On the issue of the essence of administrative and legal regimes of state control (supervision)

Golubeva Tat'yana Mihailovna Lecturer; Faculty of Law; Federal State Autonomous Educational Institution of Higher Education 'National Research Nizhny Novgorod State University named after N.I. Lobachevsky' 603093, Russia, Nizhny Novgorod region, Nizhny Novgorod, Fruktovaya str., 9/3 golubeva_tatjana@mail.ru Other publications by this author

One of the most important goals of the reform of control and supervisory activities, which has been carried out over the past years, is to reduce the administrative burden on businesses. To date, many attempts have already been made to reform this area. The vector for new development is the understanding that endless inspections of business entities do not bring proper results. The transition of control and supervisory activities to a risk-based model is the main task of today's stage. The organization of state control (supervision) should take into account the risk categories of harm caused by controlled entities. This becomes possible if state control (supervision) is carried out using administrative and legal regimes of state control (supervision), which proves the relevance of this study.

To date, the issues of the essence of administrative and legal regimes of state control (supervision) have not been investigated in the theory of administrative law. The very concept of administrative and legal regimes of state control (supervision) is also insufficiently developed in a scientific sense. Moreover, no conclusions have been drawn in science on the principles and features of state control (supervision) regimes. This confirms the scientific novelty of this study.

From a theoretical point of view, the administrative and legal regime of state control (supervision) can be defined as a way of activity of control and supervisory authorities in order to prevent harm (damage) to legally protected values and in order to ensure compliance with mandatory requirements.

Generally speaking, when talking about regimes in administrative law, it is necessary to refer to the understanding of the regime from the point of view of police law. The works of I.A. Andreevsky ^[1], V.F. Deryuzhinsky ^[2], V.A.Hagen ^[3], I.T. Tarasov ^[4] are devoted to the problems of the implementation of exceptional (extraordinary) legal regimes. Undoubtedly, the famous scientist V.M. Gessen, who attempted a comprehensive analysis of the exceptional (emergency) situation, had a special influence on the formation of the concept of "regime" in the administrative and legal sphere. In his opinion, the exceptional position hidden in the regime is nothing more than beyond the powers that are exercised when threats to the existence of the state occur.^[5] This definition of exceptional "emergency" regimes is still relevant. However, over time, the concept of administrative and legal regime is being transformed from a tool for responding to external threats into a tool with a wider range of applications.

Professor A.V. Martynov defines administrative and legal regimes as a system of legal regulations, which in turn regulate the exercise of rights and duties by individuals. ^{[6, p.412]}.

Public administration has a complex and multistructural content, which is confirmed by the presence of various administrative and legal regimes inherent in various spheres of public administration. We agree with the opinion of Professor Yu.A. Tikhomirov that public administration itself is a systematic activity of regulation and control in various fields. ^{[7, p.102]}. According to A.V. Petrov and A. E. Epifanov, control is an important function and one of the main stages of the management process. Monitoring makes it possible to find out the results of the actions carried out and evaluate them for compliance with the tasks set. ^{[8, p.39]}. Of course, without control (supervision), public administration loses its meaning. However, in our opinion, the tools used to implement control (supervision) are crucial in the issue of efficiency and effectiveness of public administration in general and control in particular.

From the point of view of the theory of administrative law, administrative and legal regimes of state control (supervision) have all the features of an "administrative and legal regime", nevertheless, they represent a special type of regime consisting of a special set of legal norms, regime measures established to achieve the goals of state control and supervision and, as a result, with with their own special features. The regimes of State control and supervision operate in a special area of public administration.

Administrative and legal regimes of state control and supervision have a regulatory framework that establishes a set of legal means that have both a prohibitive and binding nature. Also, the signs of administrative and legal regimes of state control and supervision include the presence of such a mandatory subject of relations as the executive bodies of public authority and their officials exercising control and supervisory powers.

In our opinion, the essence of the phenomenon under consideration is revealed by the following elements: the objectives of establishing and implementing regimes; the regulatory legal framework of regimes; the legal status of subjects; means of ensuring regimes; consequences (sanctions) of violating regime rules; principles of state control and supervision regimes. Since the administrative and legal regimes under consideration are implemented in the field of state control and supervision, it seems quite logical to assume that the objectives of the administrative and legal regimes of state control and supervision are directly related to the objectives of state control and supervision.

Let us leave the discussion of the relationship between the concepts of "control" and "supervision" outside the scope of this study and cite only the opinion of D.N. Bakhrah that monitoring compliance with legal norms is supervision. ^{[9, p.411]}.

In this regard, administrative and legal regimes of state control and supervision are implemented in order to prevent, detect, and suppress violations of mandatory requirements.

The regulatory legal framework as an element of the administrative and legal regimes of state control and supervision is multilevel and extensive. State control and supervision regimes are established and implemented on the basis of regulatory documents at various levels.

Paragraph "a" of Article 71 of the Constitution of the Russian Federation establishes control over compliance with the Constitution and Federal Laws. At the level of Federal laws, the procedure for implementing state control and supervision regimes is provided for in Federal Law No. 248-FZ "On State Control (Supervision) and Municipal Control in the Russian Federation", Federal Law No. 294-FZ "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of State Control (Supervision) and Municipal Control" Federal Law No. 247-FZ "On Mandatory Requirements in the Russian Federation". Legal regulation of special state control (supervision) regimes is also carried out through various Government resolutions and administrative regulations. All this highlights the cumbersome and voluminous nature of the system of legal regulation of state control (supervision) regimes. In addition, the legislator does not always keep up with the speed of reforming the sphere of control (supervision), which affects the speed of adoption of related regulatory documents and the ability to effectively carry out control (supervisory) activities by authorized persons. For example, the basic Law on State control (supervision) establishes special regimes of state supervision control, but lists only a few. But recently, other regimes have emerged in the field of state control (supervision), for example, a moratorium on inspections and others that also require proper legal regulation.

In regime control and supervisory legal relations by one of the subjects There are always control and supervisory authorities and their officials. The other party, in respect of which control (supervisory) activities are carried out, are business entities: individuals or organizations.

In the theory of administrative law, it is customary to consider Federal services as the main subjects of control and supervisory legal relations ^{[10, p.142]}. Let's agree with this, and as an example, we will cite the activities of the Federal Service for Supervision in the Field of Transport, which performs control (supervision) functions in the field of transport security, merchant shipping and inland waterway transport, railway transport, road transport, urban land electric transport and road construction, and civil aviation.

D.N. Bakhrah suggests identifying target, structural, organizational and competence elements in the structure of the administrative and legal status of a subject ^{[11, p.12]}. The legal status of subjects of state inspectors of control and supervisory activities, according to N.M. Zaslavskaya, consists of their rights, duties and responsibilities of these officials ^{[12, p.2]}. We believe that in addition to the rights, duties and responsibilities, it is necessary to include in the administrative and legal status of subjects of control (supervisory) activities target and competence elements. This is due to the fact that the objectives of state control (supervision) have been partially adjusted in the reform process of recent years. If earlier state control (supervision) was aimed at finding violations and fines, then at the new stage of reform prevention comes to the fore, and accordingly the competence component of the administrative and legal status of the subject changes.

The current legislation assigns a wide range of responsibilities to the inspector exercising control (supervisory) powers. These include compliance with the law and the rights of controlled entities, suppression of violations of mandatory requirements, and so on. In addition, the administrative and legal status of the inspector as a subject of control (supervisory) legal relations is disclosed by a set of rights (for example, to freely visit production facilities; to get acquainted with all documents, to draw up acts).

It is also necessary to mention the responsibility of officials exercising state control (supervision) within the framework of administrative and legal regimes. One cannot disagree with Professor A.V. Martynov, who defines this responsibility as the procedural responsibility of officials who fail to comply with administrative and legal norms when performing administrative and supervisory actions. ^[13,p.33]. Disciplinary, administrative and criminal liability measures are applied to officials for violations in the sphere of state control (supervision).

The means of ensuring administrative and legal regimes of state control and supervision are an important element of the regimes and represent a set of legal techniques and means regulated by the norms of administrative law, ensuring the implementation of these regimes.

According to N.N. Popova, permission, prohibition, encouragement and positive commitment are applied in any legal regime ^{[14, p.46]}. However, one of these methods of regulation always prevails over the others. In the administrative and legal regimes of state control (supervision), it is a prohibition.

These regimes are characterized by such legal influence, which is carried out on an imperious basis. These administrative means include: special state regulation that takes into account the specifics of the subject of state control (supervision), the scope of legal instruments implemented within the framework of a particular administrative and legal regime of state control (supervision) and subjects of state control regimes; the use of incentives for conscientious compliance with mandatory requirements; widespread use of direct state coercion caused by the severity of consequences of violation of mandatory requirements that are the subject of state control and supervision; availability of special organizational, material and financial resources.

The consequences of non-compliance with the regime of state control and supervision (sanctions), in our opinion, are also an element of the administrative and legal regime of state control (supervision). Chapter 19 of the Code of Administrative Offences establishes sanctions for persons who disobey the lawful orders of employees of control and supervisory authorities.

According to S.V. Solovyova, the articles of the Code of Administrative Offences specify the term "countering control and supervisory activities." Disobedience to the lawful order of employees of control (supervisory) bodies is revealed in the commission of such acts as disobedience (art. 19.4 of the Administrative Code), obstruction (art. 19.4.1, 19.4.2 of the Administrative Code), non-compliance (art. 19.5 of the Administrative Code), non-compliance (art. 19.6.1 of the Administrative Code), failure to provide certain information or information (art. 19.7-19.7.9 of the Administrative Code of the Russian Federation) to officials. ^{[15, p.79]}.

In this regard, the question arises whether the failure to provide information and information by a controlled person will be considered a violation of a technical failure, as a result of which the process of transmitting information is disrupted within the framework of monitoring as a permanent regime of state control (supervision) or during remote industrial control (supervision), when every minute a sensor of special technical means can show a violation of mandatory requirements at hazardous production facilities.

Principles are a necessary element underlying the functioning of administrative and legal regimes of State control and supervision. In our opinion, the principles of state control (supervision) regimes can be divided into general ones, fixed by the basic federal law, and special ones.

Among the special principles, I would like to focus on the principle of achieving balance in the activities of control and supervisory authorities in the implementation of the objectives of state control (supervision).

This principle is revealed through the need to achieve proportionality in the activities of control (supervisory) bodies and ensure safety in the conduct of business by controlled entities. To implement the principle of balance, it is necessary to establish a necessary and sufficient regime of state control (supervision) in relation to a specific controlled entity. In addition, replacing continuous inspections with monitoring in some cases will significantly reduce administrative pressure and ensure the proportionality of the participation of control (supervisory) authorities.

This principle has two mandatory elements.

Firstly, we are talking about the establishment of a state control (supervision) regime in which it is possible to prevent violations of mandatory requirements as much as possible. Secondly, when establishing and implementing administrative and legal regimes of state control (supervision), it is important to avoid excessive pressure on the business entity. Reducing pressure on controlled entities is reflected in a gradual decrease in the volume of reports submitted, the active introduction of remote technologies, and an increase in control (supervisory) measures without interaction between the inspector and the controlled entity. Today, there is a clear tendency for the control and supervision system to move towards a preventive approach. However, it is impossible to replace all control (supervisory) measures with preventive visits. Therefore, it is necessary to correlate the level of administrative pressure during the implementation of control (supervisory) measures and the possible negative consequences in case of violation of the requirements.

An example of ranking the level of administrative pressure is the establishment of various administrative and legal regimes of state control (supervision) at hydraulic structures. Depending on the class of responsibility of a hydraulic structure, the likely damage caused by an accident and the level of safety, either a general regime of state control (supervision) is established with scheduled inspections no more than once every 3 years, once a year; or a special administrative and legal regime of state control and supervision: the regime of permanent state control and supervision, which It assumes the permanent presence of an inspector on the territory of the facility and the ability to systematically carry out various control and supervisory activities.

Types of such hydraulic structures can be dams made of ground materials, dams for the use of water resources on sandy, coarse-grained and clay soils with a height of more than 65 meters, or hydraulic structures that may result in accidents affecting more than 3,000 permanent residents.

Administrative and legal regimes of state control and supervision are an important theoretical and practical legal structure that requires the necessary understanding for the possibility of further improvement of control and supervisory activities.

In addition, it can be said that the administrative and legal regimes of state control and supervision are the procedure for the functioning of control and supervisory authorities in order to prevent harm (damage) to legally protected values and ensure compliance with mandatory requirements.

In this regard, we consider the organization of state control (supervision) based on a risk-based model using various modes of state control (supervision) to be the most effective and efficient, since they allow the law enforcement officer to establish and implement the necessary regime depending on the likelihood of harm to society and the state.

As a summary of the research, I would like to note the following.

Firstly, the regimes of state control (supervision) are indeed an independent legal phenomenon that requires scientific understanding. This is proved by the fact that administrative and legal regimes have their own characteristics and principles reflecting their specific features. In addition, each regime of state control (supervision) contains mandatory elements, such as the objectives of implementation; a multi-level regulatory legal framework; the special legal status of subjects; means of ensuring regimes; consequences (sanctions) violations of regime rules.

Secondly, the principles of state control (supervision) regimes are an important beginning for the implementation of this instrument of control (supervisory) activities. The most important principle, in our opinion, is the principle of achieving balance in the activities of control and supervisory authorities in the implementation of the objectives of state control (supervision).

Thirdly, due to the establishment and implementation of administrative and legal regimes of state control (supervision), it is possible to abandon frequent inspections as an ineffective model of control and supervisory activities. Previously, the number of control and supervisory measures significantly exceeded the capabilities of the bodies exercising control and supervisory powers, and as a result, jeopardized the security of the activities of controlled entities. The need for timely scientific support explains the practical significance of this research in the field of control (supervisory) activities.

The implementation of state control (supervision) through various administrative and legal regimes, which are established for controlled entities depending on the potential likelihood of negative consequences and with reasonable administrative participation for this regime, makes it possible to achieve a reduction in the overall administrative burden on business entities and increase the efficiency of this activity.