Modern legal regulation of administrative control and supervisory procedures

Morozov Sergei Andreevich Assistant of the Department of Administrative and Financial Law of the Faculty of Law of the National Research Nizhny Novgorod State University named after N.I. Lobachevsky 603115, Russia, Nizhny Novgorod region, Nizhny Novgorod, Ashkhabadskaya str., 4 sergeymorozov@jur.unn.ru Other publications by this author

Modern Russian administrative and legal legislation is not a set of preserved, unchangeable rules, but on the contrary, it is a living matter reflecting and fixing in numerous norms changes in the social and political life of society and the state, its desire for changes and complications. As S. N. Bratanovsky and V. A. Yusupov note in their works, "human society from the earliest stages of its development impulses organizational needs" ^{[1, p. 127]}, "the space of administrative legal existence ... is in constant development, with a focus from the past through the present to the future" ^{[2, p. 67]}.

According to B. V.'s remark. According to Rossinsky, "administrative reforms have been carried out continuously since the process of government began, and such a course of events will never end" ^{[3, p. 3]}. The reform of control and supervisory activities over the past twenty years clearly confirms this thesis. Building a system of federal executive authorities, during which federal services were endowed with control and supervision functions (2004); adoption of the concept of administrative reform for 2006-2010 and its implementation; passport of the priority program "Reform of control and supervisory activities" (2016); the project "regulatory guillotine" (2019-2021), during which more than 143 thousand mandatory requirements were abolished as outdated ^[4] – one of the clearest manifestations of the reforms of state control (supervision).

However, the most noteworthy is the new law regulating the control and supervisory sphere of management activities - Federal Law No. 248–FZ dated 07/31/2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" (hereinafter - the Federal Law "On State Control"), which radically changed all control and supervisory activities. The adoption and entry into force of the said federal law entailed significant transformations in the forms of administrative control and supervisory procedures, guarantees of the rights and freedoms of citizens and organizations during state control (supervision), information support for the activities of control and supervisory authorities, but above all - profound changes in regulatory regulation.

It should be noted that the legal regulation itself is important for the administrative procedures of state control (supervision):

firstly, through regulatory regulation through the consolidation of procedural relations, the rights and obligations of participants in the administrative procedure, administrative actions and other elements, the regulatory function of law is expressed;

Secondly, it is necessary to note the preventive effect of the established rules. As noted by A.V. Martynov, "the use of administrative coercion measures, such as: bringing to administrative responsibility is not an end in itself of the administrative and supervisory procedure" ^{[5, p. 382]};

Thirdly, the availability of high-quality legal norms that establish the foundations for the organization and implementation of administrative control and supervisory procedures, contribute to ensuring legality in their implementation, and reduces administrative discretion ^{[6, p. 21]}.

Thus, large-scale transformations in the field of legal regulation of the organization and conduct of state control (supervision), the role of qualitative legal regulation in ensuring law and order, require an analysis of existing sources of administrative control and supervisory procedures/

Among the authors who have studied various issues of administrative procedures, it should be noted Yu. N. Starilov, who insists in his works on the need to adopt a special law on administrative procedures; K. V. Davydov, author of the draft federal law on administrative procedures; S. Z. Genetl, whose subject of research was administrative procedures in the context of administrative reform. It is also worth noting separately the monographs of L. L. Popov (who studied, among other things, control procedures) and A.V. Martynov, who considers administrative and supervisory procedures as the basis of administrative and supervisory proceedings. The issues of legal regulation of certain types of administrative procedures in the regional context became the subject of R. S. Tikhy's dissertation research. However, the changes in the control and supervisory sphere that we have already outlined, as well as the fact that most often legal regulation issues are raised by scientists in the context of certain types of procedures, require a new comprehensive study of administrative control and supervisory procedures.

This study was conducted using a combination of both general and private scientific methods, among which we consider it necessary first of all to identify the application of the system-structural method, as well as the modeling method, which allowed us to identify the levels of regulatory regulation of administrative control and supervisory procedures, their structure and elements.

In the course of the study, we identified four levels of regulatory and legal regulation of administrative procedures implemented during the exercise by executive authorities of their control (supervision) functions: a) the constitutional and legal level; b) federal laws; c) subordinate regulatory legal acts regulating the organization and implementation of state control (supervision); d) auxiliary and related acts.

Let's take a closer look at each of the levels.

The constitutional and legal level. This level is represented by the Constitution of the Russian Federation. According to S.A. Avakian (which is difficult not to support), society and public relations require constitutional and legal registration ^{[7, p. 25]}. The Constitution of the Russian Federation is an act of the highest legal force, compliance with the principles established by it, the rights and freedoms of controlled persons in the exercise of state control and supervision is the most important guarantee of legality, and their violation should entail the cancellation of administrative acts adopted by executive authorities of procedures based on the results of state control and supervision.

A.V. Martynov identifies, depending on the constitutional protection of human and civil rights and freedoms, three spheres of action of constitutional and legal regulation of administrative and supervisory activities:

- the first sphere is related to the activities of state executive bodies exercising administrative supervision to protect the constitutional rights and freedoms of citizens and organizations, when through administrative supervision implemented by specially created bodies – federal services, the constitutional rights and freedoms of citizens are ensured: freedom of movement, health protection and medical care, and others;

- the second sphere of constitutional and legal regulation is related to the observance of the constitutional rights and freedoms of man and citizen, as well as the legitimate interests of organizations in the exercise of administrative supervision, for example, the right to protection in all ways not prohibited by law, the right to receive qualified legal assistance and others;

- the third sphere relates to the consolidation in the Constitution of Russia of the principles of the exercise of state power, including the implementation of control and supervisory activities, which include the principles establishing the foundations of the state structure and principles consolidating the system and procedure for the functioning of state bodies, the general competence and powers of the supreme bodies of state power ^{[5, pp. 159-164]}.

Federal laws. Speaking of federal laws, it should first of all be noted that provisions regulating various aspects of the organization and implementation of state control and supervision exist in various federal laws. For example, Part 7 of Article 12 of Federal Constitutional Law No. 4-FKZ dated 06.11.2020 "On the Government of the Russian Federation" establishes the powers of the Government of the Russian Federation regarding the approval of regulations on federal ministries and other executive authorities, which include, for example, the FAS of Russia, Rosreestr, Rospotrebnadzor and other regulatory and supervisory authorities.

A number of issues related to the implementation of administrative control and supervisory procedures (competence of regulatory authorities, rules of information interaction, forms and methods of control) are fixed by federal laws regulating certain spheres of life of the state and society. Thus, the Budget Code of the Russian Federation regulates the implementation of state financial control (including the list of control objects), the Code of Merchant Shipping of the Russian Federation introduces state port control over ships located in the seaport and ships going to sea, Federal Law No. 3-FZ dated 08.11.1998 "On Narcotic Drugs and Psychotropic Substances" regulates the control of the turnover of narcotic drugs, psychotropic substances and their precursors (including reporting requirements) and so on. As one of the most "recent" laws, it is necessary to note Federal Law No. 255-FZ dated 07/14/2022 "On Control over the Activities of Persons under Foreign Influence", which regulates such elements of the administrative procedure for monitoring compliance with legislation on foreign agents as the subject, grounds for conducting inspections, types of inspections.

An analysis of even such a short list of the above acts allows us to conclude that certain elements of individual control and supervisory procedures fall within the scope of regulation of a whole range of federal laws, however, none of them defines (and should not) the entire content and structure of the administrative control and supervisory procedure. Obviously, this requires a special federal law, which today is primarily the Federal Law "On State Control".

This law was adopted pursuant to paragraph 1 of the "roadmap" of the Action Plan ("roadmap") of the "regulatory guillotine" ^[8], and entered into force on 07/01/2021. As previously mentioned above, this law has caused fundamental changes in the legal regulation of state control (supervision) and administrative control and supervisory procedures. The main results of such transformations include:

a) the new law on State control is a basic regulatory legal act regulating the organization and implementation of control and supervisory procedures, the powers of control and supervisory bodies of executive power and their officials, and the rights of officials;

b) the adoption of the Federal Law "On State Control" necessitated amendments to 138 federal laws regarding the regulation of the organization and implementation of Certain Types of state control (Federal Law No. 170-FZ dated 06/11/2021 "On Amendments to Certain Legislative Acts of the Russian Federation in connection with the Adoption of the Federal Law "On State Control (Supervision) and municipal control in the Russian Federation");

c) in addition to changes at the level of federal laws, large-scale changes also affected subordinate regulatory legal regulation, namely the gradual replacement of administrative regulations establishing administrative procedures in the control and supervisory activities of executive authorities with provisions on types of state control (supervision);

The administrative control and supervisory procedure is implemented within its structure - a sequence of alternating mandatory and optional stages ^{[9, p. 118]}. The norms of the Federal Law "On State Control" establish the rules for the organization and arrangement of each of the stages:

- preparation for control (supervisory) events – issues of planning control (supervisory) events, interdepartmental interaction of control and supervisory authorities and prosecutor's offices, and others;

- the stage of initiation of an administrative case – the procedure for making a decision on conducting a control (supervisory) event and its registration;

- the stage of carrying out control (supervisory) measures and registration of its results – regulation of the actual control (supervisory) measures, their forms, procedure, procedural deadlines and other issues. In particular, as a result of the reform, the number of forms of state control (supervision) has increased, including new forms such as monitoring procurement, inspection visit, on-site inspection ^{[10, p. 205]};

- the appeal stage – mandatory pre-trial appeal has been introduced, a list of gross violations of the requirements for the organization and implementation of state control (supervision) entailing the cancellation of adopted acts is provided;

- the stage of execution of the decision – resolution of issues related to the execution of decisions of supervisory authorities, postponement of execution of decisions, consequences of non-execution of the decision.

Thus, the Federal Law "On State Control" really regulates almost all issues of establishing and implementing administrative control and supervisory procedures, and as for, for example, mandatory pre-trial appeal and the introduction of information technologies into control and supervisory activities, perhaps it is worth agreeing with D. C. Fesko's opinion that this law is a breakthrough from the standpoint of ensuring the rights of controlled persons, establishes a new coordinate system in the relationship between control and supervisory authorities and controlled persons ^{[11, p. 163]}.

Nevertheless, speaking of the new law, it is impossible to ignore the "old" one, especially one that continues to be in force at least until 01.01.2025. We are talking about Federal Law No. 294-FZ dated 12/26/2008 "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the exercise of State Control (supervision) and municipal Control".

This law established the types of administrative supervision carried out in the Russian Federation (federal and regional state control or supervision), as well as the elements that we highlight in control and supervisory procedures, including the principles of state control and supervision; the procedure for organizing and conducting inspections of legal entities, individual entrepreneurs by state control bodies - that is, the procedure implementation of the control and supervisory procedure; the legal status of the participants in the procedures, including the rights, duties and responsibilities of state control (supervision) bodies, their officials, controlled entities, guarantees of protection of rights and freedoms; issues of interaction of public authorities during inspections.

Subordinate regulatory legal acts regulating the organization and implementation of state control (supervision). This level consists of regulations on the types of state control (supervision) and administrative regulations, which detail various aspects of administrative control and supervisory procedures.

Regulations and administrative regulations are acts detailing various practical aspects of the activities of executive authorities in the exercise of their control and supervisory functions, including the direct subject of control (supervision), the composition of control (supervisory) measures and administrative actions that can be implemented in the process of control (supervision), the powers of control and supervisory officials.supervisory authorities, deadlines for the implementation of administrative actions and others.

The obligation to adopt administrative regulations governing the organization and implementation of state control (supervision) is established in paragraphs 2 of Article 2, paragraph 3 of Article 4 of Federal Law No. 294-FZ of December 26, 2008 "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control". The administrative regulations developed by the supervisory authorities in accordance with their competence fix the terms and sequence of administrative procedures implemented in the implementation of the type of federal state control (supervision). As a rule, the main part of the regulations contains five sections: general provisions, requirements for the procedure for exercising state control, the composition of administrative actions, the procedure for monitoring the performance of a state function, and the rules of appeal.

Administrative regulations played a huge role at the dawn of the formation of the system of legal regulation of control and supervisory procedures. The Government of the Russian Federation paid serious attention to the development and implementation of administrative regulations. According to S. E. Naryshkin (who held the position of Head of the Government Staff – Deputy Chairman of the Government of the Russian Federation from 2004 to 2008), "the program includes the introduction of about 500 administrative regulations in the work of almost all federal executive authorities. And we have to complete this work in three years" ^[12]. It is worth noting that we can talk not only about the completion of this work, but also about its over–fulfillment: in the period 2006-2015 in Russia, executive authorities at various levels adopted more than 115.5 thousand administrative regulations (more than 550 - at the level of federal executive authorities) ^[13].

In accordance with Part 2 of Article 3 of the Federal Law "On State Control", the procedure for the organization and implementation of federal state control (supervision) is established by the regulation on the type of federal state control (supervision) approved by the President of the Russian Federation or the Government of the Russian Federation. The regulations consist, as a rule, of standard 5-6 sections, for example, the Regulation on Federal State Control (Supervision) in the field of circulation of Biomedical cell products consists of 5 sections: general provisions; risk management of harm (damage) to legally protected values in the exercise of state control; prevention of risks of harm (damage) to legally protected values; implementation of state control; appeal against decisions of state control bodies, actions (inaction) of their officials (Decree of the Government of the Russian Federation dated 30.06.2021 No. 1062).

Since 2021, systematic work has been underway to replace administrative regulations with appropriate provisions, currently about 80 regulations are in force (all of them approved by resolutions of the Government of the Russian Federation). However, it should be noted that at present the provisions have not completely replaced the regulations, about 100 administrative regulations continue to be in force. In addition, when analyzing the current administrative regulations, acts were established that have not been formally abolished, although the corresponding provision on the type of state control (supervision) has already been adopted. These include, in particular, the administrative regulations for the implementation by the Ministry of Economic Development of the Russian Federation of state supervision over the activities of tour operators and associations of tour operators in the field of outbound tourism (Order of the Ministry of Economic Development of the Russian Federation dated 04.10.2019 No. 636). In 2021, the decree of the Government of the Russian Federation approved the regulation on federal state control (supervision) over the activities of tour operators and associations of tour operators in the field of outbound tourism (Decree of the Government of the Russian Federation dated 30.06.2021 No. 1086). In our opinion, this situation represents a temporal conflict of normative legal acts, and despite the apparent ease in overcoming it, we consider it necessary to recommend that federal executive authorities cancel unused acts with their orders.

Supporting and related acts. The last level of regulation of administrative control and supervisory procedures consists of subordinate regulatory legal acts that do not directly contain procedural rules, but nevertheless have an impact on the procedure and timing of the implementation of control and supervisory administrative procedures.

Due to the large number of such acts, we will leave out the detailed description of their structure, limiting ourselves to listing their types. Such subordinate regulatory legal acts should include:

- indicative indicators;

- rules for the formation and preparation of annual plans for control (supervisory) activities;

- rules and forms of interaction between control and supervisory authorities and prosecutor's offices;

- comprehensive lists of information that may be requested by officials;

- lists of acts containing mandatory requirements;

- test sheets;

- by-laws regulating special restrictions in the exercise of state control (supervision).

Having considered the system of sources regulating administrative control and supervisory procedures, it should be noted that there are some critical comments in the scientific community:

Firstly, during the existence of Federal Law No. 294-FZ dated 12/26/2008 "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the exercise of State Control (Supervision) and Municipal Control", exemptions from its scope of regulation of types of state control (supervision) were constantly growing. This also applies to the new law. According to experts, "the flexibility of the basic law on control seems excessive" ^{[14, p. 73]};

secondly, there are claims to the logical and legal consistency of the Federal Law "On State Control". A.V. Martynov notes "flirting" with terminology, the presence of numerous names of control and supervisory activities: "state control (supervision)", "state control", "control" ^{[15, p. 52]};

Thirdly, we will additionally emphasize the formal effect of some administrative regulations, although a corresponding provision has already been adopted on the subject of their regulation.

The search for ways to eliminate these comments should be the subject of separate studies. Regarding, for example, by-law regulation, we consider it necessary to abolish administrative regulations that coincide in terms of control with the provisions on types of control (supervision) in order to avoid legal conflicts and confusion. In our opinion, it is necessary to approach changing the provisions of the Federal Law "On State Control" more carefully. For example, D. S. Fesko proposes to expand the provisions of Part 2 of Article 91 of this law, which establishes a list of gross violations of the requirements for the procedure and organization of state control (supervision), by including among them the issuance of instructions or proposals to entrepreneurs to carry out control measures and actions at their expense; the demand for documents, information earlier than the date the beginning of the inspection and others ^[16]. However, in our opinion, amendments to the Federal Law "On State Control" should be considered, inter alia, from the point of view of stability of legal regulation, and excessive expansion of the list of gross violations reduces that.

Concluding this study of the issues of regulatory regulation of administrative control and supervisory procedures, we consider it necessary to draw a number of brief conclusions.

The current system of sources seems to us to be very complex and thoroughly regulating aspects of the establishment, execution and implementation of control and supervisory procedures: constitutional regulation establishes the basic guarantees of human and civil rights and freedoms in the exercise of state control (supervision), federal laws (and above all the Federal Law "On State Control") They contain basic norms, which are detailed in the regulations on the types of state control (supervision) and administrative regulations. Additional norms related to issues of interdepartmental interaction, planning of administrative control and supervisory procedures, and the establishment of mandatory requirements are regulated in a variety of supporting acts: orders, rules, etc.

We believe that it is currently important to maintain the stability of the legal regulation system in order to form a sustainable law enforcement practice. Thus, we consider it possible to resolve the existing criticisms regarding the legal regulation of the establishment and implementation of administrative control and supervisory procedures by "fine-tuning" - making changes primarily to the regulations on state control (supervision) and administrative regulations.