Basics of Russian Law. Textbook

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Preface

Part 1 Basics of the theory of state and law

Part 2. Basics of constitutional law

Part 3. Basics of civil law

Part 4. Basics of labour law

Part 5. Basics of administrative law

Part 6. Basics of criminal law

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Part 5. Basics of administrative law

Chapter 24. Administrative Law and Participants of Administrative Legal Relations

24.1. Subject Matter, Method and Distinctive Features of Administrative Law as a Branch of Law

Administrative law is a branch of law which governs the legal relations in connection with the realisation of the executive powers of the state and arising in the sphere of state governance.

The distinctive feature of administrative law is that it is a “law of management”, which directly regulates the area of state governance. Thus, state governance is the core and essence of administrative law.

In the broader sense, state governance denotes the activities of any state agencies of all branches of authority (executive, legislative and judicial), aimed at the realisation of their authority. In the narrower, legal and organisational sense, state governance denotes the lawful activities of executive agencies for exercising their supervisory and executive functions in various areas of social life: in economics, social security, healthcare, culture, national security and defence, transport, communications, etc.

Therefore, contrary to the activities of the legislative or judiciary state governance in the narrow sense is performed by the executive agencies in certain specific forms.

Firstly, these agencies issue subordinate legal acts (regulations), which may not contradict the law and which help the executive agencies exercise their functions and achieve their objectives.

Secondly, the executive agencies and their officials perform activities aimed at the realisation of laws as well as subordinate legal acts and, in some cases, are entitled to use physical force.

State governance has a number of defining characteristics:

1. it has a purpose, which is demonstrated by the fact that it is the state that ensures its own national interests are realised and the interests of individuals and society are observed; it is the state that provides guarantees for material well-being of the members of society, their moral and physical self-actualisation, legal and social protection. The whole state apparatus serves this purpose by implementing the provisions of the Constitution of the Russian Federation, laws and subordinate legal acts;

2. it is connected with direct implementation, realisation of laws and subordinate legal acts;

3. it is active and dynamic, realising the exact functions of the state in different spheres and solving practical, vitally important objectives;

4. it is connected with state and is based on, among others, state coercion (enforcement);

5. for its realisation, the state creates a special apparatus (a system of state agencies organised in a specific manner), which exercises its competencies with the help of professionals specifically prepared to carry out the respective functions.

Thus, the subject matter of the administrative law includes the following elements:

1. social relations connected with the implementation of state functions in economic, socio-cultural and administrative-political areas by the actors of state governance (foremostly, the executive agencies);

2. relations within the system of executive, legislative and judicial authorities, i. e. building an effective cooperation among public bodies and regulating the internal relations within the apparatus;

3. relations in connection with the realisation of administrative procedures and administrative jurisdiction. Administrative procedures are connected with the preparation and publication of administrative acts, issuance of licenses and permits (for the right to perform certain activities), and registration procedures. Administrative jurisdiction is connected with the resolution of disputes in the domain of administrative law, liability in the area of administrative law and application of administrative coercion measures.

Thus, administrative law is a branch of law which governs social relations in the three above named spheres.

The method of administrative law, like methods of any other branch of law, is a system of forms and means, by which legal norms have influence on social relations under the regulation of a given legal branch.

Almost all branches of law use such legal categories as instruction (placing an obligation to commit certain deeds), permission (authorisation of certain deeds) and prohibition (placing an obligation not to commit certain deeds at the threat or penalty).

The specific feature of the administrative law’s method is that state governance, which is its subject matter, predetermines inequality of the parties of administrative legal relations (since there is always someone who governs and someone being governed). Because of this, administrative law is characterised by the method of legal authority or authoritative orders issued by a lawful actor of state governance. Such orders are of one-sided character and express the will of such actor.

Thus, the mechanism of administrative law is mainly based on prohibitions and authoritative means of regulation, i.e. it is mainly imperative (direct subordination of the will of the governed to the will of the governing actors).

Administrative legal relations are rarely based on mutual expression of will of parties. One-sidedness of will expression is their common characteristic. However, dispositive methods may be used by the parties to administrative relations if they are state agencies and none of them is subordinated to others.

24.2. Administrative Legal Norms and Administrative Relations

An administrative legal norm is a rule of conduct guaranteed by the state (either directly established or allowed by it), regulating the relations in connection with state agencies exercising their powers, their interaction, realisation of administrative procedures and administrative jurisdiction.

As a rule, administrative legal norms are created by the executive agencies themselves and may govern relations which are a part of the subject matter of other legal branches (financial, land, tax law, etc.).

This specific feature of administrative law is connected with the fact that state agencies regulate various areas of social relations. Hence, the norms of administrative law “penetrate” into those area where specific normative legal acts are already in force (Land Code, Tax Code, etc.). However, this does not mean that the administrative legal norms have the priority or that they have any special legal force. Numerous norms of administrative law are present in normative legal acts, which are strictly hierarchic depending on their legal force and which in any case may not contradict the laws.

The norms of administrative law consist of a hypothesis, a disposition and a sanction, similarly to any other legal norms. The said elements of a legal norm are analyzed in para 7.2 hereof.

There are several classifications of administrative legal norms:

1. based on their character, they may be: material (those envisaging the rights, obligations and liability of the participants of administrative legal relations) and procedural (those governing the administrative procedures and administrative jurisdiction);

2. based on their means of regulating the behavior of their subjects, they may be: prohibitive, restrictive, permissive or enabling, authorising, stimulating;

3. based on their territorial scope, they may be: federal (set out in federal laws and in force on the whole territory of the Russian Federation) or regional (set out in regional laws and in force on the territory of the respective subjects of the Russian Federation);

4. based on their temporal scope, they may be: temporary (with a fixed term of action) or termless (not limited in time).

Administrative legal relations are relations in the area of state governance regulated by administrative legal norms.

These legal relations possess the following characteristics:

— they arise on the basis of administrative legal norms;

— they arise in a specific area: exercising authoritative activities;

— one of the participants of such relations is a state agency or public official;

— although it is possible to settle administrative legal disputes in court, as a general rule they are solved according to an administrative procedure — i.e., by an authoritarian order of a competent official.

Parties to administrative legal relations include state agencies, their structural units, officials, organisations, citizens and their associations.

Subjects of administrative legal relations are things in connection with which such relations arise and develop. Such subjects include deeds, decisions and behavior of parties to administrative legal relations; state or private property; objects of spiritual culture; all the rights, freedoms and obligations which form the administrative legal status of citizens in their relations with state agencies.

Administrative legal relations are created by legal facts, the classification of which is provided in para. 16.1 hereof.

There are several types of administrative legal relations:

1. based on their content, they may be material or procedural;

2. based on the nature of the interaction between their parties, they may be vertical (if one party is subordinate to the other) or horizontal (relations between non-subordinate state agencies, enterprises, organisations or citizens which are not subordinate to each other in connection with the realisation of their rights in the area of state governance);

3. based on the nature of legal facts giving rise to such relations, they may be those that have arisen due to lawful deeds or those that have arisen due to legal offences;

4. based on their duration, they may be termless or temporary.

24.3. System of Administrative Law and Its Sources

Administrative law is a system i.e. a sum total of legal norms and legal institutes structured in a certain way.

The fact that administrative norms and institutes are a system may be explained by the specifics of the subject matter and method of this legal branch as well as its purposes, the main of which are: 1) creation of conditions for the realisation of citizen’s rights, freedoms and legitimate interests by state agencies (actors of state governance); 2) creation of legal framework for the effective operation of executive agencies; 3) creation of favourable conditions for the development of socio-economic, political, cultural and other spheres of social life; 4) protection of citizens and society from misuse or abuse of power, negligence, incompetence of state agencies.

The system of administrative law includes the general and special parts.

The general part of administrative law establishes institutes governing: the status of administrative law actors; forms and methods of state agencies’ activities; grounds and forms of administrative legal liability; types of administrative penalties.

The special part of administrative law governs the organisation and realisation of state governance in various areas: economics, industry, agriculture, trade, defence, security, etc.; as well as organisation and realisation of political, economic and other ties to foreign nations.

Sources of administrative law are external forms of manifestation of the administrative legal norms, i.e. normative legal acts of state agencies which contain such norms.

The normative legal acts which are sources of administrative law include:

1. the Constitution of the Russian Federation, federal constitutional and federal laws — their administrative legal norms form the basis of the administrative legal branch;

2. universal principles and norms of international law and international treaties of the Russian Federation;

3. decrees of the President of the Russian Federation;

4. normative legal acts of the Government of the Russian Federation;

5. normative legal acts of federal ministries;

6. laws and other normative legal acts of supreme state agencies of the subjects of the Russian Federation (constitutions of the republics which are parts of the Russian Federation, charters of territories, regions and other subjects of the Russian Federation, laws on governments or administrations of subjects of the Russian Federation, etc.);

7. normative legal acts of municipal agencies if the law vests them with the respective authority.

24.4. Administrative Law Actors and Their Status

24.4.1. Citizens, Foreign Citizens and Stateless Persons

Citizens are among the most important actors of administrative law, since the protection of their rights and freedoms is the priority of state governance.

The administrative legal status of citizens is formed by their rights, freedoms and legitimate interests, their guarantees and the obligations and liability envisaged by administrative legal norms.

Administrative legal status of citizens is determined by their administrative legal capacity: active and passive.

Passive administrative legal capacity is the recognised ability of a citizen to be a party to administrative legal relations, to have rights and bear obligations under administrative law. The fundamental rights and freedoms of a man arise from birth and cease only with death. However, a person may acquire some rights, especially those in the area of state governance, later on. Besides, some of those rights cease long before death. Passive administrative legal capacity is in many cases dependent on age, state of health, education and other factors and circumstances.

Active administrative legal capacity is the capacity to exercise rights and perform obligations envisaged by administrative legal norms, and bear the liability in accordance with such norms. Partial active administrative legal capacity arises from 14 years old (when a citizen obtains a passport), full active administrative legal capacity — from 16 years old. Administrative liability arises from the age of 16. The rights which the citizens receive later than at the age of 18 may be exercised from the moment of their acquisition.

Malko A.V., Subochev V.V., Fedorov G.V. Basics of Russian Law. Textbook

Malko A.V., Subochev V.V., Fedorov G.V. Basics of Russian Law. Textbook

This textbook presents in accessible form information necessary for comprehensive understanding of the basics of Russian law: theory of state and law, constitutional, civil, labour, administrative and criminal law.<br /> It is based on the Russian legislation in force and the market practice, combining theoretical material, classical and modern doctrinal works, as well as the basics of the current legislation. The above will allow readers to obtain practically-oriented knowledge.<br /> This textbook is intended for lawstudents, legalscholars, legal practitioners, as well as everyone who is interested in the basics of Russian law.

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