On the Principles of Administrative Law and Administrative Activity

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

The question of the principles of law is not new at all, but we have to return to it due to the need to develop legal doctrine, as well as to prepare proposals for improving administrative legislation. As L.E. Korobka noted, "... any sphere of public life, as well as the legal regulation of relations arising in society, should function on the basis of the principles of law" ^[1].  It should be noted that the principles occupy an important place in the system of legal regulation. At the same time, the principle is not a static element, it improves the quality of law enforcement activities.   It must be recognized that the general theory of law as a whole has developed a system of universal (doctrinal) principles of law, which, in their essence, have a constitutional and social basis.  Meanwhile, it should be noted that not all branch legal disciplines managed to reach a scientific compromise, and thereby develop a coherent system of legal principles that would underlie the theory and practice of the relevant area of legal regulation. Based on this, let's pay attention to some points of view. As V.I. Borodyansky noted, "... the principles of civil law are determined by the objective needs of the development of economic relations and officially fixed basic principles (ideas) that determine the essence and content of the structural elements of this branch of law, as well as activities for their legislative consolidation and implementation" ^[2]. As for the principles of administrative law, they are also defined as an institutional category.

From the point of view of V.A. Yusupov, "... the principles of administrative law are the main principles (complexes of ideas) that characterize its content, consolidate the laws of development and determine the mechanism of administrative and legal regulation of managerial relations" ^[3].

S.D. Knyazev, describing the principles of administrative law, noted that "... the principles testify to the independence of the branch of law, perform the role of the main supporting structure in it, and are also a key component of the subject of administrative law" ^[4]. This position emphasizes the doctrinal functionality of the principles of administrative law as an industry-forming element. Based on this, the principle has not only theoretical, but also practical significance in the mechanism of law. As I.A. Admiralova noted, "... the question concerning the principles of administrative activity cannot be attributed exclusively to a theoretical problem, since this problem is of very practical importance" ^[5].

We can agree with the indicated position. Indeed, the principles determine the content of the branch of law, moreover, they answer the question of what state this branch is in at the moment, as well as what actual problems are facing the application of the norms of administrative law. The principles can also determine the purpose of legal regulation, the achievement of which is in some perspective. Principles are a fairly stable and conservative legal education, although changing political and social realities make it necessary to formulate new (special) principles of legal regulation, which are of an administrative nature. Meanwhile, the intensive development of administrative legislation does not allow us to give a timely doctrinal assessment of the available normative material reflecting certain principles, since the next layer of administrative law norms immediately appears. It seems that the analysis of legal principles requires some time, as well as well-established positions regarding the created normative material.                

In the recent past, the principles of criminal law have been studied quite meaningfully. Thus, V.D. Filimonov noted that "... the establishment of the principles of criminal law and the definition of effective forms of their legal expression in criminal legislation is the creation of tools with which the task of its further improvement can be solved" ^[6]. The classic work in which the principles of criminal law are revealed is the study of S.G. Kelina and V.N. Kudryavtsev. Thus, the authors presented not only revealed the essence of the legal principles of this branch of law, but also proposed their system, which may well be taken into account in various areas of legal regulation, highlighting such principles of criminal law as: "... legality; equality of citizens before the law; the principle of personal responsibility; the principle of guilt; the inevitability of responsibility; justice of responsibility; humanism; the principle of democracy" ^[7].

As you can see, even such a "conservative" branch of law as "criminal law" is influenced by general constitutional principles, as well as principles that have not yet received their proper regulatory consolidation, namely, we are talking about the principle of "justice". The principle of "justice" or "social justice" is an attribute of the legal and social state. Of course, we must admit that justice is an evaluative and subjective category, but conceptually the meaning of this principle is clear – this principle has nothing to do with the principle of "social equalization" or something similar. Justice means various opportunities, adequate legal regulation, as well as ensuring human dignity. "Justice" as a social value is spoken about in various contexts, quite often the concept of justice is used in relation to the punishment applied. From a social and, of course, legal point of view, it is very important that the applied punishment (criminal, administrative, disciplinary) is fair, this gives legal meaning to the prescribed punishment. Without taking into account social justice, legal regulation is formal, and this generates nihilistic views, and also leads to the "alienation" of a person from the state. In this regard, one of the principles of law, and, accordingly, the principle of administrative law, should be the principle of social justice.                          

Thus, in the administrative and legal reality, it is objectively necessary to act the principle of social justice in various aspects of its manifestation - both in the implementation of positive administrative actions and in the application of administrative coercion. A.P. Korenev points to the functionality of the principle of social justice in the administrative activities of the Department of Internal Affairs: "... social justice, as a principle of activity, is manifested in the fact that any citizen has an equal right to appeal to the internal affairs bodies" ^[8]. It seems that in this case it is necessary to talk not about social justice as such, but about the principle of legal equality. This principle (equality)  in its capacity, it complements the principle of social justice, which should have a broader effect and interpretation. The "principle of justice" has its own meaning in tax law. As B.Z. Uvaysaev noted, "... justice in tax law reflects a certain pattern of legal regulation of taxation, according to which such a function of taxes as the ability to provide social support to low-income segments of the population with the simultaneous application of differentiated and progressive taxation of citizens receiving high and ultra-high incomes should be taken into account" ^[9].                                           

In administrative law, unfortunately, it was not possible to develop a system of universal (key) principles of this industry, this issue is waiting for its researcher in the future, now we will pay attention to the designated problem very schematically, due to the scope of this study. But before considering the principles of administrative law and administrative activity, it is necessary to say a few words about what is meant by such a category as "legal principle", it can be noted that quite a lot of points of view have been expressed on this issue.

Thus, V.M. Vedyakhin stated the thesis that "... principles are understood as the main provisions of the theory of worldview. In addition, the principles indicate the goals of legal regulation, so they can be considered an element of the legal system of any society" ^[10]. M.F. Zabalueva also wrote that "... the principle is an element of essence, acts as an installation, a provision on the implementation of which the achievement of goals directly depends on certain legal means. This explains the functional significance and mandatory implementation of the principle. Thus, the direct focus of the principle on achieving the stated goal and the obligation of its implementation in their entirety represent its main features" ^[11].

We can agree that the principle sets a goal for legal regulation, in addition, the features of the "principle" as a legal category include the fact that it somewhat idealizes legal and social reality, but this quality of the legal principle cannot be considered negative. The principle of law allows us to take into account the objective and subjective essence of law. In this sense, we agree with E.V. Skurko, who noted that "... the principles of law allow us to ensure the dialectical unity of objective and subjective law, in other words, to reveal and reveal the essence of law" ^[12].

This is partly the functionality of the legal principle. The corresponding qualities make it possible to strengthen the mechanism of law.   

We emphasize that the principles of administrative law do not exist independently from other legal principles, moreover, various legal processes take place in the system of the industry under consideration, causing an objective need to develop algorithms for the interaction of administrative and legal institutions with each other. And this process, as the experience of scientific research shows, makes it difficult to form universal (basic) principles of administrative law, and one has to deal with the principles of administrative activity or with the principles of the corresponding direction of legal regulation. Thus, in the doctrine of administrative law, attention is drawn to the principles of proceedings in cases of administrative offenses, which are disclosed through their functions. A.A. Khorev notes that these principles "... help fill a gap in the legislation on administrative offenses; establish general requirements for proceedings in cases of administrative offenses; in addition, legal principles can guarantee ensuring the rights of participants in the relevant proceedings" ^[13].                    

Thus, it can be concluded that the principles of law, as an institutional category, have regulatory properties, that is, principles are important for the operation of law as a whole. However, initially, the "principles of law" is a worldview definition, which eventually became official, and therefore mandatory. Violation of the principle of law makes law enforcement work illegitimate, both from a social and legal point of view. And therefore it can be said that violation of the prescription of the legal principle is the most serious offense. The functionality of legal principles is that they form a legal ideology, and also contribute to the adoption of a legal decision based on the analogy of law or analogy of law. Although it should be noted that this situation is quite rare.

As already noted, there are doctrinal principles in the system of law, the function of which is the formation of legal ideology, there are constitutional principles that influence the formation and development of sectoral principles and principles on which the content of large (important) legal institutions is based. For example, in administrative law, the key elements of this branch of law are: the institute of public service, the regulation and organization of which has its own principles, the institute of administrative responsibility, which also contains a whole system of material and procedural principles related to the implementation of this type of responsibility. It should be noted that the content of the "institutional" administrative principles is directly influenced by the principles of the branch of law as a whole.

There are intersectoral principles that do not perform the same functions in different branches of law. Thus, the principle of federalism underlies the formation of some branches of public law. As L.M. Karapetyan noted, "... the federal structure presupposes equality and independence between the federation and its subjects in the exercise of their constitutionally defined subjects of competence and competencies" ^[14]. 

The principle of federalism in administrative law allows to observe federal and regional public interests. For example, a system of legislation on the state civil service at the federal and regional levels has now been formed, in this case, the principle of federalism differentiates the civil service and creates two layers of relevant legislation. In the field of legal regulation of finance, the principle of federalism also applies, so in budget law, they talk about budget federalism, federal and regional taxes are established in tax law. In this case, the principle of federalism makes it possible to redistribute revenues and expenditures of budgets of various levels, to provide budget assistance to regions. The division of taxes into federal and regional payments makes it possible to implement a balanced tax policy, as well as to ensure the regulation of economic policy taking into account regional specifics and many other factors.

The examples above show how the same principle plays a different role in legal regulation. But this does not detract from the importance of intersectoral principles of legal regulation, but shows their necessity in the mechanism of legal regulation. For administrative and legal regulation, it is necessary to take into account intersectoral principles. This is due to the fact that this regulation concerns a wide variety of relations, and not only of a public legal nature. It is an axiom that intersectoral legal regulation is a certain compromise of private and public interests. This approach is clearly seen in complex legal entities, in particular such as: "business law", "land law", "concrete law", etc. Complex legal regulation influences the formation of a system of principles of a particular branch of law, and also contributes to the emergence of new principles.                                                                                                       

It should be noted that the content of sectoral principles and principles of an intersectoral nature that are involved in this branch of law is influenced by the subject of legal regulation. In this regard, the principles of administrative law are influenced by the subject of the relevant branch, which concerns managerial relations, police relations, as well as the law of administrative justice. All these areas of legal regulation should be reflected in the system of general principles of administrative law. Speaking about the principles of administrative law, it should be noted that this is an important component of the theory of the branch of law under consideration. As already noted, the principles enrich this branch with humanitarian and legal meaning.

In this regard, it is necessary to substantiate some provisions that, by their properties and qualities, are principles of administrative law, but before that we will give several points of view regarding the phenomenon under consideration. Thus, K.S. Belsky noted that the principles of administrative law can include: "... legality; scientific validity and accessibility for understanding by the broad masses of the people; national structure of administrative law; federalism and unity of the executive power system; prevention of offenses; guaranteed assistance and protection of citizens' rights" ^[15].                  

A.P. Korenev refers to the principles of administrative law: "the principle of rule-making democracy; equality of citizens before the law and law enforcement; mutual responsibility of the state and the individual; federalism; humanism; legality" ^[16]. It seems to us that the principle of democracy in administrative law should not be confined only to the issues of rulemaking. This principle should concern the most diverse aspects of administrative activity, and among other things, democratic principles in management contribute to the development of collegiality, as well as reduce the boundaries of unreasonable unity of command in making managerial decisions.                    

In turn, S.D. Knyazev refers to the principles of administrative law: "... ensuring the right of citizens to participate in public administration; vertical subordination of state bodies and civil servants; unity of the basic requirements for public administration and the activities of civil servants; responsibility of the state apparatus; taking into account the achievements of science in the organization of public administration" ^[17].     

These positions are very important from the point of view of the development of the methodology of administrative law, as well as the doctrine of the relevant issue. Meanwhile, it should be noted that the principles of administrative law are not a technical enumeration of prescriptions that, by their properties, can be classified as a "principle". The principles form a certain system and outside of this system their regulatory potential is very insignificant. It should be noted that the principles of some, one might say, large institutions of administrative law are currently being investigated. So, S.M. Skvortsov at one time gave an analysis of the principles of imposing administrative penalties, and pointed out that they have a special place in the system of principles of administrative law. Among the principles of imposing administrative penalties, according to the designated author, should be attributed: "... the principle of definiteness of the boundaries of punishment; concreteness of punishment; individualization of punishment; economy of punitive measures" ^[18].

The principle of economy is often mentioned in administrative law, and its use is carried out in various contexts. I must say that saving resources is always good, but this saving should not undermine the rule of law and order. Various administrative regulations provide for the time of provision of public services. On the one hand, this is correct, it is designed to intensify the process of interaction between a citizen and an official, and on the other hand, such time savings can cause harm for careful work. And in this sense, the principle of economy will not work.

The scientific literature also talks about the principle of procedural economy, this principle is reflected in some administrative proceedings. Thus, Y.S. Adushkin, in the principle of procedural economy, which takes place in disciplinary proceedings, identified three principles: "... speed, simplicity and cheapness" ^[19]. Of course, it is necessary to approach these principles reasonably, the terms of the disciplinary investigation can be very long, and the disciplinary proceedings themselves require material and organizational costs, which should not be neglected in order to save money.

In addition to the principles of the institute of administrative responsibility, the principles of public service are investigated. Thus, F.B. Magomedov "... highlighted the political, legal and operational principles of public service. Political and legal principles determine the place and social purpose of the institute of public service. Operational principles of public service are aimed at the implementation of utilitarian tasks of public service" ^[20]. These points of view speak about the functionality of the principles of administrative law, which stand out in its structural institutions.

The system of principles of administrative law is formed around the subject of this branch of law, in this regard, it can be noted that the formation of principles is influenced by the specifics of the relevant relations. In addition, the system of principles of administrative law should be built on the basis of the system of this industry. Thus, it can be said that in the system of principles of administrative law there are principles of a managerial nature, principles of a police nature, as well as principles of the law of administrative justice. The number of these principles is very significant.  Meanwhile, the general principles of administrative law and administrative activity include such principles as: consideration of national (soil) interests in the implementation of administrative policy; the inadmissibility of excessive administration, both in a positive and protective form; democratization of administrative activity throughout the vertical of its implementation; reasonableness and controllability of administrative discretion; the principle of administrative interaction and coordination; the principle of fairness of administrative decisions; the principle of administrative justice. Next, let's say a few words about the highlighted principles.

So, in the management process, it is very important to take into account national (soil) interests. This emphasizes the identity of the state in general and public administration in particular, allows us to preserve the traditions of management, as well as not to get into ambiguous situations in the event of crisis situations, as well as complication of interstate cooperation. It will also protect public administration from the penetration of various kinds of ideas regarding the formation of a service state, etc.

The inadmissibility of excessive administration, both in a positive and protective form. It is known that excessive administration constrains reasonable "creative initiative", undermines the existence of diversity of opinion, hinders the development of economic initiative, forms the ground for various abuses, and also leads to excessive administrative coercion. All of the above hinders social development.                

Reasonableness and controllability of administrative discretion.  Administrative and police management is impossible without the right of discretion, this right makes it possible to choose the most effective option of behavior, to make a balanced management decision. In this regard, discretion is necessary for administrative activities, but this discretion must have objective boundaries and be under control.

The principle of administrative interaction and coordination. In legal regulation and administrative activities, everything interacts. As noted by A.P. Ipakyan and K.S. Gevorgyan, "... interaction is one of the essential manifestations of management, because management is ensuring the consistency of joint activities" ^[21]. In this regard, the process of both vertical and horizontal interaction is necessary in administrative activities. This process is objective, and therefore the principle of interaction can be considered one of the key ones in administrative activities.

The principle of administrative justice can improve the quality of managerial work, take into account the urgent needs of a person. This principle will help to make the right decisions, both of a positive and protective nature, this will increase the confidence of citizens in the activities of the state. This is the general characteristic of the principles of administrative law and, accordingly, administrative activity.