|
Research and educational journal
Published quarterly since 2007
ISSN 1999-5431
E-ISSN 2409-5095
Issue 2013 no4 contents:
LEGAL ASPECTS OF THE STATE AND MUNICIPAL ADMINISTRATION
|
7–18
|
This article focuses on one of the most important principles of government centralization and decentralization. This principle is reflected in the organization and functioning of political, territorial and resource characteristics of the state. The analysis of the trends and criteria for the federal and regional levels of government, the means of establishing a volume of competence of state bodies and guarantees of their independence are shown in the article. The article assesses the factors of "displacement" and distorted competition; considers characteristic modes of interaction and relationship with businesses; reflects a historical process of the formation of decentralization and centralization from the Soviet period and up to the present time. It defined criteria specific to decentralization and centralization; reflected their differences; briefly revealed the essence of the criteria for centralization. Centralization ensures the integrity of the state system and the "full" consolidation of its elements, the concentration of decisionmaking at the top levels of government, the concentration of financial, material, information and other resources, etc. Decentralization can be characterized by the approach of the subjects of management (bodies) to the managed objects (spheres, industries, organizations),by a kind of direct communication; by autonomy in matters of their competence and the availability of necessary resources of their own; by the responsibility for their enforcement actions and the results obtained; by their close relationship with the population of cities, districts and rural settlements; by their decision making. Identified criteria for centralization and decentralization can detect the necessary transformation of government and the essence of competence at various levels of decentralization and centralization. The paper analyzes a number of laws and regulations, found a number of those vaguely worded; shows the ways to solve this problem; identifies various contradictions in the definition of competence, and provides a number of criteria identified in practice. It also identified a number of modes of interaction of the state and business, i.e. guide and subordination; legal regulation; soft ware and target orientation; government support; making suggestions ( coming up with initiatives) and their considering in the form of rules, regulations, which are necessary for taking into account the opinion of the author in this rapidly changing world. |
|
19–36
|
This article aims to identify some factors of legal regulation that put limits on the use of centralized methods in law and, in a broader sense, in social governance, primarily factors that inevitably produce legal indeterminacy and make a law-applying entity act at its discretion.
The article is based on a hypothesis that putting a safety hedge around the deductive model of law application with the unawareness of legal indeterminacy and the need for discretionary action on the part of a law-applying entity results in this subject being ousted from the theory of legal reasoning and legal theory in general, primarily in Russian legal discourse.
This has direct practical effects as it hides the availability for a law-applying entity of more than one option for a decision on a specific case and consequently relieves it of the need to publicly explain the motives for its choice. For this reason, any attempt to sustain the illusion that a specific decision in the application of law is deductible from law will have the opposite effect, namely enlargement of discretionary powers, inconsistent and arbitrary judicial and administrative practices, and a less significant role of social governance mechanisms that are based on general rules.
Consequently, any attempt to give a paramount role to centralized regulatory methods in government will have internal limitations that stem from such intrinsic indeterminacy.
The article also purports to systematize arguments underlying the thesis of inevitable indeterminacy and partial autonomy of a law-applying entity in taking decisions regardless of what a law stipulates. The article analyzes factors such as the linguistic indeterminacy of stipulation, the deliberate ambiguity of a specific law (e.g. the use of "bendable" rules, legal standards, or value judgments), the incompletion or inconsistancy of a law, the discretionary selection of significant facts and discretionary qualifications of specific cases, legal disfunction, contradiction between the objectives of a law and the results of its application, inevitable exceptions from the rules, and indeterminate principles for the interpretation of law and for filling legal gaps.
The reasons for the use of the administrative discretion include a more extensive state regulation, a wider use of redistribution, changes in the nature of tasks to be addressed to public administration and higher standards for their implementation, more sophisticated decisionmaking technology, the need for law-applying entities to have better knowledge in various specialist fields of law and a more prominent role of specialists, limited resources, and the incremental style of decision-making. |
THE THEORY AND PRACTICES OF THE PUBLIC ADMINISTRATION
|
37–58
|
The core of the approach chosen to divide powers and jurisdictions between bodies of power is the quality of state governance on the scale of the Federative State as a whole and its composing systems. Evaluation of the worked out criteria, ways, principles and mechanisms of the division of powers and jurisdictions that have been used in Federative practice, points to the rooted legislative model of regulating powers division which is exceedingly centralist by its nature. The article considers modern trends in making a division of powers between authorities of the Russian Federation, between bodies of power of the RF subjects, and local municipal bodies of public administration. An attempt has been made to reveal the problems that hamper developing federative ways in governing. With these ideas in view, the article criticizes the current federal and regional legislature of the Russian Federation and makes proposals on its optimization as well. For once, it makes a conclusion that intricate work should be done to draw up a fullinventory of federal and regional legislative branches. It is necessary to define how much the powers of local public administrations correspond the questions of local importance provided by the Federal law "On general principles of the organization of local public administration in the Russian Federation"; to precise the amount and substance of the relevant powers; to withdraw extra and irrelevant to municipalities powers; to exclude assigning equal or similar powers to authorities of different levels simultaneously. Besides, it is necessary to work out criteria and to determine limits to delegating federal and regional state powers to local bodies of public administration. |
|
59–74
|
The subject-matter of the article is an analysis of the causes and consequences of the attitude of the central bodies of government to the bodies of power in the periphery [to the subfederal and municipal ones, and of the sub-federal government bodies to the municipal bodies], which is not typical of the majority of federations. For many years this kind of attitude has been enhancing centralization of power which originally stemmed from our legislation and the ideas of a hierarchical organization of state and municipal management being useful and quite admissible. The method of analysis used was a case study of the native legislation and the practice of relationships between the central and periphery bodies of government over the years of 2000–2013, as well as analytical materials especially prepared as expertise for government bodies of different levels. The study showed an absolute domination of the federal "centre" in the field of periphery legislation, judicial and executive power. According to the taxation scheme, produced by the federal "centre", two thirds of the general volume of periphery taxes should be transferred to the revenue part of the federal "centre" budget. Thus, practically all "periphery" have found themselves being unable to carry out their constitutional responsibilities to the people independently, and have been in direct fiscal and budget dependence from the federal "centre"; the same has been the case with the fiscal and budget relations between the municipal "periphery" and the sub-federal "centre", with the possibility for the "periphery" to influence decision making by the federal "centre" being most limited. Only 7% of the bills, prepared in the subjects of the RF and presented to the State Duma, become acts of parliament The same percent of their powers has been laid down independently by the periphery regional and municipal government bodies, and the rest is fixed and enforced to be executed by the federal "centre". The domineering of the federal "centre" in regard to the "periphery" is gradually losing its positive potential, so restricting independence of the periphery at the time when a general crisis is spreading, is hardly expedient. |
|
75–98
|
The article considers governance issues in the field of environmental protection and natural resources. Particular attention is paid to the distribution of executive powers between the federal (i.e. federal ministries and agencies) and local executive authorities (i.e. subjects of the Russian Federation) in those areas. Considerable attention is paid to the issue of implementing the mechanism of the executive powers and functions transferred by the Russian Federation to the local authorities (water, forest and hunting resources; wildlife protection; environmental assessment procedures). In the article the executive powers and functions of the federal and local authorities of the Russian Federation in terms of their efficiency as a system formed by the public authorities for the purposes of environmental protection and natural resources management are duly presented and analyzed. The need for government regulation and oversight in these areas, taking into consideration their importance to the economy of the Russian Federation and negative impact on the environment, is well substantiated by the authors. The article proposes solutions on a number of issues regarding the optimization of the distribution of executive powers and functions between the federal and local authorities of the Russian Federation, including the transfer of federal executive powers and functions to the regions (i.e. subjects of the Russian Federation). |
|
99–112
|
This article reflects some results of the work undertaken by the expert working group on optimization of public expenditures in the area of governance which contributed to the overall efforts on evaluating efficiency of the federal budget expenditures and forming recommendations on the optimization of such expenditures in 2013. This evaluation was conducted jointly by the Russian Academy for National Economy and Public Administration (RANEPA) and National Research University – Higher School of Economics (NRU-HSE) in cooperation with the Ministry of Finance, Ministry of Economic Development, and other federal authorities. The article is focused on the influence of decentralization policies on the efficiency and effectiveness of public spending both in a broad context and in one, based on the practice of delegating some federal powers to the constituent entities (regions) of the Russian Federation. Analysis of the federal budget execution data as well as some public sectors’ statistics demonstrates that the practice of delegation of the Russian Federation’s powers to the sub-national level which was accompanied by relevant budgetary transfers (subventions) has led to an excessive growth of the federal budget expenditure on the relevant areas (as compared to the GDP growth for the same period and the growth of the federal budget expenditures on the public administration as a whole). At the same time –at least in the selected cases –the efficiency and effectiveness of public spending, including performance outputs have decreased aft er the delegation of powers took place. Decentralization based on the delegation of powers has also resulted in new functions aimed at controlling the effectiveness of the delegated authorities’ performance. As a result, total administrative costs have increased. Given these conclusions it is recommended to switch from the practice of delegating authority to the practice of reallocating certain powers among the levels of government with a parallel reallocation of the budget revenue sources. Such a reallocation should be based on a detailed profound review of the efficiency and effectiveness of decentralization in each particularsector, with both the options of further devolution and recentralization being considered. |
|
113–130
|
The article is devoted to the urgent topic of the organization of control activities. The purpose of the article is to reveal problems and substantiate proposals on its improvement. The major shortcomings include duplication of authority of the control bodies, fragmentation of control functions, weak inter-institutional cooperation. The results of non-optimal organization lead to higher costs of financial and human resources inspection, increase of administrative pressure on the national economy. The author gives specific examples, substantiates need for an explicit use of the terms "control", "supervision", "audit", "monitoring" in legislation. Special attention is paid to the organization of the state (municipal) financial control. This is an area of the most acute issues of delineation of competence and interaction and coordination between control authority established by the legislative (representative) and executive powers. The author examines the legal nature of the external financial control bodies, highlights the objectives of their activity and analyzes their authority. The author proposes measures to optimize the interaction of external and internal control. The model of the organization of financial control that would prevent duplication of control bodies and optimize the number of their employees is proved. |
PERSONNEL POLICIES
|
131–142
|
The article is devoted to the aspect ratio of centralization and decentralization, which is poorly developed in science and has not been fully taken into account in practice of public administration. Meanwhile, it is the human factor that "animates" complex activities of executive bodies and their relationship with each other. The article highlights the key issue of interest and motivation, the solution of which allows us to understand inner springs of movement of workers between different levels of government. The author characterizes the species of interest and related motifs as the main pulse of any management activities. He considers relationship of different interests heads with features of their job displacement and identifies the following types of interests: personal, group, narrowly professional, career, corporate (departmental), territorial, general civil ones. The article also analyzes the underlying motives of the executive staff (achievement-oriented, professional, avoidance motive, patriotic, economic) to promote their careers. All this allowed the development of employees’ psychological characteristics in familiar and new positions. It was possible to detect weaknesses of the movement dynamics of administrative personnel and justify the recommendations for the improvement of the staff rotation in office, which favorably affects the efficiency of their performance. |
THE ANALYSES OF EXPERTS
FOREIGN EXPERIENCE
|
164–188
|
Some countries treat public-private partnerships (PPP) within public procurement legislation, whilst others adopt a specially designed PPP law to distinguish PPPs from the routine purchases of goods and services. There is no evidence to suggest which of the approaches is more efficient. Differences are visible even for highly developed economies such as the UK (no special PPP law, rather policy guidance) and the US (special PPP laws adopted in over 30 States, counting.) Does it make sense to have a special PPP legislation? If yes, what should such legislation govern? The last question seems tautological as "a PPP legislation should govern public-private partnerships", yet we claim that in order to promote economic efficiency, the law should focus on the environment that surrounds public-private relationships. We develop a model of PPP based on the system of standard contractual agreements between the government and the private sector, like the typical contracts used in public procurement. Due to the asymmetric information, some socially desirable projects are too costly to run within a standard procurement contract, this is where partnerships should help. Specific features that are needed to make those costly projects feasible, include a reduction in the information costs through a closer monitoring within the co-production, a reduction in the production costs through a lesser red tape, and extra benefits (distinct from subsidies and monetary rewards) to the private partner, arising from the cooperation with the state (e.g. reputational gains, access to new resources, etc.) In an institutional/cultural environment with [most of] these features in force, a special PPP legislation is not needed (UK and Australia are prominent examples), as there is no scope for a further reduction of the number of infeasible (costly) projects. Otherwise, a PPP law that offers the above features (e.g. by creating a dedicated PPP advisory unit) is socially desirable. |
SCIENTIFIC INFORMATION
|
189–200
|
The subject of the research is social relations in the field of self-regulation, the legal nature of the results – acts of self-regulation. The integrity of the legal system is broken not only by the contradictions and conflicts within it, but due to the fact that a significant part of the social regulation falls on the self-regulated organizations. These organizations establish rules of access to the economic markets, conditions for conducting business activity and liability for violations of these terms and conditions. In fact, they restrict the freedom of economic activity. The goal of the study is to show that in Russia there is a trend of decentralization of the legal system in connection with the adoption and the action of the self-regulatory acts. For such a decentralization to have no negative consequences, acts of self-regulation should be adopted in a specific order, based on a number of requirements as to their form and content. The article is based on the analysis of the specific acts of the self-regulating organizations and their practice: on the general requirements for the job performance; the control regulations; admission and membership fees regulations; expert surveys of the self-regulated organizations in the building sphere. The legal analysis of the procedure for the adoption of regulations was carried out. It is noted that the decisions do not always comply with the conditions of their wide discussion, publicity and openness. It was found that the most common are two approaches to the understanding of self-regulation in Russia: an economic approach and a legal one, with their similarity being established. The acts of self-regulation appear to be comparable with the local, organizational and corporate acts that have legal characteristics assigned. The legal nature of the acts of self-regulation due to the fact that they are acts of social regulation, determines the rules of conduct. In this regard, some essential requirements to the process of creation and implementation of these instruments are necessary, to their content in particular, such as legal certainty (clear and unambiguous provisions). The findings of the study can be applied in the theory and practice of economics and law in the sphere of the development of self-regulation and performance of the self-regulatory organizations in Russia. |
|
201–212
|
The article examines the experience of strategic management and planning of socio – economic development of the municipalities of the Russian North and the Arctic region for the period 2000–2012 years. 108 municipalities with a population of 20 to 100 thousand people, situated in the territories belonging to the Far North and equivalent areas has been studied. It has been found that for the period of 2000–2012 a strategic approach to the management of socio – economic development was applied in 44 northern municipalities, local authorities adopted strategic documents, and they were posted on the official Internet- sites of local governments, which allowed to group them by the date of their adoption. The first and second group was composed of the documents adopted in the early and mid 2000s, so in addition to the degree of completeness of strategic documents (the presence of the mission, goals, objectives, scenarios, etc.) we reviewed the benchmarks strategies. The third group includes strategic documents adopted recently, so we carried out only assessment of the completeness of the strategic documents, marked features of the strategies for the development of some municipalities. The analysis of all the three groups showed that in developing strategic documents, local authorities face problems and the solution of the majority of them hardly depending entirely on the local governments: lack of legal, information and personnel security, lack of a universal method for strategic planning of urban development, lack of revenue sources of local budgets. In terms of the contents of the strategy documents there is also a number of problems: a poor quality of the designed strategies, their optimistic and/or non-public nature, etc. The results can be used by regional and municipal authorities, both in the evaluation of the designed strategies, and in the formation and improvement of the development strategies that are being designed. |
|