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11.12.2018
AUTHOR: O.A. Shevchuk

Legal Content of Normative Activity of Central Executive Authorities

UDC 342.61,

Oleksii Anatoliiovych Shevchuk

Postgraduate Student, Department of Constitutional Law

and Local Self-Government

Institute of State and Law

of the National Academy of Sciences of Ukraine

 

Legal Content of Normative Activity of Central Executive Authorities

 

Problem Statement. The relevance of the topic of this article is the exceptional role of the central executive authorities in the state regulation of public relations. At the same time, it is the central authorities of executive power that regulate social relations, and carry out direct legal regulation in the relevant field in the process of carrying out their activities.

Analysis of Recent Research and Publications. In Ukrainian legal science K. H. Volynka, D.V. Zhuravlev, L.I. Zamorska, T.V. Kurus, N.V. Lazniuk, N.M. Parkhomenko, Y.V. Saifulina and the like studied the issue of normative activity.

The purpose of the article is to establish legally significant signs of the normative activity of central executive authorities. This goal is implemented in the following tasks:

  • to establish the legal nature of normative activity;
  • to identify the specifics of normative activity in the central executive authorities.

Study Summary. Article 6 of the Constitution of Ukraine provides that state power in Ukraine is exercised according to the principle of its separation into legislative, executive, and judicial. The legislative, executive and judicial authorities exercise their powers within the limits established by this Constitution and in accordance with the laws of Ukraine [1].

Such a special law is the Law of Ukraine “On Central Executive Authorities”, Part 1 of Art. 1 of which provides that the system of central executive authorities consists of the ministries of Ukraine (hereinafter – the ministries) and other central executive authorities. The system of central executive authorities is a component of the system of executive authorities, the highest authority of which is the Cabinet of Ministers of Ukraine [2].

In order to determine the legal content of the normative activity of the central executive authorities, we should first apply to the features of the role and functions inherent in the executive authorities.

In the theory of separation of powers, the executive branch is considered to be allocated under the separation of powers by a branch of state power, which should prerogatively implement laws and other decisions adopted by the parliament. The main function of the executive branch, therefore, is the implementation of laws. In addition, the executive branch performs the function of the regulation of public relations, that is, the highest executive authorities are empowered to adopt sub-legal regulatory acts. The executive power of the foundation is associated with the state power in the narrow sense of the word, since, unlike other branches of power, it is based on hierarchical relations, which provide for a clear organization of public service relations, subordination and responsibility [3, p. 133-134].

The connection of the two above-mentioned forms of activity of the executive authorities is carried out in a number of functions of the executive authority, among which M.P. Kuntsevych highlights the following:

  • managerial (organizational and regulatory)
  • repressive (punitive-compulsory)
  • regulatory function of the executive branch carried out in the form of state regulation;
  • ensuring the realization of the rights, freedoms and interests of individuals through the provision of administrative services [4, p. 143-144].

Among these functions, management is the most inherent to the central executive authorities. It is in the management process in one or another sphere (branch) of public life that a need arises for subordinate legal regulation, that is, the adoption of acts, that is, adopted subordinate regulatory acts aimed at implementing the Constitution and laws of Ukraine and detailing the relevant constitutional and legislative regulations. Similar in content to this function is the regulatory function, which is also aimed at improving the legal settlement in the relevant field. For example, the state regulatory policy in the sphere of economic activity is the direction of state policy aimed at improving the legal regulation of economic relations, as well as administrative relations between regulatory authorities or other state authorities and business entities, preventing adoption of economically inexpedient and ineffective regulatory acts, reducing interference the state in the activities of business entities and the elimination of obstacles for the development of economic activity, is carried out in the manner established by the Constitution and the laws of Ukraine [5].

Thus, paragraph 1 of Part 1 of Art. of 7 the Law “On Central Executive Authorities” provides that one of the main tasks of the ministry as a body that ensures the formation and implementation of state policy in one or several areas is the provision of legal regulation.

In Ukrainian legal science, it is believed that management is a special social function, arises from the needs of society as a self-sufficient system and is carried out in the relevant state or non-state forms through organizational activities specifically created for this group of bodies. Management is also political in nature, can be viewed from a social, economic point of view. The essence of public administration is the execution of laws and other legal acts of state bodies. From this point of view, implementation is the main feature of state administration, the implementation of which is entrusted to the executive authorities (in a broad sense – to the government bodies). For state management, it is characteristic that executive activity is its main purpose and constitutes an important aspect of characterizing the content of this type of management, organically linked with direct management of the economy, socio-cultural and administrative-political construction and, therefore, is also an administrative activity [6, p. 12].

The organizational and administrative nature of the management activities of the central executive authorities is manifested, in particular, in the fact that they provide regulatory support for management and regulatory activities.

Normative activity of central executive authorities is thus a special kind of legal process, the dynamics of which can be tracked in terms of staging. The analysis of the regulations of the central executive authorities makes it possible, with a certain degree of generality, to single out the following stages of the lawmaking process. The first stage is the preparatory work and the drafting of a regulatory act. Development of draft regulations is a difficult and painstaking work. Many of the shortcomings of modern normative activities are largely due to the unjustified haste of preparing normative acts, the lack of sufficient experience, qualified personnel, and the necessary theoretical basis. Among these shortcomings are unsystematic, chaotic development of legislation, the lack of a scientifically based system of legal acts of management, contradictions and inconsistencies within the regulatory body [7, p. 286-287].

At this stage of the norm-making process, the task of regulatory regulation should be set; definition of the subject of preparation of the project; collection and analysis of information on the state of affairs in the relevant field of legal regulation and the reasons for the need for project preparation; determination of the subject of legal regulation, alternative ways to solve the problem, their analysis and establishment of one as a base; preparation of the text of the draft regulatory act. In our opinion, it would be useful to supplement this stage with another procedure – the mandatory preparation of a forecast for the adoption of a regulatory act. As noted back in 1978 by Professor B. V. Dreishev, forecast allows you to see the results of the acts, which are accepted, like other scientific methods, and it should be included in the daily practice of public administration [8, p. 130].

The second stage is carrying out examinations, coordination with interested authorities, finalization of the project. A legal act must provide the optimal mechanism for solving one or another management task. The definition of such a mechanism requires legal and factual justification, maximum consideration and implementation of the special knowledge, interests of various stakeholders, and management experience. Realization of the goal of this stage of the rulemaking process is to transform the project into the final expression of the will of the government body ready to be adopted in the prescribed manner in the form of a regulatory act [9, p. 101].

The third stage is the adoption of the act by the central executive authority. The legal act embodies and objectifies the one-sided will of the authority, and is directed to the achievement of a certain legally significant result. At this stage, the state gets its social and formal consolidation and, as a result, acquires obligations for the participants of legal relations [10, p. 150]. The priority of the single-minded nature of the central executive authorities determines the features of this stage of the process, carried out by signing the act by the head of the relevant body. The collegial procedure for adopting regulatory legal acts is envisaged, in particular, in such bodies as the State Commission for Regulation of Financial Services Markets of Ukraine, the National Electricity Regulatory Commission of Ukraine. The fourth stage is the state registration. As is rightly noted in scientific sources, it most significantly affects the state of ensuring the legality of the by-laws and regulations of the executive authorities. However, this work is complicated today because of the lack of legal guarantees for the timely submission of acts for registration, the complete elimination of inconsistencies of acts is identified by the judicial authorities to the laws of Ukraine [11, p. 180].

The fifth stage is the promulgation of legal acts. It is carried out in compliance with the requirements of the Law of Ukraine “On Access to Public Information” [12]. Publication plays a special procedural role, most often serving as the actual basis for the commencement of legal action of a regulatory act. Under the legal force of the act is understood the reality of the practical application of this legal form of management actions within the framework of the public administration system [13, p. 152]. It shows the ability of a legal act to act as a regulator of administrative legal relations, to solve the tasks of public administration, exercise the functions and powers of a particular executive body, and also ensures the general obligation of the adopted legal act, the requirement of its steady and accurate implementation. Regulatory acts of the central executive bodies are official documents with fixed information in the form of text, intended for transmission in space and time in order to resolve certain issues arising in the process of exercising public administration.

In general, for the central executive authorities there is a significant regulatory framework for regulating the rule-making activity, which consists of a large, extensive array of regulatory and legal acts of different legal force. However, only in their totality they are able to provide a holistic legal influence on the norm-making activities.

Findings. The analysis of the legal framework allows us to identify the following features of the normative activity of the central executive authorities:

1) the normative activity of these authorities is an element of the state regulation mechanism, it has a sub-legal nature and in the process of which the formation of generally binding formal regulations and rules takes place;

2) means of organizing and implementing public administration, but the process of lawmaking itself is regulated by law;

3) lawmaking is a purposeful activity that takes place in certain time intervals, contains internal elements – the stages of the lawmaking process, includes a set of specific actions and procedures.

The study made it possible to study the legal regulation of the organization of the development and adoption of legal acts of the central bodies of executive power. At the same time, it should be borne in mind that the lawmaking competence of these authorities also includes the authority to participate in the lawmaking process of other government bodies, in particular, to develop draft laws of Ukraine, acts of the President of Ukraine, the Cabinet of Ministers of Ukraine and submit them to the relevant authority in accordance with legislation.

 

 

 

REFERENCES.

  1. Constitution of Ukraine // The Legislation of Ukraine, official portal of the Verkhovna Rada of Ukraine [Electronic resource] – Available at: http://zakon2.rada.gov.ua/laws/show/254%D0%BA/96–%D0%B2%D1%80/paran4188#n4188
  2. The Law of Ukraine “On Central Executive Authorities” // The Legislation of Ukraine, official portal of the Verkhovna Rada of Ukraine [Electronic resource] – Available at: http://zakon5.rada.gov.ua/laws/show/3166–17
  3. General Theory of State and Law: [Textbook for law students] / ed. Dr. Juridical Sciences, Prof., Acad. of the NALS of Ukraine M.V. Tsvika, Dr. Ju. Sciences, Prof., Acad. of the NALS of Ukraine A.V. Petrishyn. – Kharkiv: Law, 2009. – 584 p.
  4. P.Kuntsevych, Functions of the Executive / M.P. Kuntsevych // State and Law: Legal and Political Sciences – Edition 60 – p. 140–145.
  5. The Law of Ukraine “On the Basics of the State Regulatory Policy in the Sphere of Economic Activity” // The Legislation of Ukraine, official portal of the Verkhovna Rada of Ukraine [Electronic resource] – Available at: http://zakon3.rada.gov.ua/laws/show/1160–15
  6. P. Pylypyshyn, Concept and Main Features of Public Administration / V.P. Pylypyshyn // Legal Science and Practice – 2011 – No. 2 – p. 10–14
  7. Executive Power and Administrative Law / Under. ed. of V. B. Averyanov. – M.: Publishing House “InYure”, 2002. – 668 p. 286–287
  8. V. Dreyshev, Lawmaking Relations in the Soviet State Management / B.V. Dreyshev; Leningrad. A.A. Zhdanov State University – L.: LSU, 1978. – 175 p.
  9. V. Dreyshev, Discussion of Draft Regulations by Collegial Bodies of State Administration / B.V. Dreyshev // Vestnik Leningradskogo Universiteta. – 1974. – No. 17. – p. 100–106.
  • N. Moskalkova, Lawmaking: Scientific and Practical Manual / T.N. Moskalkova, V.V. Chernikov. – M. : Prospect, 2011. – 384 p.
  • N. Gorbunova, Principle of Legality in the Lawmaking Activities of Executive authorities: monograph / L.N. Gorbunova. – M. : Odyssey, 2008. – 240 p.
  • The Law of Ukraine “On Access to Public Information” // Legislation of Ukraine, official portal of the Verkhovna Rada of Ukraine [Electronic resource] – Available at: http://zakon2.rada.gov.ua/laws/show/2939–17
  • Administrative Procedures and Control in the Light of European Experience / ed. of T.Ya. Khabrieva and Zh. Mark. – M. : Statut, 2011. – 320 p.

Oleksii Anatoliiovych Shevchuk. Legal content of normative activity of central executive authorities.

In the article, the author considers the issue of the normative activity of the central executive authorities of Ukraine. The author establishes the main features of the activities of executive bodies – management, control, regulatory, and the provision of administrative services. The legislative bases of activity of the central executive authorities are determined. It is established that thelawmaking activities are more inherent in managerial and regulatory activities. The stages of lawmaking and their procedural and substantive content have been defined. A number of conclusions and generalizations, both theoretical and practical, have been implemented.

Keywords: norm of law, norm–making, executive power, state administration.

 

Shevchuk Oleksii. Legal content of normative activity of central executive authorities.

In the theory of separation of powers the executive singled considered in terms of the separation of powers of public power, which has the prerogative to carry out law passed by Parliament and other solutions. Executive power is inherent in managerial, repressive, regulatory, and also ensuring the realization of the rights, freedoms and interests of individuals through the provision of administrative services.

It is determined that the essence of state administration in a concise form is the implementation of laws and other legal acts of state authorities. The organizational and administrative nature of the management activities of central executive authorities is manifested in particular in the fact that they carry out normative provision of management and regulatory activity.

The normative work of central executive authorities is thus a special type of legal process, the dynamics of which can be monitored in terms of stage. The first stage – preparatory work and drafting of a legal act. The second stage – conducting of examinations, coordination with the interested bodies, finalization of the project. The third stage is the adoption of the act by the central executive body. The fourth stage is state registration. The fifth stage – the publication of normative legal acts.

Regulatory acts of central executive authorities are official documents with fixed information in the form of a text intended for transmission in space and time in order to solve certain issues that arise in the process of implementation of public administration.

In general, for the central executive authorities, there is a significant regulatory framework for regulation of normative activity, which consists of a large volume of a broad array of regulatory legal acts of varying legal force. However, only in their totality, they are able to provide a holistic legal impact on normative activities.

The analysis of the institutional and legal framework allows to distinguish such features rulemaking central authorities: 1) rule–making bodies is part of the mechanism of state regulation that is subordinate nature in the process of which is the formation of mandatory formally defined regulations and rules; 2) is a means of organizing and implementing public administration, however, the process of rule–making itself is regulated by law; 3) is focused rulemaking activity continued in certain time intervals, contains internal elements – the stage of the legislative process, includes a set of specific actions and procedures.

Keywords: norm of law, norm–making, executive power, state administration.

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