct (norms) of a general nature or affect relations associated with specific persons.
imperative act of management is associated with the state-imperious powers of the subjects of state administration and is expressed in the obligation of its execution, regardless of the consent of the performers.
In this way, legal act of management can be defined as a unilateral legally authoritative decision of a public administration entity based on legislation, issued within its competence, regulating public relations in the field of public administration or aimed at the emergence, change or termination of specific administrative and legal relations.
Legal acts of management should be distinguished from office documents which do not have a legal nature (protocols, acts, certificates, reports, reports, etc.). Official documents do not establish or change specific legal relations. However, official documents may serve as the basis for issuing legal acts of management.
Legal acts of management are issued, as a rule, in writing. However, in some cases, its oral form is also allowed, for example, in military administration in the case of giving oral orders and in a number of other cases determined by law.
Legal acts of management can classify according to the following criteria.
Legal content legal acts of management are divided into normative and individual.
Regulatory acts are those acts of management that contain the rules of law, regulate public relations in the field of public administration, are designed for a long period of validity and do not have a specific personalized character. Administrative law-making finds its expression in the normative legal acts of management. They concretize the norms of laws and other acts of higher legal force and define the model rules of conduct in the field of public administration. These acts establish legal status bodies of executive power, the procedure for performing certain actions and procedures of a state-administrative nature is determined, the necessary restrictions and prohibitions are established, and other issues in the state-administrative sphere are regulated. Regulatory legal acts of management are one of the most important sources of administrative law.
Individual acts of management do not contain the rules of law. They resolve specific management issues on the basis of laws and other regulatory legal acts, i.e. are acts of applying the rules of law to specific cases. These acts cause legal consequences in the form of the emergence, change or termination of specific administrative and legal relations (for example, a decree of the President of the Russian Federation on the assignment military rank senior officer).
According to the bodies that publish them, legal acts of management are subdivided:
to decrees and orders of the President of the Russian Federation on issues related to public administration;
resolutions and orders of the Government of the Russian Federation;
resolutions, orders, orders, regulations, rules, instructions of federal executive authorities;
resolutions, orders, orders, regulations, rules, instructions of the executive authorities of the constituent entities of the Russian Federation.
By area of operation legal acts of management are divided into acts that are in force throughout the territory of the Russian Federation, the territory of a constituent entity of the Russian Federation, an administrative-territorial unit.
By the nature of the competence of the bodies issuing them, legal acts of management are divided into acts of general and sectoral and international sectoral management.
Acts of general administration are issued by public administration entities of general competence - the Government of the Russian Federation, governments (administrations) of the constituent entities of the Russian Federation.
Acts of branch management regulate social relations and resolve managerial issues in a particular branch of management. Such acts are issued by state administration entities with sectoral competence (in particular, ministries) and are mandatory for bodies, organizations and officials subordinate to them, as well as citizens entering into public relations in this area of public administration (for example, entering military service under a contract).
Intersectoral management acts are issued by state administration entities with intersectoral competence, which resolve issues of an intersectoral nature. These acts are binding on all executive authorities, organizations, officials, regardless of departmental subordination, as well as citizens.
The following requirements are imposed on legal acts of management.
1. The legal act of management must be issued in accordance with the legislation by the authorized body within its competence.
Thus, legal acts of the Government of the Russian Federation are issued on the basis of and in pursuance of federal laws, decrees and orders of the President of the Russian Federation.
Legal acts of federal executive authorities are issued on the basis of and in pursuance of federal laws, decrees and orders of the President of the Russian Federation, resolutions and orders of the Government of the Russian Federation, as well as on the initiative of federal executive authorities within their competence.
Structural subdivisions and territorial bodies of federal executive bodies are not entitled to issue regulatory legal acts. A normative legal act may be issued jointly by several federal executive bodies or by one of them in agreement with others.
2. A legal act must be issued in a certain order. The procedure for issuing management acts is established by legislative and other regulations regulating the status of executive authorities.
Thus, in particular, the Government of the Russian Federation, on the basis of and in pursuance of the Constitution, federal constitutional laws, federal laws, regulatory decrees of the President of the Russian Federation, issues resolutions and orders. Acts of a normative nature are issued in the form of resolutions of the Government of the Russian Federation. Acts on operational and other current issues that do not have a regulatory nature are issued in the form of orders of the Government of the Russian Federation. The procedure for issuing acts of the Government of the Russian Federation is established by the Government of the Russian Federation.
Regulatory legal acts of executive authorities are issued in the form of resolutions, orders, orders, rules, instructions and regulations (see Rules for the preparation of regulatory legal acts of federal executive authorities and their state registration, approved by Decree of the Government of the Russian Federation of August 13, 1997 No. 1009). The publication of normative legal acts in the form of letters and telegrams is not allowed. The draft regulatory legal act is subject to agreement with the concerned ministries and departments, if such approval is mandatory in accordance with the legislation of the Russian Federation, and also if the regulatory legal act contains provisions, norms and instructions relating to other ministries and departments. The approval of a normative legal act is formalized by visas. Visa includes i! himself the name of the position of the head of the ministry (department) or his deputy and the personal signature of the approver, the transcript of the signature and the date. Visas are affixed at the bottom of the reverse side of the last page of the original of the normative legal act.
The preparation of a draft normative legal act is entrusted to one or more structural divisions federal executive body, taking into account their functions and competence. At the same time, the circle of officials responsible for the preparation of the specified project, the period for its preparation, and, if necessary, the organizations involved in this work, are determined.
The legal service of the federal executive body participates in the preparation of a draft normative legal act. The term for preparing a draft and issuing a regulatory legal act in pursuance of federal laws, decrees and orders of the President of the Russian Federation, resolutions and orders of the Government of the Russian Federation, as a rule, should not exceed one month, unless another period is established. To prepare drafts of the most important and complex normative legal acts, as well as acts issued jointly by several federal executive bodies, working groups may be created.
In the process of working on a draft normative legal act, the legislation of the Russian Federation related to the topic of the project, agreements on the delimitation of subjects of jurisdiction and powers between bodies should be studied. state power of the Russian Federation and state authorities of the constituent entities of the Russian Federation, the practice of applying the relevant regulatory legal acts, scientific literature and materials of the periodical press on the issue under consideration, as well as data from sociological and other studies, if any.
3. The legal act of management is issued in the prescribed form and signed by the relevant official. The form of the act (structure, details, language) must comply with the accepted requirements.
Thus, the structure of a normative legal act should ensure the logical development of the topic legal regulation. If an explanation of the goals and motives for the adoption of a normative legal act is required, then the draft contains an introductory part - a preamble. Normative provisions are not included in the preamble. Regulatory instructions are drawn up in the form of paragraphs, which are numbered in Arabic numerals with a dot and do not have headings. Clauses may be subdivided into subclauses, which may be numbered alphabetically or numerically. Significant normative legal acts can be divided into chapters, which are numbered with Roman numerals and have headings.
If necessary, for the completeness of the presentation of the issue, the regulatory legal acts may reproduce certain provisions of the legislative acts of the Russian Federation, which must have references to these acts and to the official source of their publication. If tables, graphs, maps, diagrams are provided in a normative legal act, then, as a rule, they should be drawn up in the form of applications, and the relevant paragraphs of the act should have links to these applications.
Simultaneously with the development of a draft normative legal act, proposals should be prepared to amend and supplement or invalidate the relevant previously issued acts or parts thereof. Normative legal acts issued jointly or in agreement with other federal executive authorities are changed, supplemented or recognized as invalid in agreement with these federal executive authorities. Provisions on amendments, additions or invalidation of issued acts or their parts shall be included in the text of a normative legal act.
If, during the preparation of a normative legal act, the need to introduce significant changes and additions to previously issued normative legal acts or the existence of several acts on the same issue is revealed, then in order to streamline them, a new single act is developed. The draft of such an act includes new normative prescriptions, as well as those contained in previously issued acts, which remain in force.
Before signing (approving) the prepared draft normative legal act must be checked for compliance with the legislation of the Russian Federation, as well as the rules of the Russian language, and endorsed by the head legal service federal executive body.
Normative legal acts are signed (approved) by the head of the federal executive body or by a person acting in his capacity. The signed (approved) normative legal act must have the following details:
the name of the body (bodies) that issued the act;
name of the type of act and its name;
date of signing (approval) of the act and its number;
the name of the position and the surname of the person who signed the act.
4. Regulatory legal acts of management affecting the rights, freedoms and duties of a person and a citizen, establishing the legal status of organizations of an interdepartmental nature, regardless of their validity period, including acts containing information constituting a state secret or information of a confidential nature, are subject to state registration.
State registration of normative legal acts is carried out by the Ministry of Justice of Russia, which State Register normative legal acts of federal executive bodies.
State registration of a normative legal act includes:
legal examination of the compliance of this act with the legislation of the Russian Federation;
making a decision on the need for state registration of this act;
assignment of a registration number;
entry into the State Register of Normative Legal Acts of Federal Executive Bodies.
State registration of normative legal acts is carried out by the Ministry of Justice of Russia within 15 days from the date of receipt of the act. If necessary, the registration period may be extended, but not more than 10 days, and in exceptional cases - up to one month.
Within a day after the state registration, the original of the normative legal act with the registration number assigned to it is sent by the Ministry of Justice of Russia to the federal executive body that submitted the act for state registration.
The registration of a normative legal act may be refused if, during the legal examination, it is established that this act does not comply with the legislation of the Russian Federation. Regulatory legal acts, the state registration of which is refused, are returned by the Ministry of Justice of Russia to the body that issued them, indicating the reasons for the refusal.
Within 10 days from the date of receipt of a refusal in state registration, the head of the federal executive body or a person acting as such shall issue an appropriate document on the abolition of the regulatory legal act, the registration of which has been refused, and send a copy of it to the Ministry of Justice of Russia.
A normative legal act may be returned by the Ministry of Justice of Russia to a federal executive body without registration at the request of the federal executive body that submitted this act for state registration, and also if the established procedure for submitting an act for state registration is violated. If a normative legal act is returned without state registration in violation of the established procedure for submitting it for state registration, the violations must be eliminated, and the act must be re-submitted for state registration within a month, or a copy of the document on the abolition of the normative legal act must be sent to the Ministry of Justice of Russia.
5. Certain requirements are also established for the procedure for publishing regulatory legal acts of the administration (see Decree of the President of the Russian Federation of May 23, 1996 No. 763 "On the procedure for publishing and entry into force of acts of the President Russian Federation, the Government of the Russian Federation and normative legal acts of federal executive bodies"). Thus, decrees and orders of the President of the Russian Federation, decisions and orders of the Government of the Russian Federation are subject to mandatory official publication, except for acts or their individual provisions containing information constituting a state secret, or information confidential Acts of the President of the Russian Federation are subject to official publication within 10 days after the date of their signing Decrees of the Government of the Russian Federation, with the exception of resolutions containing information constituting a state secret or information of a confidential nature, are subject to official publication no later than 15 days from the date of their adoption.
The official publication of acts of the President of the Russian Federation and acts of the Government of the Russian Federation is considered to be the publication of their texts in " Russian newspaper" or in the "Collection of Legislation of the Russian Federation" or the first placement (publication) on the "Official Internet Portal of Legal Information" (pravo.gov.ru). The texts of acts of the President of the Russian Federation and acts of the Government of the Russian Federation distributed in in electronic format federal state unitary enterprise"Scientific and technical center of legal information "System"" Federal Service protection of the Russian Federation, as well as federal bodies of state protection. Acts of the President of the Russian Federation and acts of the Government of the Russian Federation may be published in other printed publications, as well as communicated to the public on television and radio, sent to state bodies, local governments, officials, enterprises, institutions, organizations, transmitted through communication channels.
Acts of the President of the Russian Federation that are of a normative nature shall enter into force simultaneously on the entire territory of the Russian Federation after seven days after the day of their first official publication. Other acts of the President of the Russian Federation, including acts containing information constituting a state secret or information of a confidential nature, come into force from the date of their signing.
Acts of the Government of the Russian Federation affecting the rights, freedoms and duties of a person and a citizen, establishing the legal status of federal executive bodies, as well as organizations, enter into force simultaneously throughout the territory of the Russian Federation after seven days after the day of their official publication. Other acts of the Government of the Russian Federation, including acts containing information constituting a state secret or information of a confidential nature, come into force from the date of their signing.
Acts of the President of the Russian Federation and acts of the Government of the Russian Federation may establish a different procedure for their entry into force.
Normative legal acts of federal executive bodies affecting the rights, freedoms and duties of a person and a citizen, establishing the legal status of organizations or having an interdepartmental nature, which have passed state registration with the Ministry of Justice of Russia, are subject to mandatory official publication, except for acts or their individual provisions containing information constituting state secret, or information of a confidential nature.
Normative legal acts of federal executive bodies are subject to official publication in Rossiyskaya Gazeta within 10 days after the date of their registration, as well as in the Bulletin of normative acts of federal executive bodies of the Yurydicheskaya Literatura publishing house of the Administration of the President of the Russian Federation. The said Bulletin is also official and is distributed in electronic form by the Federal State Unitary Enterprise "Scientific and Technical Center for Legal Information "System"" of the Federal Security Service of the Russian Federation, as well as by state security agencies.
Normative legal acts of federal executive bodies, except for acts and their individual provisions containing information constituting a state secret or information of a confidential nature that have not passed state registration, as well as registered but not published in the prescribed manner, do not entail legal consequences, as they do not entered into force, and cannot serve as a basis for regulating the relevant legal relations, imposing sanctions on citizens, officials and organizations for failure to comply with the instructions contained therein. These acts cannot be referred to in resolving disputes.
Normative legal acts of federal executive bodies shall enter into force simultaneously throughout the territory of the Russian Federation after 10 days after the day of their official publication, unless the acts themselves establish a different procedure for their entry into force.
Normative legal acts of federal executive bodies containing information constituting a state secret or information of a confidential nature and not subject to official publication in connection with this, which have undergone state registration with the Ministry of Justice of Russia, shall enter into force from the date of state registration and assignment of a number, if the acts themselves no later date for their entry into force.
To the number administrative and legal forms of public administration include and administrative contracts. In the theory of administrative law, the following features of an administrative contract are distinguished.
- 1. The conclusion of an administrative contract entails the emergence of legal relations between its subjects on the basis of voluntary consent and equality of the parties, which is the difference between an administrative contract and acts of management.
- 2. An administrative contract is concluded on the basis of the norms of administrative law, which regulate the procedure for its conclusion and termination (cancellation). Thus, the Government of the Russian Federation, in accordance with Art. 13 of the Law on the Government of the Russian Federation, by agreement with the executive authorities of the constituent entities of the Russian Federation, may transfer to them the exercise of part of their powers, if this does not contradict the Constitution, the Law on the Government of the Russian Federation and federal laws.
- 3. The content of the administrative-legal contract is management relations. The purpose of this agreement, in contrast, for example, from a civil law agreement, is the settlement of relations that develop in the field of public administration, relations of a managerial nature. In particular, art. 28 of the Charter of the Moscow Region dated 11.12.1996 No. 55 / 96-03 provides that the federal executive authorities and the executive authorities of the Moscow Region may, by mutual agreement, transfer to each other the exercise of part of their powers, if this does not contradict the Constitution and federal laws.
- 4. One of the parties to the administrative contract is the executive authority, which is the subject of public administration. Without his involvement this agreement cannot be concluded.
In this way, administrative contract - this is an agreement based on the norms of administrative law, at least one of the participants of which is a subject of public administration, concluded in order to regulate relations that develop in the field of public administration, in relation to a managerial nature.
In the literature on administrative law, the main classification criterion administrative contracts is subject of the contract. According to the subject of the contract, the following types of contracts are distinguished: contracts on competence, contracts on cooperation, contracts on the entry of citizens into the state (military) service. Agreements on competence, in particular, include agreements between federal executive authorities and executive authorities of the constituent entities of the Russian Federation on the delimitation of competence, as well as on the delegation of powers. Cooperation agreements define various areas of management activity, in particular, the exchange of information, holding joint events, and a number of others.
- See Regulations of the Government of the Russian Federation, approved by Decree of the Government of the Russian Federation of 01.06.2004 No. 260.
- See: Administrative law: textbook / ed. L. L. Popova. M., 2005. S. 275-279.
Foreword
Stock lectures can be used by students of legal specialties when studying the discipline " Administrative law ».
The purpose of studying the discipline "Administrative Law" is the formation and development professional culture students, improving the creative qualities of a future lawyer, acquiring the practical skills necessary for their professional activities.
When studying the discipline, the following tasks are solved:
Ensuring the assimilation by students of concepts, categories and institutions of public administration;
Formation of students' ideas about administrative and legal norms and relations; subjects of administrative law; administrative coercion and administrative responsibility; the basics of the administrative-legal organization of economic management, socio-cultural and administrative-political spheres;
Developing students' skills to use normative legal acts that regulate relations that form the subject of administrative law.
The study of the discipline involves a logical combination of lectures and seminars, as well as independent work students over educational material.
These lectures are written taking into account changes in the field of legislation and jurisprudence, and are recommended for use in the preparation and conduct of practical classes, in the performance of independent and control work, in preparation for the exam on the course.
Management, public administration, executive power
Questions to the topic:
1. Concept, content and types of management. Social management.
2. The concept, features and types of public administration. Correlation between the concepts of executive power and public administration.
3. Features of the executive power. Executive and administrative activities.
The concept, content and types of management. Social management.
Management is purposeful and constant process of influence of the subject of management on the object of management. Various phenomena and processes act as an object of control: a person, a team, a social community, mechanisms, technological processes, apparatuses. Management as a process of the influence of the subject on the object of management is unthinkable without a management system, which, as a rule, is understood as a mechanism that provides the management process, i.e., a set of interrelated elements that function in a coordinated and purposeful manner. The elements participating in the management process are combined into a system using information links, more specifically, according to the feedback principle.
"Manage" means "direct, lead"(to take care of something, to do something on behalf of, to execute and dispose). In the 60s. 20th century a new scientific direction was formed - cybernetics, the subject of which was the management processes in various areas. Using the mathematical apparatus, mathematical logic and function theory, it was possible to combine the most important achievements of the theory automatic regulation, computer science and many other areas of scientific knowledge. This science studies the issues of management, communication, control, regulation, reception, storage and processing of information in any complex dynamic systems. In this case, management is considered high level abstraction, and special importance is attached to management procedures, its principles, patterns and relationships of numerous elements that form a single system.
The concept of "system", revealing the essence of management, is characterized by the presence of the following features: tasks and goals; subjects and objects of management; functions; organizational structure; unity, independence and interdependence of the elements of the system; certain forms and methods of activity.
Governed by in the most general sense, one can understand the purposeful influence of the subject of management on the objects of management in order to create an efficiently functioning system based on information links and relations. A very precise definition of management was given by G.V. created bodies and structures (state bodies, political parties, public associations, enterprises, societies, unions, etc.).
It should be noted that the essence of management has remained unchanged for many decades.
Defining the concept of "management", the classic of management A. Fayol names the following six functions (operations):
1) technical (production, dressing and processing);
2) commercial (purchase, sale and exchange);
3) financial (raising funds and managing them);
4) insurance (insurance and protection of property and persons);
5) accounting (accounting, costing, accounting, statistics, etc.);
6) administrative (foresight, organization, command, coordination and control).
Revealing the meaning of the administrative operation, the scientist explains:
- “To manage means to foresee, organize, dispose, coordinate and control;
Foresee, that is, take into account the future and develop a program of action;
To organize, that is, to build a double - material and social - organism of the enterprise;
Dispose, i.e., force the staff to work properly;
Coordinate, i.e. link, unite, harmonize all actions and all efforts;
To control, that is, to take care that everything is done according to the established rules and given orders.
The literature deals with several types of systems: technical systems(energy system, information and computing network, technological process, etc.); socio-economic systems (industries, individual enterprises, service sector, etc.); organizational systems, the main element of which is the person himself. As a rule, most members of society are members of one or more organizations, that is, organizational relations are a characteristic feature of human existence.
People enter the organization to solve problems through management processes. An organization is a conscious association of people, characterized by the principles of systemicity, reasonable organization, structuredness and pursuing the achievement of certain social goals and the solution of socially significant tasks. Every organization has the management processes necessary to achieve its goals and objectives.
Any management process is characterized by the following characteristic features:
1) the need to create and operate a complete system;
2) purposeful impact on the system, the result of which is the achievement of orderliness of relations and connections capable of fulfilling the tasks set;
3) the presence of the subject and object of management as direct participants in management;
4) information as the main link between management participants;
5) the presence of a hierarchy in the management structure (elements, subsystems, industries, areas);
6) the use of various forms of subordination of the control object to the control subject, within which various methods, forms, methods, means and techniques of management.
Traditionally, the following types of management are distinguished:
1) mechanical, technical management(management of equipment, machines, technological processes);
2) biological management (management of vital processes of living organisms);
3) social management (management social processes, people and organizations).
Each of these types of management is distinguished by its purpose, qualitative originality, specific features, and the intensity of its actions. managerial functions and operations.
social management
Under social management understands management in the sphere of human, social activities; management of social relations, processes in society, the behavior of people and their teams, organizations in which people carry out labor or service activities. Joint social activities of people are carried out in various areas, for example, in the process of production and consumption wealth, in the socio-political, ideological, ethical, cultural, family spheres. The processes taking place in these areas, sometimes distinguished by their particular complexity and importance, require guidance, i.e., bringing relations into a complete system, creating order in social relations. In each sphere, which has a qualitative originality, only special systems of managerial organization are acceptable.
Thus, the managerial beginning is obligatory, in particular, for social system, in which two control participants are distinguished - the subject and the object with direct and feedback links between them.
The essence of social management is revealed in the process of analyzing its following characteristics:
1) management - the process of conscious-volitional influence of a particular subject of management on the corresponding objects;
2) management - an activity built on specific principles for the implementation of management actions, the achievement of certain management goals and the solution of administrative tasks;
3) management is a functional socio-legal phenomenon, i.e. public administration is characterized by a multitude of administrative functions carried out;
4) management is organized and carried out by specially trained subjects of management, for whom management is a profession, professional activity;
5) management is a management process, a system of administrative procedures that have a specific legal content;
6) management is carried out either to achieve general management tasks , or to solve managerial affairs in specific areas of social or public life (management of internal affairs, management in the field of foreign affairs, protection public order, finance management, justice management, management building complex countries);
7) management can be considered as a specific closed organizational system built on certain legal grounds; i.e. it is a separate organization that has specific management goals and objectives, organizational structure, powers and structure, interacts with other organizations.
The content of social management is the streamlining of social relations, the regulation of the organization and functioning of the social order and public associations, providing conditions for the harmonious development of the individual, observance and protection of the rights and freedoms of man and citizen. In all these cases, social-volitional connections, human behavior and actions become the object of control. However, a person is also a subject of social control, which is carried out by him in relation to other people. In each case, the subject of social management are both individuals and organizations: state, public, international.
Social management includes the concept social management activities, which is broader than the term "management". Management activity presupposes the presence of a practical element in the implementation of management, that is, it is characterized by the direct implementation of the functions of social management - the implementation of norms, rules, organization, leadership, coordination, accounting and control.
Creation organizational structure social management is a necessary but not sufficient condition for achieving the goals and objectives of management. The reality of management is provided by such qualities as organization, responsibility, subordination, strength, will. Taken together, they form a new quality - control dominance, i.e., empowering the subject of management activity with the necessary powers for the successful implementation of the management functions assigned to him.
Thus, management is inseparable from the concepts of "power", "state power". The power of management determines the emergence of organizational ties that ensure the subordination of the participants in joint social activities to the desire of the subject of management, his "dominant" will. Power is a necessary means of regulating social processes; it forms a single organizational and governing will that meets the public interests and ensures the creation of a social order, democratic foundations for the life of society.
The power of social control includes such social phenomenon like an authority. Social management should ensure the interaction of two factors: on the one hand, the power and authority of the subject of management and management (in the broad sense, the authority of the state), and on the other hand, the voluntary fulfillment by people and their organizations of social norms, conscious submission to the subject of power and management, and as well as his instructions. The balance of these phenomena creates required quality social management activities.
Social management is characterized by the fact that it:
1) arises in connection with the need to organize and regulate the activities of people and their organizations, as well as to establish standards for their behavior and actions;
2) is aimed at achieving the goals and objectives of management, which are to satisfy public interests through the implementation joint activities of people;
3) uses the available powers and functions;
4) is carried out on the basis of subordination of participants in management activities to a single control will of the subject of management (person, team, organization).
Social management includes several species, differing in goals, objectives, functions, subjects and their powers, as well as management procedures:
1) public administration (management in the field of organization and functioning of the state, state executive power);
2)local government (municipal government, local self-government, communal self-government);
3) public administration (management in public associations and not commercial organizations);
4) commercial management (management in commercial organizations created for the purpose of making a profit and distributing the profit received among their participants).
Question 1
The concept of "administration" comes from the Latin word "management".
Management - actions of an administrative nature, aimed at the functioning of complexly organized systems, designed to ensure their safety, maintain the mode of activity.
Allocate the object, subject and content of management.
The object of control is various systems and their components (people, phenomena, events, etc.).
The subjects of management are always people. There are two groups of control subjects:
1) sole proprietors;
2) collegiate (groups of people). The content of management is the legal relationship that arises in the course of management activities, including the impact on objects by coordinating, directing various actions, processes by the subject of management through the application of appropriate methods and mechanisms.
There are three types of management: technical, biological, social:
1) technical - management of objects based on technical rules(physical, mathematical), for example, control of machine tools, complex machines, etc.;
2) biological - management of biological processes, taking into account the laws of nature, the patterns of development of certain organisms (poultry farming, breeding, animal husbandry, etc.);
3) social - management of people. In this case, both groups of people (work collective, students, etc.) and individuals can act as the object of control. The most complex in its structure is the management of the state, which in a broad sense is an association of groups of people (labor collectives, public associations, nations, etc.). It is social management that is the main component in the content of management as a whole. The features of social management are:
a) an object is always a person or a group of people;
b) relations arising in the course of social management are of an organized, legal nature;
c) social management has a power-volitional character, i.e., it is carried out on the basis of the priority of the will of the subjects of management, securing special rights for them;
d) a special subject of management - authorities or other authorized person.
Control types:
- state;
- collective - regulation at the level of the team;
- family.
Public administration is a type of social administration, the functioning of which is associated with the formation of a special branch of law - administrative law. The main sphere of application of the norms of administrative law is precisely public administration.
Public administration is the organizing influence of the entire state apparatus on an extremely wide range of social relations by all means available to the state.
There are also subspecies of social management:
1) family social - carried out within the family;
2) public social - management of separate organized groups of people ( political parties, religious organizations etc.);
3) municipal - management on local level;
4) state social.
Social management is a type of management, the process of influencing society, social groups, individual individuals in order to streamline their activities, increase the level of organization of the social system. General features of social management: exists where there is a joint activity of people and their communities; provides an orderly impact on the participants in joint activities; aimed at achieving a specific management goal; characterized by the presence of a subject and an object of control; the subject of management is endowed with a certain power resource; the object of control is a subservient subject, whose conscious-volitional behavior must change in accordance with the instructions of the subject; implemented within a certain mechanism. Types of social management: public administration, local (municipal) self-government, public self-government. Elements of social management: the subject of management, the object of management, managerial links (direct links and feedbacks). The subject of management can be individual or collective. Such objects of management as a person (individual), collectives (social groups), the state (society as a whole) are singled out. Direct connections - purposeful organizing influence of the subject of management on the managed object. Feedback- a channel of information impact of the control object on the control subject in order to inform about the fulfillment of the management tasks assigned to it. Management cycle - a set of interrelated, logically determined management stages, characterized by certain tasks, composition of participants. Stages of the management process: analysis of the management situation; development and decision-making; organization and execution of the decision; decision implementation control; summarizing, making adjustments.
Public administration (. public administration) - the activities of public authorities and their officials in the practical implementation of the political course developed on the basis of relevant procedures (public policy). Activities in public administration are traditionally opposed, on the one hand, to political activities, and on the other hand, to activities to formulate a political course.
In the theory of public administration, there are three main approaches to formulating the basic principles of public administration:
- legal approach;
- political approach;
- managerial approach.
According to the legal approach, the key values of public administration are the values of the rule of law, the protection of the rights of citizens. A civil servant is subordinate not so much to his leadership as to the requirements of the rule of law and the Constitution.
According to the political approach, the main task of public administration is the best possible embodiment of the will of the people. Civil servants must be politically responsible (accountable), receptive to current interests citizens. In order to realize this, it is sometimes proposed to implement the concept of "representative bureaucracy", in which the executive authorities should be a miniature social model of society. It is assumed that in this situation it will be easier for the departments to take into account the interests existing in society, and the opportunities for discrimination of certain groups will be reduced.
According to the managerial approach, the main values of public administration should be efficiency, economy and efficiency, formulated, if possible, in a quantifiable (measurable) form. The main problem posed in this approach is how to provide the desired result at the lowest cost or, alternatively, how to get the maximum result at a given cost. characteristic feature this approach is the use of the concept of "public management" (public management) as a synonym for the concept of "public administration".
Common to all three approaches is the problem of compliance of the actions of civil servants with the principles formulated in advance:
- adherence to the principle of the rule of law (legal approach);
- following the will of the people (political approach);
- following the goal of obtaining the desired socio-economic result (manager approach).
The assessment of the extent to which this problem is solved is called the quality of public administration. Each approach uses as the main different indicators of the quality of public administration.
To understand the essence of executive power, bodies and subjects of executive power, it is methodologically important to resolve the issue of the relationship between state administration and executive power.
As early as paragraph 13 of the Declaration "On State Sovereignty of the RSFSR" dated June 12, 1990. The separation of legislative, executive and judicial powers was proclaimed as the most important principle of the functioning of Russia as a constitutional state.
After the adoption of the Constitution in 1993. the concept of "executive power" became legislatively fixed. This was followed by the almost automatic withdrawal from the normative practice of the terms "management", "public administration", "government body". As a result, all government bodies ( different levels) became known as executive authorities. In fact, there was a mechanical replacement in the legislative terminology, which violated the continuity in the name of state bodies and complicated the activities of the state apparatus.
But the Constitution of the Russian Federation and the current legislation of the Russian Federation did not offer a synonym for public administration. They say nothing, for example, about executive activity; the subjects of this activity are obvious, but its nature is not defined. Meanwhile, the system of separation of powers proceeds from the fact that each branch of the unified state power is realized in the activities of their subjects. Therefore, public administration, according to its purpose, is nothing more than a type of state activity, within the framework of which the executive power is practically implemented.
Consequently, public administration is practically carried out within the framework of the system of state power, based on the principles of separation of powers. Executive power as a manifestation of the unified state power acquires a real character in the activities of special units of the state apparatus, currently referred to as executive bodies, but in essence are state administration bodies. In a similar sense, public administration, understood as an executive and administrative activity, is not opposed to the implementation of executive power, understood as the activity of the subjects of this branch of government.
In the science of administrative law, by now, there has been a stable position that the concept of "public administration" is broader than the executive branch.
The latter, in a certain sense, is derived from state administration. It is designed to determine the scope and nature of the state-authority powers, implemented in the process of state-administrative activity. On the other hand, public administration is the type of activity that is aimed at the practical implementation of executive power. Executive power essentially constitutes the content of public administration activities, expressing primarily its functional (executive) orientation. Accordingly, all subjects of executive power are simultaneously links in the public administration system.
The sphere of public administration is a concept, the boundaries of which are in modern conditions determined not only practical activities for the implementation of executive power, i.e. the actual work of the subjects of this branch of government, but also all other manifestations of state-administrative activity (for example, the activities of managerial units in their nature that are not direct subjects of executive power).
State-administrative activity is the functioning of the subjects of executive power and other levels of state administration in the implementation of their tasks and functions.
Bodies of state administration - executive authorities and other units that carry out state-administrative activities in one volume or another.
Executive bodies - all subjects of public administration, including subjects of executive power, as well as government bodies operating outside
practical implementation executive power (for example, executive bodies of the local self-government system, management bodies for the life of enterprises, institutions, public associations, commercial structures).
So far, the legislation of the Russian Federation has not yet fully developed a unified terminology regarding the executive branch.
Thus, the current legislation of the Russian Federation, along with the widespread use of the term "executive authorities", often contains references to "executive authorities", "state governing bodies", "executive bodies of state power", etc.
As already mentioned, most scientists rightly point out that government bodies can be considered executive authorities. “Because the Constitution of the Russian Federation did not find a place for the terms “public administration” or “public administration bodies”, practical public administration did not cease to be constantly and continuously carried out through the formation and empowerment of special executive bodies of state power with the appropriate competence.
Quite a lot of scientific publications are devoted to the problem of the legal nature of the executive branch (see, for example, the works of I.L. Bachilo, A.F. Nozdrachev, Yu.N. Starilov, Yu.A. Tikhomirov, etc.), some of them have already been mentioned in this work. The authors also pay attention to the relationship between the concepts of "executive power" and "public administration".
It is noteworthy that immediately after the adoption of the Constitution of the Russian Federation in 1993, the terms "public administration" and "public administration bodies" practically ceased to be used both in legislation and in specialized literature.
Some scholars, but they are a minority, believe that "the term "public administration" will gradually disappear from the lexicon Russian law". Most scholars consider it unreasonable
exclude them from circulation, since the system of public administration in practice as a concept is broader than the concept of "executive power". We should agree with the opinion of Yu.N. Starilov, who believes that "public administration as a type of state activity, only because of its constant practical existence, will never lose its significance and will not change its name."
One can fully agree with the opinion of Professor I.Sh. Kilyashkhanov, who states that “if we talk about public administration, understood as the activities of bodies representing all the “branches” of state power, then the ratio of these concepts can be represented as a ratio of the categories “general” and “private”. In this case, public administration is perceived as more general concept. After analyzing the relationship between the concept of executive power and public administration, we can come to the conclusion that one should not automatically replace one term with another. Governmental activity has always been necessary, and remains as such today. Over time, there are changes in the forms and methods of this activity, which are determined by the conditions of social development in a particular period of development of the state, especially during the period of reforms. From the point of view of administrative law, the concept of "public administration" is broader than the concept of " state regulation". From another point of view, considering state regulation as the main method of management in the economy, state regulation is used more widely than direct state management, while indirect means of control (taxes, benefits, etc.) are used to a large extent.
The subject of administrative law is a system of social relations regulated by administrative and legal norms. The subject of administrative law includes five constituent parts.
Firstly, these are social relations that arise in the process of exercising executive power, exercising public administration at all its hierarchical levels: from the President of the Russian Federation to the administration of state enterprises, institutions and organizations. Here it means first of all external activity executive authorities, the entire system of government bodies, for the implementation of which they were actually created, namely, the organization of the economy, socio-cultural and administrative-political activities.
Secondly, these are intra-organizational relations of all state bodies, which are basically the same, similar, of the same type, regardless of where they are carried out: in executive, legislative or judicial bodies. These relationships cover information and analytical work, office work, hiring, promotion, dismissal, disciplinary responsibility, promotion, logistics, etc. All this activity is of an auxiliary, security nature and is regulated by the norms of administrative law.
Thirdly, the subject of administrative law is the functioning of nation-wide control, which is carried out throughout the territory of the Russian Federation on behalf of the state, being endowed with state-power powers of a federal nature. At the same time, control is exercised in relation to all state bodies, not only in terms of the legality of the acts adopted and the actions taken, but also their expediency, which is fundamentally different from the general supervision of the prosecutor's office. The measures taken by the national control are of a disciplinary nature, including the removal of violators from work (positions) and a monetary charge. Previously, this type of control had various names - the Workers' and Peasants' Inspection, the Ministry of Control, party-state control, people's control. In recent years, it has been abolished. However, the state need for this kind of control is obvious and is beginning to be recreated in the form Control Department Administration of the President of the Russian Federation.
Fourthly, the subject of administrative law also covers the activities of courts and judges in considering cases of administrative offenses. The fact is that, being a body of justice, they are nonetheless guided by the norms of the Code of Administrative Offenses of the Russian Federation, which cannot be excluded from the subject of administrative law. It is possible that this sphere of activity of courts and judges will eventually turn into administrative justice, the courts will be called administrative, and the judges of the peace, who single-handedly consider a significant category of cases of administrative offenses.
Fifthly, the subject of administrative law may include public relations that arise in the activities of public associations to which the state has transferred some of its state powers. For example, the people's squads were given some of the powers of state law enforcement in the field of public order, and people's guards can detain violators, draw up protocols (acts) on offenses. Naturally, such activities of public associations are regulated by the norms of administrative law.
Administrative law regulates relations in the field of organization and functioning of public administration, i.e. carried out on behalf of society, the state.
Management, according to the generally recognized definition included in encyclopedic dictionaries, is: a function of complex organized systems of any nature (technical, biological, environmental, social), ensuring the preservation of their structure ( internal organization), maintaining a mode of operation aimed at the implementation of their program goals.
Objects of social management
a) Things (managing things)
b) Phenomena and processes (process management)
c) People (people management)
The subject of social management a person acts (operator, manager, manager, etc.) or a collective entity - administration (directorate, leadership, command, etc.).
social management- this is the management of numerous and diverse social processes occurring in human communities (societies): tribe, clan, family, various kinds of public associations of people, and finally, in the state as the widest and most complex stable human community.
The process of social management speaks power. Regarding the Constitution of the Russian Federation, in the system of managing all the affairs of society and the state, there are three main types of social management associated with administrative and legal regulation:
a) public
b) municipal
c) state
The main sphere of action and application of the norms of administrative law is public administration, realizing the prerogatives of the state by its bodies and officials in the general system of social administration.
In a broad sense public administration is understood as the activity of any state bodies of all branches of state power, since the common goal and content of the activity of both the entire state as a whole and any of its bodies is any organization, a certain ordering of social relations.
In the narrow, in the organizational and legal sense, public administration is understood only as one specific kind state activities related to the implementation of executive state power as one of the branches of state power, carried out by a system of special state executive bodies or state administration bodies. Public administration in a narrow organizational and legal sense is the main object of administrative and legal regulation and the scope of the norms of administrative law.
Types of social management:
1. Public administration, i.e. administration relating to the affairs of the state, is carried out by state executive bodies and civil servants.
2. Local self-government - carried out by bodies municipalities and municipal employees.
3. public administration- Intraorganizational management of the affairs of public associations, including cooperatives.
4. Non-state management of private organizations ( joint-stock companies, companies, concerns, holdings, etc.).
In order to organize the very system of these bodies and ensure the legal regimes of their work, i.e., to conduct positive management activities for solving state problems and implementing regulatory legal acts (taking actions to organize the activities of the executive bodies of state power themselves, improve the institution of public service, develop and adoption of normative legal acts);
Public administration is regulated by public (administrative) law, while certain public administration issues are subject to private law (civil law) regulation. Therefore, one should distinguish between sovereign state administration and administration carried out in private law forms. These types of management are characterized by different legal forms. If public administration is carried out in the form of public law, then they talk about sovereign (public) administration, implemented by the state itself (its bodies, civil servants) or on its behalf; if management activity is established by private law, then here we are talking about private law management.
Sovereign administration is a “coercive” administration (law enforcement, attacking, “attacking”, restricting the rights of subjects of law, tough), i.e., applying measures of administrative coercion. In this case, control and supervisory bodies and officials apply measures of an interim, preventive, preventive, punitive and restorative nature. Here it is possible to temporarily restrict the exercise of the rights and freedoms of citizens, the right to dispose of objects of property of individuals and legal entities. Coercive control is carried out mainly by police and other regulatory bodies, whose tasks include ensuring public order, preventing offenses, and protecting society from dangers. The main principle of "coercive" management is legality.
In the domestic administrative and legal literature of the last decades, the problems of “private law” management are not touched upon. This type of management takes place in cases where the state itself does not act as a sovereign participant in legal relations. Therefore, it presupposes the equality of the state as a participant in private law relations, that is, it participates in the general competitive economic life, receives financial income, increases its fortune or sells it, while performing appropriate actions. The activities carried out in private law forms are aimed at achieving state-administrative goals and solving state-legal tasks through participation in economic life.
The private area of public administration covers the material (economic) needs of management, that is, when the state acts as a private entrepreneur and concludes various agreements. These include, for example, sales contracts, which are intended to ensure the management of materials necessary for management activities (formation and provision of management personnel, purchase of materials, equipment, stationery, land for the construction of an office building), contract agreements with road construction companies, leasing agreements and contracts for service maintenance, employment contracts with employees and workers in the public service. The state participates in these agreements not only as a customer and consumer, but also as an entity wishing to receive economic (financial) profit as an independent entrepreneur on an equal footing with other entrepreneurs.
Management, in the process of implementation of which private law means and mechanisms are used, can also be carried out as economic activity public authorities to ensure the “normal” existence of society (for example, state provision of electricity, gas, water, heat; organization by cities, towns and other administrative-territorial units of garbage collection, cleaning Wastewater, elimination of harmful substances, etc.). Such management, which can be called creative, “positive”, is a necessary attribute of a modern welfare state. "Positive" management is the concern of the state for the normal existence of people; this is the management of education, and social construction (construction of housing on favorable terms for certain categories of the population), and management in the field of healthcare, the economy, transport, electricity, water supply, etc. This form of management organization is common in many countries, and it is allowed only in certain cases. Where there is no clear legal regulation by the state, positive management can be carried out by private enterprises.
Management from the point of view of its organization is basically the same in all areas, however, one should distinguish between general management and special (special) management. General management is intended for any type of management activity and is implemented by the same mechanisms, forms and methods, regardless of industries and areas of management activity. Special management extends to specific areas and areas - finance, construction, agriculture, mining, domestic and foreign affairs, etc.
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