Once again about Administrative Legal Relations

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 article was prepared with the information support of the Consultant Plus company

 The question of administrative legal relations is not new, but from time to time it is necessary to turn to dogmatics and analyze theoretical categories and constructions. This is necessary both for the development of the theory of the relevant issue, and for the development of proposals for improving legislation. One of the classic topics of the general part of administrative law is the question of administrative legal relations. It should be noted that the problem of administrative legal relations is often associated with a discussion regarding the subject of this branch of law. The branch of law is a rather complex social education, in this regard, K.S. Belsky, correctly, noted that "... it is difficult to find a branch of law whose subject of regulation would be confined to one type of social relations and would not have its varieties. Practically every branch of law has the first (main) level of public relations and other levels (varieties) – derived public relations that are subject to regulation" ^[1].

The subject of administrative law is not an exception in this sense, and therefore in its content it is possible to identify key relationships that clearly identify the subject of this industry and secondary relationships arising from complex legal regulation. The latter administrative relations, for example, arise in the organization of labor (labor activity), environmental protection, regulation of marital and family relations, etc. And therefore, the emphasis solely on the managerial component of the administrative legal relationship does not look quite convincing today. Thus, A.P. Korenev noted that "... administrative and legal relations are public relations regulated by the norms of administrative law, developing in the field of management" ^[2]. G.I. Petrov also wrote at the time that "... administrative and legal relations are public relations regulated by the norms of law, developing in the field of public administration and public administration" ^[3].

As Yu.M. Kozlov noted, "... the administrative-legal relationship is a managerial social relationship regulated by the norm of administrative law, in which the parties act as carriers of mutual rights and legal obligations established and guaranteed by the administrative-legal norm" ^[4]. It should be noted that the author formulated this definition back in 1976 ^[5] and in modern realities (2001) has not changed the approach to its understanding. Quite understandable,  that a legal relationship is a legal relationship of the parties (subjects), expressed in mutual rights and obligations, in our case implemented in administrative and legal reality, this reality goes beyond the boundaries of state (public) management, and, consequently, the implementation of administrative legal relations is not limited only to the sphere of management. It can be noted that in the Soviet legal doctrine, the position of the action of administrative legal relations outside the management system was justified, in particular, the concept of relations related to the implementation of administrative responsibility measures was developed. Thus, L.V. Koval substantiated the concept of an administrative-tort relationship arising and developing in connection with the commission of a misdemeanor and bringing to administrative responsibility ^[6].

The implementation of measures of administrative responsibility and related administrative and coercive means generates a whole system of relations of both material and procedural nature, and these legal relations, based on their functionality, cannot be attributed to managerial relations. By their nature, these relations are of a protective police nature, while in these relations there are specific principles whose function is to ensure the requirements of legality in the application of administrative (police) coercion. It should be noted that a serious protective component is hidden in administrative legal relations. As G.A. Tumanov noted, "... from the total mass of administrative legal relations, protective relations can be distinguished. These relations arise on the basis of protective norms and as a result of a committed offense. The peculiarity of these relations is that the rights and obligations of their participants arise at the time and after the commission of an administrative offense" ^[7].                         

Administrative legal relations are integrated into various spheres of social reality, which in particular relate to police activities. Probably, it cannot be said that a police officer, delivering a violator who is in a state of strong alcoholic intoxication to the department of the Ministry of Internal Affairs, manages an insane person who obviously does not understand what is happening. It is no coincidence that it is determined that in "... the term of administrative detention of a person in a state of intoxication is calculated from the moment of his sobering up" (Article 27.5 of the Administrative Code). Sobering up a person is necessary to obtain from him the necessary "intelligible" explanations, drawing up a protocol on an administrative offense against him, giving him the opportunity to get acquainted with the necessary documents, as well as to guarantee him the right to protection (Article 25.1 of the Administrative Code).     

As it seems, management presupposes the presence of direct and feedback links of this process, as well as the conscious and volitional state of its participants. In the indicated example, there is not a managerial attitude, but a police attitude, which is the subject of administrative law. The police attitude also has an imperative, but it must be said that in policing there are also positive relations associated with the provision of public services and police assistance.               

These provisions tell us that the study of administrative relations "refreshes" the view on the subject of this industry, and also allows us to see how widely the norms of administrative law have spread, as well as how many participants in these legal relations have been formed today. In addition, the view of the dogmatic (conservative) category, which is "administrative legal relationship", is changing. 

It can be noted that the theory of legal relations attracts the attention of representatives of public law science. Thus, M.V. Karaseva writes that "... financial legal relationship is a category of financial law. A financial legal relationship is a social relationship regulated by the norms of financial law. Also, these norms regulate relations related to the implementation of financial activities of the state" ^[8]. Financial activity is quite substantial in nature, it is in this activity that the meaning of financial law lies, however, it should be noted that the designated activity is a kind of administrative activity. It is administrative activity that is the object of administrative law. The object of legal regulation is a key component of legal regulation, this element of the legal relationship determines the rights and obligations of participants (subjects) of these legal relations. The object of a legal relationship is quite complex, the object can be the behavior (action or inaction) of a person, as well as things (property) about which a legal relationship arises. As V.N. Lapshin noted, "... an object is a certain part of objective reality, such a part of it that has entered into a practical and cognitive impact with the cognizing subject and which the subject can distinguish from the entire surrounding reality. An object means everything that exists independently of the will and consciousness of people" ^[9].

The object in law enforcement practice is used in a variety of contexts, the object is an element of the offense, in this case, the object indicates that it is under legal protection, in the stability of the work (functioning) of which the state is interested. In other cases, the object is something about which the corresponding legal relationship arises, the object to a certain extent dictates which legal relationship will arise, material or procedural, regulatory or protective (police), property or non-property relationship. Note that an administrative legal relationship will not arise by itself in order for a rule of law to begin to work, which fills a social relationship with legal content, conditions are necessary, which are called a legal fact in the doctrine. According to the established tradition, a legal fact is a vital (professional) circumstance with which the law connects the emergence, change or termination of a legal relationship. Legal facts are quite diverse, as a rule, they are divided into events and actions. Considering the functionality of the legal fact, it can be noted that this element occupies a key place in the emergence of an administrative legal relationship. In this regard, S.A. Zinchenko, correctly, noted that "... legal facts play a central essential role in the emergence, movement, termination of law in all its forms and modifications" ^[10].                                                        

It is an axiom thesis that an administrative legal relationship is a kind of legal relationship in general, and a legal relationship is a social relationship that is clothed in a legal form. Social attitude is primary, and then the action of a legal norm generates a legal relationship. In this regard, the thesis of Y.K. Tolstoy seems quite interesting, who noted that "... the process of the emergence of a legal relationship is inseparable from the process of the formation of the social relationship itself" ^[11]. Legal relations in general and administrative legal relations in particular are an attribute of the state. And therefore the thesis is true that "... legal relations are relations in connection with law, on the basis of law. They arise together with natural rights and obligations, and with the advent of the state, the most important of them receive legislative formalization" ^[12].                                                  

It is quite obvious that the public attitude "in its pure form" does not generate legal consequences. And therefore K.S. Belsky is right when he says (using the example of a financial legal relationship) that "... it is a financial legal relationship that indicates the transformation of a duty into an act of concrete behavior" ^[13].      

Despite the large number of legal norms, the "excessive" bureaucratization of the management process, there are social relations that do not need legal regulation, this is due to the fact that not all public relations, including those developing in the field of public administration, can be regulated by the norms of law.    

As has already been emphasized, a legal relationship is an action of a legal norm, while the norms of law are different, which determines the diversity of legal relations. These provisions are key to the disclosure of the essence of the administrative legal relationship, as well as the definition of the types of these relations. Legal relations are a very dynamic element of the mechanism of law, which gives the subjects of this relationship the necessary scope of rights and legal obligations. In this regard, I.I. Veremeenko is right when he says that "... legal relations not only fix the circle of persons who are currently subject to legal norms, but also put them in a certain position in relation to each other, characterized by the presence of certain rights and legal obligations. This, in turn, determines the legal status of a citizen, body, organization" ^[14].                               

It has already been noted that the Soviet doctrine of administrative legal relations indicated exclusively that these relations are of a managerial nature, or they develop in the sphere of state or public administration. The geography of the emergence and development of administrative legal relations is quite wide, moreover, these relations are closely intertwined with civil legal relations. It should be noted that administrative and contractual relations have a certain specificity, the dispositivity necessary for them is traced in these relations, these relations are based on the principles of equality of the parties, as well as on a certain mutual "benefit".

Today we can already say that the administrative legal relationship is filled with a certain economic meaning, and thus it has a property character. This is manifested in the management of state property, the implementation of contractual relations for the supply of goods and services for state needs, as well as in the implementation of administrative penalties, the consequences of which are of a property nature. It should be noted that the legal doctrine for the most part ignored the fact that administrative legal relations are of a property nature.

The main emphasis in the understanding of administrative relations has always been on the fact that the relevant relations are of an imperious nature. This quality is inherent in administrative legal relations, but it should be noted that this property of the relevant legal relations is far from key. Even with the authority (authority), the subject of management will not be able to achieve the necessary managerial result without taking into account other social and legal factors, namely the election of adequate methods of managerial and legal influence.

It has already been pointed out that administrative legal relations are not only relations of a managerial nature. Administrative legal relations are formed in connection with security, it was these relations that were initially the subject of attention from the side of law and these are relations of a police nature. The concept of "police attitude" is not used in the doctrine, despite the fact that in the studies of the Soviet and post-Soviet periods attention was paid to the problems of administrative legal relations that develop in the field of public order protection and public safety. An administrative legal relationship in the sphere of public order is nothing more than a police relationship. The indicated administrative legal relations have been thoroughly investigated, however, without indicating that these relations are of a police nature. In this context, let us pay attention to the work of N.I. Budenko, who studied the legal status of citizens in the sphere of public order. As the designated author noted, "... the essence of the administrative and legal status of citizens in the sphere of public order is manifested in the fact that it expresses the social role of the individual in this sphere of public administration" ^[15].

Of course, one should not reduce the essence of public order to public administration, nevertheless, it is significant that the legal position of a citizen in the police reality has certain specifics. There is no doubt that the category of "public order" is a significant police concept. Considering this, I.A. Ivanova considered guarantees of citizens' rights in the field of public order and these guarantees include guarantees of a police nature. Thus, this author noted that "... the administrative and legal protection of the subjective rights of citizens in the field of public order is a control or supervisory activity. The purpose of administrative and legal protection of subjective rights of citizens in the sphere of public order is to ensure their lawful implementation in public places, and in cases of violations of these rights - their protection" ^[16].         

In the police sphere of social reality, police relations of both a positive and a coercive nature arise. In this regard, the social status of police relations in the system of administrative legal relations is significant. Administrative legal relations related to the protection of public order, or ensuring the rights of citizens in public places should be called police relations, while these relations can be of a very different nature. Regarding these relations, S.B. Abulgazin noted at the time that "... administrative and legal relations for the protection of public order are understood to be regulated by the norms of administrative law public relations that develop in the field of public order protection. The content of these relations is the subjective rights and obligations of their participants, as well as the regulatory objectives provided for in the relevant norms of administrative law" ^[17]. 

 As V.N. Lapshin noted, "... all administrative legal relations arising in the activities of internal affairs bodies can be divided into regulatory relations and protective relations" ^[18].  This approach is traditional. Regulatory police relations are of a positive nature, the external aspect of these relations is manifested in the implementation of a set of preventive administrative measures, as well as related to the provision of police assistance, the provision of police services, etc. Regulatory administrative legal relations arise in connection with the service, the implementation of a set of organizational and technical actions.

Protective relations reveal the essence of police work, in the course of these relations, administrative supervision (control) is carried out, measures of direct administrative coercion are applied, etc. These relations are of a police nature in their functionality, and as already indicated, they should be called police relations in administrative law. This will emphasize the police essence of administrative law, and will also correspond to the "true state of things". Police relations are not always relations of power and subordination. These relations, as already mentioned above, can be horizontal in nature, in which the parties occupy legally equal positions. In general, all administrative legal relations, regardless of where they arise, should be balanced, and also take into account the specifics of the sphere of their origin and development.

Protective relations are not only relations of a police nature, these relations make it possible to implement administrative and legal means of protecting and protecting the rights of citizens. Thus, this makes it possible for the existence and implementation of relations related to the law of administrative justice. Within the framework of this right, relations are implemented, both in judicial and pre-trial form, while the relevant relations are regulated by the norms of administrative law. As A.P. Korenev noted, "... administrative legal relations presuppose such behavior of their subjects, which corresponds to the requirements expressed in administrative legal norms. In case of violations of these requirements, there is a need for their protection, which is carried out administratively or judicially" ^[19].

At the end of the consideration of the above issue, it should be noted that administrative-legal relations are a rather complex legal phenomenon, the effect of which is not limited only to the sphere of public administration, when analyzing these relations, it should be understood that these relations arise in the sphere of police activity, as well as during the implementation of the right of administrative justice.