The concept of the system and the main categories of municipal law. Municipal law of Russia
Municipal law as a branch of law, as a scientific discipline has its own system, the basis of which is the structure of the branch of law that it studies.
The system of scientific discipline of municipal law includes the following sections:
1. Introduction to municipal law, revealing the concept of municipal law as a branch of law and scientific discipline, its subject and sources, historical and theoretical foundations of local self-government.
2. Local self-government in the system of democracy, including: the concept, system, basic principles, functions of local self-government, forms of direct democracy, local self-government bodies, associations and unions of municipalities.
3. Fundamentals of local self-government, including: the basics of local self-government (legal, territorial, organizational, financial and economic basis of local self-government).
4. Issues of local importance and the powers of local governments to address issues of local importance, including: the concept, structure and forms of implementation of the powers of local governments, as well as the specific powers of local governments in various spheres of life of the population.
5. Guarantees of local self-government, including: the concept and system of guarantees of local self-government; guarantees that ensure the organizational, financial and economic independence of local self-government; judicial and legal forms of protection of local self-government.
6. Responsibility of bodies and officials of local self-government. This section analyzes: the concept and types of responsibility of bodies and officials of local self-government; responsibility to the population of the municipality, the state, individuals and legal entities; control over the activities of bodies and officials of local self-government.
under municipal law system refers to the association of municipal legal norms into municipal legal institutions arranged in a certain sequence depending on their significance and role in the regulation of municipal relations.
municipal law system
The system of municipal law covers its structure, division into constituent elements, institutions and their integral connection. In the system of municipal law, municipal legal norms and norms of other branches of law are separated. The norms of civil, land, administrative, financial law, other norms are included in the system of municipal law in the part in which they are aimed at regulating municipal relations, i.e. functionally. At the same time, they initially reside in the system of their branches of law. Actually municipal legal norms are divided into general and special parts. The general part is a set of norms that apply to all components of a given industry. A special part is a set of norms governing certain groups of municipal relations.
The general part consists of constitutional norms, the norms of the Federal Law on the general principles of organizing local self-government, those that fix the appointment of local self-government in society, the goals, principles, guarantees of local self-government, definitive norms of industry-wide significance (municipal formation, local self-government bodies, etc. ).
A special part is the norms, divided into two blocks. The first unites the norms aimed at regulating public-power relations, the second - the norms aimed at regulating relations on the participation of citizens in the implementation of local self-government on a voluntary basis. The first block includes the following institutions: territorial organization of local self-government; the status and procedure for the activities of bodies, officials of local self-government; direct implementation by citizens of local self-government, municipal government. The second block includes the institution of public territorial self-government.
Sub-institutions (sub-institutes) are allocated in the named institutes. Thus, the institution of the status and procedure for the activities of bodies, officials of local self-government is divided into norms that determine the status and procedure for the activities of representative, executive, control bodies of local self-government, heads of municipalities, municipal election commissions. With further fragmentation, groups of norms on the status of deputies, officials of representative bodies of local self-government, officials of other bodies, the status and procedure for the adoption of municipal legal acts, etc. are isolated. The institution of direct implementation by citizens of local self-government includes the institution of municipal elections, local referendums, law-making initiatives. In the institute of public territorial self-government, norms are distinguished that determine the status and procedure for the activities of individual bodies of territorial public self-government, the procedure for consultative voting, etc.
There are other views on the system of municipal law<*>. So, S.D. Knyazev and E.N. Khrustalev, the general part of municipal law includes norms that are in force throughout the territory of the Russian Federation and determine the initial principles of the organization of local self-government in all municipalities. A special part is the norms in force on the territory of individual subjects of the Federation<**>. E.S. Shugrina refers to the general part the institutions of the legal, territorial, organizational, financial and economic foundations of local self-government, the responsibility of local self-government bodies, guarantees of local self-government, to the special part - the norms governing the powers of local self-government bodies and their officials to manage the municipal economy, socially -cultural sphere, in the field of law and order, etc.<***>
Ministry of Transport of the Russian Federation
Federal Agency of Sea and River Transport
Moscow State Academy of Water Transport
Law Institute
Specialty 030501
"Jurisprudence"
COURSE WORK
By discipline municipal law
Topic: "The system of municipal law in the Russian Federation."
Performed:
2nd year student,
group Yu-2
Kozlova Yu. Yu.
Scientific adviser:
Yankov V. G.
Moscow, 2007
INTRODUCTION 3
1. Components of the system of municipal law 5
1.1 Principles of municipal law 5
1.2 Municipal legal institutions 6
1.3 Municipal law 7
1.3.1 Features of municipal legal norms 7
1.3.2 Classification of municipal legal norms 8
1.3.3 Division of norms by subjects of lawmaking 9
2. General, Special and Special parts of the municipal system
3. The position of municipal law in the Russian system of law: features and significance 18
CONCLUSION 20
List of sources used 22
List of used literature 23
INTRODUCTION
The term "municipal law" for the first time in Russian legislation is used in Art. 7 of the Federal Law "On the General Principles of the Organization of Local Self-Government in the Russian Federation" dated August 28, 1995
Municipal law is a complex branch of law, which is a set of legal norms governing homogeneous social relations that arise in the process of organizing and operating local self-government, in the process of exercising the right to local self-government by the population directly, as well as through local self-government bodies.
Municipal law has a close relationship with all other branches of law, but at the same time it has its own specific features, determined by the subject of regulation and the method of influence at the local government level. Constitutional law determines the principles of activity of all other branches of law, including municipal law. In essence, constitutional law determines the independence of local self-government and its legal foundations. The close connection of municipal law with administrative law is determined by the fact that managerial relations in the field of activity of local governments are an object of administrative law in accordance with Art. 132 of the Constitution of Russia, if local governments are endowed by law with separate state powers. There is also a connection with civil, labor, tax, financial, customs, forestry, water, criminal and other branches of law, since local governments, their officials and citizens of the municipality, in the exercise of their rights, freedoms and legitimate interests, enter into relations regulated and protected by the norms of these industries.
municipal law system includes the basic concepts, categories and principles of the science of municipal law; theoretical and methodological foundations of municipal law; bases of legal regulation of local self-government, their legal relationship with public authorities; legal regulation of the financial and economic basis of local self-government; organizational and legal foundations of local self-government; the specifics of the activities of local self-government in cities and rural settlements.
The purpose of the municipal law system is to unite those that are uniform in their legal nature into a structurally ordered integral unity that has relative independence, stability, autonomy of functioning and interaction with the external environment.
The purpose of this work is to consider and disclose the system of municipal law, as well as to understand the features of the system of municipal law.
Given the above goals, it seems necessary to us, firstly, to reveal the constituent elements of the municipal law system. Secondly, to characterize the General, Special and Special parts of the system of municipal law. And, finally, I will consider the position of municipal law in the Russian system of law, revealing its features and significance.
1. Components of the system of municipal law.
The branch of municipal law has a systemic character. The components of this system are: principles, institutions and norms of municipal law.
1.1 Principles of municipal law
Industry principles how the basic principles of municipal law play a paramount role. They are:
1) set the general parameters of local self-government, providing the necessary measure of its unity on the scale of the Russian Federation;
2) given the federal nature of the Russian state, they constitute the freedom to choose specific models of municipal government, depending on national, historical and other features;
3) determine the nature of the relationship between the state and local self-government;
4) form a system of norms of municipal law and organize them into a single branch.
In municipal law, one can distinguish Russian Federation:
¬ organizational and functional independence of local self-government (art. 12);
¬ judicial protection of the rights of local self-government (art. 133);
¬ the responsibility of municipal authorities to the state, subject to compensation for their material and financial costs (part 2, article 132);
¬ The immediate right of the population to resolve issues of local importance (Article 130).
The system of constitutional principles is supplemented and developed by the principles expressed in the Law of 2003:
The need to organize local self-government throughout the Russian Federation, in urban, rural settlements, urban districts and municipal districts (Article 10);
Independent determination by municipalities of the structure and status of their bodies (parts 1, 2, article 34);
The inadmissibility of the formation of local self-government bodies and the appointment of local self-government officials by state authorities and state officials, except as otherwise established by law (part 4 of article 34);
Accountability and responsibility of bodies and officials of local self-government, deputies to the population (part 4 of article 36, part 8 of article 44);
Assistance of state and municipal bodies to the population in the implementation of local self-government (part 2 of article 33);
Mandatory execution of decisions taken by direct expression of the will of citizens, municipal bodies, officials
persons within the limits of their authority (parts 6, 7 of article 22, part 7 of article 24, part 4 of article 29);
The impossibility of direct cancellation of normative, individual decisions of municipal bodies by public authorities, except in cases established by law (Article 48).
1.2 Municipal legal institutions
Legal institutions, united in the branch of municipal law, are a group of norms that regulate homogeneous social relations related to various aspects of local self-government. Municipal legal institutions are quite diverse. This circumstance only emphasizes the complexity and diversity of local self-government relations.
Among the municipal - legal institutions include:
Fundamentals of local self-government, within which sub-institutions can be distinguished - the legal, territorial, economic, financial foundations of local self-government;
Forms of local self-government, in which sub-institutions are distinguished - forms of direct expression of the will of citizens (local referendum, municipal elections, meetings (gatherings) of citizens, etc.), local self-government bodies, subdivided into representative bodies, heads of municipalities, other bodies and officials created in accordance with the charter of the municipality;
Subjects of jurisdiction and powers of local self-government, which are subdivided into their own powers, i.e. issues of local importance, and on certain state powers that are vested in local governments;
1.3 Municipal law
The norms of municipal law represent a set of norms emanating from the local community, local governments or their officials, and norms adopted by public authorities or their officials.
1.3.1 Features of municipal legal norms
Along with the common features inherent in all legal norms, municipal legal norms have their own characteristics.
Firstly, they are formed, on the one hand, from the norms established by state bodies as a result of their law-making activities at the federal and regional levels, and on the other hand, from generally binding areas of activity established by the local governments themselves, which are not included in the system of state bodies. , as a result of their rule-making activities at the local (non-state) level.
Secondly, the specificity of municipal legal norms lies in their purpose, many of them simultaneously reflect municipal law as part of a complex branch of Russian law and fundamental rights - constitutional, financial, administrative and others - as part of the main branch of Russian law.
Moreover, with the development and strengthening of the legal framework of local self-government (which is associated with the adoption of federal and regional laws that specifically regulate various areas of public relations that arise at the local level), municipal legal norms are becoming increasingly independent and are becoming a priority in relation to the norms contained in in other laws. Art. 7 of the Federal Law "On the General Principles of the Organization of Local Self-Government in the Russian Federation" directly enshrines the provision that federal laws, laws of the constituent entities of the Russian Federation that establish norms of municipal law cannot contradict the Constitution of the Russian Federation and the named Federal Law. In the event of a conflict, the provisions of the Constitution of the Russian Federation and the said Federal Law shall apply.
1.3.2 Classification of municipal legal norms
For a deeper understanding of the features of municipal legal norms, they were adopted classify according to various criteria (criteria).
By the subject of legal regulation, according to those social relations that are regulated by these norms, they are divided into norms fixing:
Local self-government as the most important form of democracy;
Fundamentals of local self-government;
Forms of its organization and implementation;
Subjects of jurisdiction and powers of local self-government;
Guarantees of local self-government;
Responsibility of bodies and officials of local self-government.
By character contained in them prescriptions - into authorizing, obliging, prohibiting, referential.
By certainty contained in them prescriptions- into imperative and dispositive.
By action in time and space on the norms, act constantly, and the norms that are valid for a certain time; on the norms in force throughout the territory of the Russian Federation or on the territory of its constituent entities, or within the territory of a separate municipality.
By legal force- on the norms contained in the Constitution of the Russian Federation, federal constitutional laws and federal laws, constitutions, charters, laws of the constituent entities of the Russian Federation, other regulatory legal acts, and the norms of charters of municipalities, normative acts of bodies and officials of local self-government.
The norms of municipal law are also subdivided: into norms of general regulation (general regulatory) and norms of specific, detailed regulation; substantive and procedural.
1.3.3 Division of norms by subjects of lawmaking
The division of municipal norms by subjects of lawmaking is the main criterion for isolating two groups of normative prescriptions within the branch of municipal law.
The first group of norms characterized by the following features:
First, they are accepted by authorized subjects of local self-government (representative or executive bodies, heads of municipalities, heads of administrations, as well as citizens by direct expression of will).
Secondly, the norms of this group are accepted by the specified subjects within their powers. The scope of such powers is determined in the charters of municipalities.
Thirdly, the legal prescriptions of this group operate within the boundaries of specific municipalities. In other words, in terms of the territory of action, they are local, limited by the framework of the corresponding self-governing territory.
Fourth, the commented norms are binding on all enterprises, institutions and organizations located on the territory of the municipality, regardless of their organizational and legal forms, as well as local governments and citizens. The binding property, the imperious nature of the norms of municipal law adopted by the bodies and officials of local self-government, endowed the state in the legislation on the general principles of organizing local self-government in the Russian Federation.
In other words, the law-making of municipal bodies, the obligation and authority of their decisions are sanctioned by the state. It is only necessary to distinguish between municipal norms that are the result of prior authorization (the majority of such norms) by virtue of Part 3 of Art. 7 of the Law of 2003, from the norms of the charters of municipalities that need subsequent authorization (part 6 of article 44 of the law of 2003), since the latter are subject to state registration.
Fifth, the norms of municipal law can be canceled by the bodies and officials who adopted them, or declared invalid by a court decision (Part 2, Article 44 of the Federal Law of August 28, 1995). It is important to note that federal law denies the abolition of municipal norms in an administrative manner. This reflects the provision of Art. 12 of the Constitution of the Russian Federation, which separates local governments from the state. In addition, it should be borne in mind that the subordination of some municipalities to others is excluded. At the same time, the new federal legislation on the general principles of organizing local self-government allows for the possibility of canceling or suspending the operation of municipal legal acts by the authorized body of the state.
state power in the part regulating the exercise by local authorities of certain state powers.
Finally, non-fulfillment or improper fulfillment of municipal norms entails liability in accordance with the law (part 3, article 7 of the 2003 Law).
Summarizing the above, we can conclude that municipal norms of the first group - these are authoritative, obligatory rules of conduct established by bodies and officials of local self-government or citizens by direct expression of will and operating within the boundaries of specific municipalities.
The traditional definition of a legal norm is inapplicable to the norms of this group, according to which it is a rule of conduct established by the state, supported, if necessary, by its coercive force. The exclusion of local self-government bodies from the system of state power just does not give grounds to extend the well-known definition to the municipal norms of this group.
The norms of municipal law of the second group are established by federal and regional government bodies. They are united by the following features:
1) the main purpose of these norms is to consolidate the general parameters of local self-government, to establish their foundations in the Russian Federation. Among such regulations there are many norms-principles, norms-definitions, norms-goals, the sources of which are the Constitution of the Russian Federation, the Law of 2003, the laws on local self-government that are in force in the subjects of the Federation. These norms, united mainly in specialized legislative acts (laws on local self-government), are addressed to all municipalities within the borders of the Russian Federation or within its subjects;
2) they relate to various branches of Russian law: constitutional, administrative, land, etc.
2. General, Special and Special parts of the system of municipal law.
V. I. Fadeev defines the system of municipal law as “the unification of municipal legal norms into municipal legal institutions arranged in a certain sequence depending on their significance and role in regulating municipal relations” .
The traditional view of the system of the branch of law involves the allocation of General and Special parts. Most scientists and specialists in the field of municipal law follow this path. With regard to municipal law in 1999, the possibility of highlighting the General, Special and Special Parts was expressed and justified.
The specificity of legal institutions, their significance gives grounds for attributing them to the General or Special part. The following are proposed as the main criteria: “The general part combines a set of regulations that apply to the entire municipality. It consists of norms fixing the territorial foundations of local self-government, defining the relations of municipalities with other subjects of law, as well as norms-principles, norms-definitions ... A special part of municipal law includes normative instructions on the competence of local governments, municipal officials, about procedures of their activities, on the status and procedure for the activities of other subjects of local self-government” . This approach as a whole corresponds to the traditions of state scientists.
Another approach can be proposed, taking the traditions of administrative law as a basis. In this case, the Special Part can include the norms governing the powers of local governments to manage the municipal economy, in the socio-cultural sphere and in the field of law and order.
Then the system of municipal law will be presented as follows: the General Part (legal, territorial, organizational, financial and economic foundations of local self-government, responsibility of local self-government, guarantees of local self-government) and the Special Part (norms regulating the powers of local self-government bodies to manage the municipal economy, in socio-cultural sphere and in the field of law and order). It can be stated that both of these approaches have been expressed in federal laws. The first approach corresponds to the structure of the Federal Law of 1995 "On the General Principles of Organization of Local Self-Government in the Russian Federation", the second approach corresponds to the structure of the Law of the RSFSR of 1991 "On Local Self-Government in the RSFSR".
Local self-government is carried out throughout the territory of the Russian Federation, taking into account national, regional, historical, cultural and other features. Regional features have the greatest influence on the formation of local self-government. Obviously, with the same concept of local self-government within Russia, different regions have their own specifics. Therefore, it is advisable to single out a Special Part, which includes the rules governing the features of local self-government in certain territories. In this case, certain territories can be understood as:
1) territories with a special legal status (science cities, closed administrative-territorial formations, territories of residence of indigenous peoples, border areas and some others);
2) the territories of individual subjects of the Russian Federation (republics, territories, regions, cities of federal significance, autonomies);
3) territories of other states, if foreign experience of local self-government is considered within the framework of municipal law.
Also, the Federal Law "On the General Principles of Organization of Local Self-Government in the Russian Federation" contains certain prerequisites for such an approach. In particular, it singles out a separate chapter “Features of the organization of local self-government”, which discusses the features of the organization of local self-government in the constituent entities of the Russian Federation - the federal cities of Moscow and St. Petersburg (Article 79); in closed administrative-territorial formations (Article 80); in science cities (Article 81); in border areas (Article 82).
Thus, municipal law as a branch of law consists of General, Special and Special parts.
To General part include norms that can be combined into the following municipal legal institutions:
Legal bases of local self-government. The legal foundations are disclosed, as a rule, depending on the subjects that establish the norms of municipal law. Allocate acts of the federal, regional and local levels. Moreover, when characterizing acts of the municipal level, they necessarily name the charters of municipalities as the main charters.
Territorial foundations of local self-government. When characterizing the territorial foundations of local self-government, one should separately consider the issues of the administrative structure of the constituent entities of the Russian Federation and the issues of the formation, reorganization and liquidation of municipalities, since the procedures are very different. In the latter case, it is necessary to take into account the opinion of the population.
Organizational bases of local self-government represent a set of norms governing the exercise of the right of citizens to local self-government through forms of direct democracy, local self-government bodies and other elected bodies.
Financial and economic bases of local self-government. When characterizing the financial and economic foundations of local self-government, all authors name such legal institutions as the institution of municipal property, the local budget, the municipal treasury; a special place is occupied by local taxes and fees, off-budget funds.
Responsibility of local governments and officials. When characterizing the responsibility of local governments and their officials, one should distinguish between the responsibility of local governments to the population, individuals and legal entities, and the state. The responsibility of officials is manifested in the possibility of bringing them to various types of legal liability. The issue of responsibility to the population seems to be the most poorly developed. This type of responsibility is realized through the mechanism of early termination of powers in case of loss of confidence on the part of the population. The institution of recalling elected officials of local self-government should also be considered here.
Guarantees of local self-government. Guarantees of local self-government are a set of methods, means or ways of exercising the right to local self-government. V. I. Fadeev proposes to allocate, in addition to legal guarantees, such guarantees as social, economic, political, etc. A special place is occupied by the realization of the right to judicial protection, including in the Constitutional Court of the Russian Federation.
To special part include legal institutions that combine the rules governing the powers of local governments and their officials. It should be noted that at the local level, issues of local importance and issues of national importance transferred or delegated to local governments can be resolved. This circumstance allows a number of authors to single out two legal institutions - "the powers of local governments to resolve issues of local government" and "state power transferred or delegated to local governments" . It seems that such an approach is quite justified, since in each case there are a number of significant features (transfer of funds, forms and methods of empowerment, scope of empowerment, accountability, etc.).
Within special part it is necessary to allocate such municipal legal institutions as the powers of local governments to manage the municipal economy; powers to manage the socio-cultural sphere; powers to ensure law and order.
To special part include legal institutions that combine norms governing the organization of local self-government in certain regions, in certain territories.
3. The position of municipal law in the Russian system of law: features and significance.
The special position of municipal law in the legal system of Russia is due to the fact that it is defined as a complex branch of law. When disclosing the concept of "a complex branch of Russian law", it should be borne in mind that many norms and institutions of municipal law have an independent meaning, their own legislative framework and therefore are not directly related to the norms of other branches of law. We are talking about such institutions and sub-institutions of municipal law as local self-government - a democratic form of democracy, the territorial basis of local self-government, ways of implementing local self-government, guarantees for its implementation. Although it is indisputable that the origins of these norms, as well as the norms of many other branches, are in the branch of Russian constitutional law. Therefore, we can conclude that a significant part of the municipal legal institutions consists of their own legal norms that do not belong to other branches of law. A large number of their own norms are contained in the legislation of the constituent entities of the Russian Federation, the share of which in Russian municipal law becomes predominant in comparison with the norms contained in federal legislation. In view of the significant legal regulation of many issues of the organization and functioning of local self-government by laws and other regulatory legal acts of the constituent entities of the Russian Federation, we can talk about the presence of not only Russian federal municipal law, but also regional municipal law, that is, the municipal law of the corresponding republics, territories, regions, federal cities, autonomous regions, autonomous districts.
Therefore, municipal law, with the further development of the federal and regional legislative base of local self-government, will progress to an independent main branch of Russian law.
At the same time, at present, part of the municipal legal norms stems from other branches. This is especially true for such an institution of municipal law as the subjects of jurisdiction and powers of local self-government.
This legal relationship includes the norms of administrative, civil, financial, land, housing and other branches of law and legislation, which ultimately form the named institution, which occupies a significant place in the system of municipal law.
Thus, the complex nature of the branch of municipal law is due, on the one hand, to a significant number of independent municipal legal norms contained in federal and regional legislation, specifically devoted to the legal regulation of the organization and functioning of local self-government, and on the other hand, to a still large number of municipal - legal norms that are secondary, derived from the norms contained in other branches of law.
Such is the dual nature of municipal law, which determines the peculiarities of its place and role in the legal system of the Russian Federation.
CONCLUSION
In conclusion, the main points reflected in this work should be additionally noted.
So, we have considered the main elements of the municipal law system: legal institutions, principles and norms of municipal law.
Understand the importance of the principles of municipal law. Allocated principles declared by the Constitution Russian Federation, the principles expressed in the Law of 2003
They determined what municipal-legal norms are - these are the rules of law that consolidate and regulate social relations that arise at the local level, i.e. in the process of organizing and functioning of local self-government. It was found out that along with the common features inherent in all legal norms, municipal legal norms have their own characteristics. They are usually classified according to various grounds (criteria): by the subject of legal regulation; by the nature of the prescriptions contained therein; according to the degree of certainty of the prescriptions contained in them; by action in time and space; by legal force, etc.
The set of norms that are close in terms of the object and nature of legal regulation forms municipal legal institute. Municipal legal institutions are at the same time structural elements system of Russian municipal law va. The construction of a system of municipal law is conditioned by the foundations of local self-government, enshrined in the Constitution of the Russian Federation and the Federal Law "On the General Principles of Organization of Local Self-Government in the Russian Federation" - fundamental for municipal law as a branch of Russian law. This system cannot be presented as a complete structure. As the legal base of local self-government is strengthened and the practice of its development is enriched, these elements will be improved and refined, filled with both new life realities and scientific achievements.
Currently, the system of municipal law includes the following main structural elements :
1) local self-government as an independent institution of civil society, the most important form of democracy;
2) the basics of local self-government;
3) forms of local government;
4) subjects of jurisdiction and powers of local self-government;
5) guarantees of local self-government;
6) responsibility of bodies and officials of local self-government
leniya.
We also considered the General, Special and Special parts of the system of municipal law.
a common part unites a set of regulations that apply to all municipalities. It consists of norms fixing the territorial foundations of local self-government, defining the relations of municipalities with other subjects of law, as well as norms-principles, norms-definitions; norms-goals, competence norms, norms-prohibitions that establish the basic concepts, categories and indicators of local self-government. This also includes norms on the status of bodies and officials of local self-government, some procedural provisions that reflect the order of their functioning. These norms set the legal regimes of regulation for all municipalities or individual, specific areas of local self-government. In other words, the general part includes the norms established by the state authorities of Russia and its subjects.
Special part municipal law contains norms issued by bodies and officials of specific municipalities.
As mentioned earlier, to special part include legal institutions that combine norms that regulate the features of the organization of local self-government in certain regions.
List of sources used
1. The Constitution of the Russian Federation.// M. - 2004. - 48 p.;
2. Federal Law of August 28, 1995 "On the General Principles of Local Self-Government in the Russian Federation" with amendments and additions of April 22, 1996; November 26, 1996; March 17, 1997;
3. Federal Law of October 6, 2003 No. 131-FZ “On the General Principles of Organization of Local Self-Government in the Russian Federation”.
Bibliography
1. Vydrin I. V. Municipal law of Russia./ Textbook.// M. - "Norma". - 2005. - 320 p.;
2. Chetverikov V. S. Municipal Law./ Textbook.// M. - "INFRA-M". - 2001. - 183 p.;
3. Shugrin E. S. Municipal law of the Russian Federation./Textbook.// M. - "Prospect". - 2007. - 672 p.;
4. Ed. Kovalenko A. I. Legal reference book// M. - 1997.
Kostyukov A.N. Municipal law as a branch of Russian law. M., 2003. S. 166 - 167.
See details: Shaburov A.S. On the legal nature of acts of local government // Legal reform in Russia: problems of theory and practice. Ekaterinburg, 1996. S. 177.
See: Alekseev S.S. State and Law. S. 83.
See: Shugrina E.S. Municipal law. M., 1999. S. 29 - 31; Shugrina E. S. The system of municipal law as a branch of law // Problems of teaching constitutional and municipal law. M., 1999.
Vydrin I. V., Kokotov A. N. Municipal Law of Russia. P.23 - 24.
Shugrin E.S. Municipal law. From 29.
Pisarev A. N. Municipal law of the Russian Federation. M., 1997. S. 7.
Municipal law as a branch of law has its own system, i.e., a set of legal institutions that combine norms that regulate homogeneous legal relations.
V. I. Fadeev defines municipal law system as "unification of municipal legal norms into municipal legal institutions, arranged in a certain sequence depending on their significance and role in the regulation of municipal relations."
The traditional view of the system of the branch of law involves the allocation of General and Special parts. Most scientists and specialists in the field of municipal law follow this path. In relation to municipal law in 1999, the possibility of distinguishing the General, Special and Special Parts was expressed and justified.
The specificity of legal institutions, their significance gives grounds for attributing them to the General or Special part. The following are proposed as the main criteria: “The general part combines a set of prescriptions that apply to the entire municipality. It consists of norms that fix the territorial foundations of local self-government, which determine the relations of municipalities with other subjects of law, as well as norms-principles, norms-definitions ... A special part of municipal law includes normative instructions on the competence of local governments, officials of the municipal level, on the procedures for their activities, on the status and procedure for the activities of other subjects of local self-government”. This approach as a whole corresponds to the traditions of state scientists.
It seems appropriate to propose a different approach, taking the traditions of administrative law as a basis. In this case, the Special Part can include the norms governing the powers of local governments to manage the municipal economy, in the socio-cultural sphere and in the field of law and order.
Then the system of municipal law will be presented as follows: General part (legal, territorial, organizational, financial and economic foundations of local self-government, responsibility of local self-government, guarantees of local self-government) and Special part (norms governing the powers of bodies local self-government in the management of the municipal economy, in the socio-cultural sphere and in the field of law and order). It can be stated that both of these approaches have been expressed in federal laws. The first approach corresponds to the structure of the Federal Law of 1995 "On the General Principles of the Organization of Local Self-Government in the Russian Federation", the second approach corresponds to the structure of the RSFSR Law of 1991 "On Local Self-Government in the RSFSR".
Local self-government is carried out throughout the territory of the Russian Federation, taking into account national, regional, historical, cultural and other features. Regional features have the greatest influence on the formation of local self-government. Obviously, with the same concept of local self-government within Russia, different regions have their own specifics. Therefore, the author believes, it is expedient to single out a Special Part, which includes norms regulating the features of local self-government in certain territories. In this case, certain territories can be understood as:
1) territories with a special legal status (science cities, closed administrative-territorial formations, territories of residence of indigenous peoples, border areas and some others);
2) the territories of individual subjects of the Russian Federation (republics, territories, regions, cities of federal significance, autonomies);
3) the territories of other states, if foreign experience of local self-government is considered within the framework of municipal law.
The federal law "On the general principles of the organization of local self-government in the Russian Federation" contains certain prerequisites for such an approach. In particular, it singles out a separate chapter “Features of the organization of local self-government”, which discusses the features of the organization of local self-government in the constituent entities of the Russian Federation - the federal cities of Moscow and St. Petersburg (Article 79); in closed administrative-territorial formations (Article 80); in science cities (Article 81); in border areas (Article 82).
Thus, municipal law as a branch of law consists of General, Special and Special Parts.
To General part include norms that can be combined into the following municipal legal institutions:
Legal basis local government. The legal foundations are disclosed, as a rule, depending on the subjects that establish the norms of municipal law. Allocate acts of the federal, regional and local levels. Moreover, when characterizing the acts of the municipal level, the statutes of the municipalities are necessarily named as the main charters.
Territorial bases local government. When characterizing the territorial foundations of local self-government, one should separately consider the issues of the administrative structure of the constituent entities of the Russian Federation and the issues of the formation, reorganization and liquidation of municipalities, since the procedures are very different. In the latter case, the obligatory consideration of the opinion of the population is required.
Organizational Foundations local self-government represent a set of norms governing the exercise of the right of citizens to local self-government through forms of direct democracy, local self-government bodies and other elected bodies.
Financial and economic fundamentals local government. When characterizing the financial and economic foundations of local self-government, all authors name such legal institutions as the institution of municipal property, the local budget, the municipal treasury; a special place is occupied by local taxes and fees, off-budget funds.
A responsibility local governments and officials. When characterizing the responsibility of local self-government bodies and their officials, one should distinguish between the responsibility of local self-government bodies to the population, individuals and legal entities, and the state. The responsibility of officials is manifested in the possibility of bringing them to various types of legal responsibility. The issue of responsibility to the population seems to be the most poorly developed. This type of responsibility is implemented through the mechanism of early termination of powers in case of loss of confidence on the part of the population. The institution of recall of elected officials of local self-government should also be considered here.
Guarantees local government. Guarantees of local self-government are a set of methods, means or ways of exercising the right to local self-government. V. I. Fadeev proposes to allocate, in addition to legal guarantees, such guarantees as social, economic, political, etc. A special place is occupied by the realization of the right to judicial protection, including in the Constitutional Court of the Russian Federation.
To special part include legal institutions that combine the rules governing the powers of local governments and their officials. At the local level, issues of local importance and issues of state importance, transferred or delegated to local governments, can be resolved. This circumstance allows a number of authors to single out two legal institutions - "the powers of local governments to resolve issues of local government" and "state powers transferred or delegated to local governments."
Within the framework of the Special Part, it is necessary to single out such municipal legal institutions as the powers of local self-government bodies to manage the municipal economy; powers to manage the socio-cultural sphere; powers to ensure law and order.
To special part include legal institutions that combine norms that regulate the features of the organization of local self-government in certain regions, in certain territories.
The system of science of the municipal nature is determined by its subject and the strict scientific sequence of studying the issues that make up its content. The system of science is based on the system of municipal law as a branch of law.
As a system, the science of municipal law studies the subject as a branch of law, gives the concept of municipal law, considers municipal legal norms, institutions, their features, municipal legal relations, etc.
Issues related to the subject of municipal law are consistently considered.
Municipal law science system- an ordered set of relatively independent complexes of theoretical provisions, knowledge about municipal legal phenomena that have a logical connection between them.
The system of municipal law as a branch of law- this is a set of municipal legal norms, grouped and arranged in a certain sequence depending on their content, the nature of the social relations they regulate and the meaning of the norms themselves.
But this is not a simple collection. There are complex systemic connections between them. Municipal law, being part of the unified legal system of the state, in turn is itself a complex system. The system of the industry is expressed in its internal structure, due to the links that exist between its norms, which determine the basis for their difference and interpenetration into certain legal formations that form the signs of an element of this system, as well as the structure of the latter.
The traditional view of the system of the branch of law involves the allocation of general and special parts. Most scientists and specialists in the field of municipal law follow this path. At the same time, since 2000, it has been customary to single out in the system of municipal law: general, special and special part.
In the system of municipal law, it is customary to distinguish the following main institutions:
- 1) the general part includes norms that can be combined into the following municipal legal institutions:
- - basics of local self-government, including:
- a) the legal basis of local self-government. This group includes norms containing definitions of the basic concepts and terms used by the legislation on local self-government, such as local self-government, municipality, issues of local importance, etc. This also includes norms that enshrine the basic principles and functions of local self-government. Depending on the subjects, I set
- - basics of local self-government, including:
enshrining these legal norms, there are acts of the federal, regional and local levels,
- b) the territorial foundations of local self-government - the norms governing the formation, reorganization and liquidation of municipalities, changing their boundaries and names,
- c) organizational bases of local self-government. They are a set of norms governing the exercise of the right of citizens to local self-government through forms of direct democracy, local self-government bodies and other elected bodies,
- d) financial and economic foundations of local self-government. This includes such legal institutions as the institution of municipal property, the local budget, the municipal treasury; local taxes and fees, off-budget funds;
- - responsibility of local self-government bodies and officials - norms establishing the forms, procedure and conditions of responsibility of local self-government bodies to the population, individuals and legal entities, the state;
- - Guarantees of local self-government - norms that fix the system of guarantees that ensure the organizational and financial independence of local self-government, as well as judicial and other legal forms of protection of local self-government;
- - territorial public self-government of the population;
- - municipal service;
- 2) the special part includes legal institutions that combine the rules governing the powers of local governments and their officials. The powers are divided into: the powers of local governments to resolve issues of local government and state-power powers transferred or delegated to local governments;
- 3) the special part includes legal institutions that combine the rules governing the organization of local self-government in certain territories (science cities, closed administrative-territorial entities (ZATO), etc.).
Such a structure of municipal law corresponds to the internal consistency of the sphere of social relations that constitute its subject matter.
The criterion for the systematization of legal norms can be factors that are inherent in the legal form itself, the legal norms themselves, their features and their properties. These factors stem from the content of social relations.
Each element of the system of the branch of municipal law, its largest institution, is characterized by the presence of special features of a legal nature that are characteristic of the norms of this institution, distinguish them qualitatively from the norms of other institutions.
The signs by which it is possible to make distinctions, reflecting the specifics of each of the institutions, are diverse. These include, for example, differences in the specifics of the legal impact, in the peculiarities of the mechanism of operation of legal norms; ways of their implementation; but the degree of specific focus of legal regulation; by subjective composition; according to the method of legal protection of the action of legal norms, forms and methods of liability of legally liable subjects; on the specifics of the forms of expression covered by this institution of legal norms; according to the specific nature of the norms of this institution; by the degree and scope of the involvement of other parts of the legal system, other branches of law in the implementation of the goals laid down in the content of legal norms; on purposefulness of legal regulation; according to the functions inherent in each institution)"; according to the principles inherent in each of the institutions, those guiding principles to which the cumulative effect of all its norms is assigned.
The characteristic of the system of the branch of municipal law involves not only the identification of the constituent parts of the branch, its main elements, but also the justification of their relationship, the place of each of them in the branch system.
The industry system covers the entire set of municipal legal norms established in the main source. This industry is characterized by a higher level of generalization of norms in terms of their subject content.
- Kutafin O. E., Fadeev V. I. Municipal law of the Russian Federation. M., 2000.S. 33.
The system of municipal law.
Municipal law, as a branch of law, has its own system, in which complexes of homogeneous norms are distinguished that regulate certain groups of social relations included in its subject.
The system of municipal law is based on a logical, consistent division of the norms of municipal law and their associations into homogeneous legal complexes (institutions), taking into account the content and nature of relations regulated by them in the field of local self-government.
At the same time, the system of municipal law reflects the interconnection and interdependence of the legal regulation of issues of local self-government as an integral social phenomenon. Therefore, the system of municipal law has an objective basis: its construction is determined not only by the structure of the Federal Law "On the General Principles of the Organization of Local Self-Government in the Russian Federation", but also by the needs of local self-government development practice, which affects the formation of municipal law institutions, helps to determine their role in local self-government.
Consequently, the system of municipal law is understood as the unification of municipal legal norms into municipal legal institutions arranged in a certain sequence depending on their significance and role in regulating municipal relations.
Her first element are municipal legal norms that fix the position of local self-government in the system of democracy, defining its role in the development of democratic principles in the management of society and the state. This group includes norms containing definitions of the main concepts and terms used by the legislation on local self-government, such as “local self-government”, “municipal formation”, “issues of local importance”, “local referendum”, “local self-government bodies”, “ official of local self-government” and others. The same group includes norms that fix the basic principles and functions of local self-government.
Local self-government as a form of organization of power at the local level is characterized by close interaction and interpenetration of forms of direct and representative democracy. The norms of municipal law related to this group fix the forms of direct expression of the will of the population of municipalities, the institutions of representative democracy in the system of local self-government, and other elements of this system.
The second element of the system of municipal law make up the norms that fix the foundations of the activities of local self-government: territorial, organizational, financial and economic. They determine the procedure for the creation, consolidation, transformation or abolition of municipalities, the establishment and change of their boundaries and names, and also fix the principles of the organization of local self-government, the foundations of relations between elected and other local self-government bodies, the conditions and procedure for the passage of municipal service, the status of a municipal employee.
The most important condition for the independence of local self-government is the financial and economic foundations of the activities of the population of municipalities. The norms of municipal law fix the procedure for the formation of municipal property, its composition, and also establish the foundations for the financial independence of local self-government.
The third element of the municipal system law is a group of norms that fix the subjects of jurisdiction and powers of local self-government. These norms establish their own powers of local self-government, as well as certain state powers that may be vested in local self-government bodies. The norms belonging to this group regulate the principles for determining the competence of local governments, the relations that arise in the process of exercising the powers of local government in various areas of local life.
The fourth element of the system of municipal law - a group of norms establishing guarantees of local self-government. They establish a system of guarantees that ensure the organizational and financial independence of local self-government, as well as judicial and other legal forms of protection of local self-government.
The essence of local self-government lies in the independent and under its own responsibility activities of the population to address issues of local importance. That's why the fifth element of the system of municipal law constitute the norms establishing the responsibility of local self-government bodies and officials of local self-government. These norms determine the forms, procedure and conditions of responsibility of bodies and officials of local self-government to the population of the municipality, to the state, as well as to individuals and legal entities.
Thus, the system of municipal law includes the following structural parts:
1) local self-government in the system of democracy;
2) bases of local self-government: territorial, organizational and economic;
3) subjects of jurisdiction and powers of local self-government;
4) guarantees of local self-government;
5) responsibility of local self-government bodies and officials of local self-government, control over their activities.
List of used literature:
Kutafin O. E., Fadeev V. I.
K95 Municipal law of the Russian Federation: textbook. - 3rd ed., revised. and additional - M.: TK Velby, Prospekt Publishing House, 2006. - 672 p.
