Introduction. The ambiguity of scientific and legislative variations in the interpretation of the term “administrative and legal status” encourages scientists to new scientific research, the main purpose of which is to clarify the basic functional capabilities and boundaries of the power space of a particular public entity in the field of public relations, including in the field of preventing and combating corruption.
Understanding that the public administration in the field of prevention and counteraction of corruption in Ukraine is an integral legal symbiotic-interdependent entity, which has clearly distributed functions between the subjects of its structure, the classification gradation of such subjects can be represented, in particular, in such in the form of:
1) bearers of political will – the President of Ukraine, factions of political forces in the Verkhovna Rada of Ukraine, the Committee of the Verkhovna Rada of Ukraine on Prevention and Counteraction to Corruption, the Cabinet of Ministers of Ukraine, the National Council on Anti-Corruption Policy under the President of Ukraine;
2) anti-corruption bodies – the National Agency of Ukraine for Prevention of Corruption (NAPC), the National Anti-Corruption Bureau of Ukraine (NABU), the State Bureau of Investigation (DBR), the Specialized Anti-Corruption Prosecutor’s Office (SAP) and the National Agency of Ukraine for Detection, Investigation and Management. obtained from corruption and other crimes (ARMA), the Supreme Anti-Corruption Court of Ukraine (SAC);
3) specially authorized bodies in the field of anti-corruption – bodies of the Prosecutor’s Office and the National Police, NAPC, DBR, ARMA;
4) implementers of anti-corruption policy – state bodies, their subordinate bodies which are obliged to implement a specific anti-corruption measure; private sector enterprises, as well as individual citizens or their associations – by consent;
5) anti-corruption policy makers – NAPC and the Cabinet of Ministers of Ukraine;
6) entities involved in the process of forming anti-corruption policy – the National Council for Anti-Corruption Policy under the President of Ukraine, the Ministry of Justice of Ukraine, NAPC, DBR, ARMA, the Government Commissioner for Anti-Corruption Policy, the European Union Anti-Corruption Initiative in Ukraine, the Ministry of Foreign Affairs Denmark, UNDP, Transparency International Ukraine, EIDOS (Center for Political Studies and Analytics), International Renaissance Foundation, and others;
7) participants in anti-corruption programs – Ministry of Health of Ukraine, Ministry of Energy and Environmental Protection of Ukraine, Ministry of Justice of Ukraine, Ministry of Finance of Ukraine, Ministry of Social Policy of Ukraine, Ministry of Internal Affairs of Ukraine, Ministry of Education and Science of Ukraine, Ministry of Culture, Youth and Sports Of Ukraine, Ministry of Economic Development, Trade and Agriculture of Ukraine, Ministry and Committee for Digital Transformation of Ukraine, State Property Fund of Ukraine, State Audit Office of Ukraine, State Service of Ukraine for Transport Safety, State Aviation Service of Ukraine, State Service of Ukraine for Geodesy, Cartography and cadastre;
8) citizens and associations of citizens – Public Human Rights Organization “Human Rights”, Center for Political and Legal Reforms, Transparency International Ukraine, Center for Political Studies and Analytics “Eidos”, Center for Combating Corruption, Anti-Corruption Reform Group, Resuscitation Reform Package, and others;
9) international independent experts and organizations – Carlos Castresana, Giovanni Kessler, USAID, Transparency International, and others.
Accordingly, its structure consists of:
1) public authorities, their structural subdivisions and their delegated representatives;
2) individuals and public structures;
3) representatives of international institutions.
That is why, within the framework of this study, we will try to clarify the theoretical and practical essence of the concept of “administrative and legal status” in the context of the specified public administration.
- Review of recent research
In the context of global transformations of the doctrine of administrative law, its re-profiling to today’s conditions, where servitude, as a leading feature of the state, intensified research in the administrative and legal status of entities that administer the main spheres of state and society. Among a number of scientists whose works were devoted to this issue, we should highlight such as V. Averyanov, S. Alekseev, O. Altunina, N. Vitruk, O. Gumin, V. Hutsul, A. Zubko, S. Kivalov, V. Kolpakov, B. Lazarev, O. Meshcheryakova, S. Pogrebnyak, E. Pryakhin, M. Rivis, J. Savitsky, S. Stetsenko, Y. Tikhomirov, O. Kharitonova, M. Shilenko, D. Schultz, and others.
However, their scientific research was not addressed to the systematic analysis of the administrative and legal status of the subjects involved in the process of overcoming and preventing corruption, but concerned general or related aspects.
- Presentation of the main provisions
Before proceeding directly to the analysis of this issue, we consider it necessary to define the subject area of administrative law, because as noted above, in today’s conditions there is a need to rethink certain categories of administrative science in particular, and legal in general.
It is well known that the right is divided into public and private. It is a multifaceted doctrine that has both purely theoretical and practical value. In theoretical terms, it is a classification of the conceptual order, which relates to the very foundations of law, its place and role in people’s lives, its defining values. Public and private law are characterized as qualitatively different branches of legal regulation, two different “legal continents”, two different “legal galaxies”, a kind of legal Montecchi and Capuletti.
However, the subject of administrative law in pre-revolutionary times, in the Soviet period and today was and remains one of the most difficult theoretical, methodological and practical issues of this branch of public law. And this is no accident: studying (in a broad sense) the problems of government, its manifestations, relations with citizens, administrative law to some extent, having a certain backbone, formulated in the XIX century, “doomed” to frequent changes (modernization, renewal) of its subject. In particular, the transition from the model of totalitarian government to the recognition of human goods, values and needs as a priority of public policy has necessitated the implementation of regulatory processes not only by the state but also with the help of other non-governmental institutions.
Apart from that, for modern Ukrainian administrative law the definition of the subject is of a fundamental nature. Its establishment in accordance with the modern realities of state formation is an important step in the renewal of administrative and legal institutions and objective coverage of their role in deepening the processes of formation of the rule of law and civil society. It is crucial for the specification of the determinants of the separation of the industry in the legal system, the consolidation of relevant normative material, the systematization of public relations governed by administrative law.
Currently, the scientific concept dominates, according to which the subject of administrative law should be considered dualistically, as its development has completely supplanted the Soviet concept of administrative relations and involves a combination of administrative actions and servitude of the state.
That is why it is quite natural that in the doctrine of administrative law we increasingly encounter such categories as “administration”, “public administration” or “administrative and legal support” (instead of the terms of state regulation or management) of a branch or sphere of a certain obligation of the state. , as well as such categories as “public administration” and, accordingly, “administrative and legal status of public administration”.
In particular, with regard to the latter, it should be clarified that it is a collective term, which among its own specific features is endowed with a number of features that have a derivative character. Therefore, in order to define the concept of the researched concept in the field of prevention and counteraction to corruption, we consider it expedient to find out first of all the terminological and essential characteristics of the categories from which it originates.
In a general sense, status (from the Latin status – position, position) means the legal status (set of rights and responsibilities) of a natural or legal person. It is an abstract ambiguous term; in the general sense means a set of stable values of the parameters of the object or subject.
In fact, such a legal concept as the legal status in which the specified science invests the interpretation is derived from the specified term. However, depending on the types of subjects, the legal status can contain a wide range of legal characteristics. Analysis of a significant amount of literature on the theory of state and law, constitutional law shows that the term “legal status” is used mainly in relation to such categories as “person”, “citizen”, “foreigner”, “stateless person”, “civil servant”. ie indicates the status (position) of an individual. The term “competence” is used for legal entities (including public authorities), which should be identical in meaning to the term “legal status”.
It should also be added that some scholars argue that it is appropriate to distinguish between the concepts of “legal status” and “legal status”. Thus, M. Vitruk, separating the legal position from the legal status, characterizes the position as a broader concept and cites the following elements: legal status, citizenship, legal personality, legal guarantees. He insists that the legal position is a generalized category that reveals all the elements of the legal status of a person, which are in certain relationships and in the social sense due to the place that a person occupies in the system of social relations. According to O. Kharitonova, on the contrary – the legal status is associated with a stable legal status of the subject, and the legal status changes depending on the legal relationship in which he participates. It should be noted that there is another separate opinion on the analyzed issues: the category of “legal status” refers to a person, while the “legal status” – a public authority.
In turn, the derivative of the analyzed term is the sectoral concept of this phenomenon – administrative and legal status, which in theory is also revealed through the characteristics of its elements or through the competence of a particular subject of public administration.
Moreover, a significant problem in this aspect is the definition of the elemental composition of a single set, which reflects the desired truth.
In particular, E. Pryakhin and O. Humin believe that the elements of administrative status should include legal personality, rights, duties and legal responsibility; Yu. Tikhomirov to the elements of the legal status of state bodies includes: purpose; the order of formation and functioning of state bodies; main tasks; forms of relations with other parts of the state apparatus; V. Averyanov defines the administrative-legal status as a set of rights and obligations enshrined in the norms of administrative law, the implementation of which is ensured by certain guarantees; O. Altuninova notes that the classic elemental composition of the legal status is rights, duties and responsibilities, with which the vast majority of scholars, including administrators, agree. However, in her opinion, such an elemental composition is more typical for individuals as subjects of administrative law. As for legal entities, the elements of their administrative and legal status should include the purpose, tasks, functions, powers and responsibilities.
By the way, not all rights enshrined in law characterize the administrative and legal status. These include only those that are provided by the rules of administrative law and are implemented in relations with public authorities, as administrative-legal relations exist only where one of the subjects is a subject of power. The same goes for responsibilities.
Separately, some scholars consider legal obligation, legality, law and order, legal awareness, humanism, justice as elements of the analyzed status, ie in too broad an elemental interpretation.
In turn, Yu. Kozlov believes that the legal status of public administration bodies finds its concrete expression in their competence. It sets out the tasks, functions, rights and responsibilities, forms and methods of activity of these bodies, ie their administrative capacity and legal capacity. For example, B. Lazarev interprets competence as a right and obligation to carry out certain activities. However, the exercise of such powers by law enforcement agencies is strictly limited by law. Establishing the competence of a governing body, the state authorizes it to carry out certain actions, limiting this activity to a certain framework.
Thus, interpreting all the above, we believe that the administrative and legal status of public administration is an abstract concept, which representatives of the doctrine of administrative law try to define a set of necessary prerequisites by which it is possible to describe the practical significance of a particular authorized entity. certain public security process.
The practical value of public administration in preventing and combating corruption in the relevant mechanism is different, due to the variety of their administrative and legal status (for example, public authorities, their structural units and their delegated representatives have the classic status of persons authorized to perform functions state or local government (and equated to them; individuals and public structures – special, ie as individual or, in cases prescribed by law – classic; representatives of international institutions – specific, within the framework of cooperation and technical assistance), and a combination of them legislative and regulatory capacity to perform an administrative action that has individual or public significance.
All the above makes it possible to conclude that, from a theoretical point of view, the administrative and legal status of public administration in the field of preventing and combating corruption in Ukraine – is the role, importance and value of its representatives in this mechanism; from a practical point of view, giving them the opportunity to perform administrative actions that cause legal consequences of both individual and public nature.
For all subjects of the studied public administration the main criterion for determining their status is:
- first, the task for which they were formed;
- secondly, the set of administrative responsibilities and rights by which this task is realized;
- thirdly, the legal significance of the result of the activity is the efficiency, necessity and expediency of the existence of a specific authorized entity and directly of the activity that it implements in the framework of preventing or combating corruption in Ukraine.
Only aggregate administrative activity of each of them can represent the current state of administrative and legal support to prevent and combat corruption in Ukraine.