Definition and system of ways to ensure legality of public administration

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The article discusses the definition and investigates the SYSTEM OF ensuring legality in public administration of Ukraine. Besides, it was analyzed different approaches to the definition of ensuring legality in governance, and it was suggested to amend the Constitution of Ukraine concerning the definition of the legality.

Keywords: ways of ensuring legality of public administration, guarantees of ensuring legality, the elements of ensuring legality of law, legal guarantees.

Problem setting. Consolidation of the Constitution of Ukraine norms that “legislative, executive and judiciary bodies implement their powers in within the established by this Constitution limits and according to the laws of Ukraine” [1, p.6], and that “the public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner predicted by the Constitution and laws of Ukraine” [1, p.19], is nothing else than a normative regulation legality, which is a necessary condition for the functioning of legal and democratic state, first of all, its legal system, government and public authorities, population, etc., and is most often defined “strict implementation of laws and accepted in accordance with them other acts of governmental bodies, their officials, citizens, non-governmental bodies and organizations.

Last scientific researches and publications analysis. There is a wide range of studies and publications devoted to the issue of the definition and system ways to ensure legality in public administration, indicating the importance of raised issues. In particular, it became the subject of publications: Parashchuk V. M., Stetsenko S. G., Kolpakova V.K., Andriiko O., Volynko K. G. and others.

Formulation of the article’s purpose. Understanding legality exactly how “strict implementation of laws and accepted in accordance with them other acts” is acceptable than that contained in the Constitution of Ukraine, in articles 6 and 19 of which it only comes to the implementation of laws, since the indisputable is that the state authorities, public organizations are obliged to the norms stipulated not only in law (legislative act) but also in bylaw [2 p.237-239]. In connection with this we offer p. 2 of the Art. 6 of the Constitution of Ukraine formulate as follows: “Legislative, executive and judicial bodies implement their authorities in within the limits established by this Constitution and according to laws and bylaws of Ukraine”; p. 2 of Art. 19 of the Constitution of Ukraine as follows: “the public authorities and local governments, their officials are obliged to act only on the basis, within the authorities and in the manner predicted by the Constitution, laws and bylaws of Ukraine”. In the scientific literature legality is characterized as principle of function of the state; public-legal life; the principle of public administration; method of governance; mode system of relations; general purpose of ruling, etc. [3, p. 124]. Scientists define the principles of legality, the main features of legality, base (guarantee) of legality, methods (means) of legality [3, p. 522]. Certainly, we are more interested in characteristic of ways (facilities) to ensure the legality of public administration that we offer to consider as synonyms, because they mean the same thing: “certain action, method or system of ways that enables to do to make something, to achieve something, therefore, in explanatory dictionaries the word “means” is defined as ”way“, i vice versa – “way” as “means” [5, p. 122]. It also notes at the synonyms of these words in the literature that we consider reasonable and one that will prevent terminological confusion because, even in textbooks for the course of administrative law and public administration are the same ways (means) to ensure legality (control, monitoring and review appeals of citizens) call only ways or only as a means. The scientific literature is proposed definition of “system of ways to ensure legality” by which it proposed to understand set of tasks, functions, powers, forms, methods and order of such activity [6, p. 348].

In our view, this definition means (ways) ensure legality is quite general because it does not reflect their nature and purpose. V.K. Kolpakov and O.V. Kuzmenko propose under ways to ensure legality to understand the “activities of organizational and structural units, practical methods, operations, forms of work, they use” [4, p. 534], which practically repeats the previous one. Before actually offer ways to provide a definition of legality should be defined as common features, which we offer to include:

  1. They are an essential part (element) of guarantees of legality, which are divided into two groups: general and special, or on “objective conditions and special legal remedies”, “general, social and legal”, “objective conditions of existence of society and specially produced by state and public means to ensure exact implementation of the law by all subjects” [8, p. 240], sometimes into three groups: general-social, specially-social (legal), organizational. We think the more successful is understanding of the two groups of guarantees of legality, which are proposed by V.K. Kolpakov and O. V. Kuzmenko, according to which the first group of such guarantees is considering as conditions (preconditions) of ensuring legality (political, economic, ideological, organizational); second – special means and ensuring legality, which the authors include: a) organizational-structure formation, such as government bodies and non-governmental bodies, which has the responsibility of maintaining and strengthening the regime of legality; b) organizational-legal methods, namely, activities of organizational and structural units, practical techniques, operations, forms of work that they are used to ensure legality whose interaction (organizational and structural units and organizational-legal methods) constitutes a special state and legal mechanism to ensure legality [4, p. 332-333].

As for the term “guarantees of legality” under such scientists understand: the system means, ways, techniques and methods to ensure legality, allowing unimpeded to implement legal norms, to enjoy subjective rights and to fulfill legal obligations [8, p. 202]; system of ways with which legality implement, protect and in case of breach restore in social life; positive objective conditions that improve the level of social development, welfare, and special legal ways and means through which the regime of legitimacy is ensured in the country [7, p. 210]; conditions of social life and measures are taking by the state to provide a regime legitimacy and stable order; conditioned current legislation and the development of social life factors that ensure observance of the law; conditioned regularities of social development conditions, means, factors that ensure observance of the law [6, p. 347].

In our opinion each of the above definitions has the right to exist, which is primarily due to its diversity guarantees of legality, some of which are conditions and preconditions regime legitimacy, others – methods of compliance of it.

  1. Realized (used) by relevant states, or self-governing or public bodies (organizations) officials, members of public organizations or individually (for example, treatment with a statement about commission of offense).
  2. Type of way to ensure the legality, conditions and reasons for use of it depend on the legal status of the body (organization) or the person realizing it that of tasks and functions assigned to it.
  3. The purpose of using of any way to ensure law is to establish the actual state of compliance with the requirements of current legislation and responding to it, the extent of which depends on the characteristics of the legal status of the body that uses them.

The above features of ways of ensuring legality give the possible to determine them as a separate group of guarantees of legality, purposeful activity relevant authorities (officials) which is carried within their tasks and functions to determine the actual state of compliance with the requirements current legislation and responding on it.

Formulated the concept of way to ensure the legality, let’s clarify their species, as single thought on this issue is absent. At the same time, the commonplace is the separation of three kinds of ways to ensure the legality: control, supervision, review appeals of citizens [3, p. 195] and others.

However, as correctly notes V. M. Garashchuk, “expressed means definitely are not exhaustive, because in legal science to such means include other”. For example, in the theory of law legal guarantees of legality actually identified with ways (means) of ensuring legality are classified by subjects using it, the legal nature of, the ontological status. Thus, by using subjects it is divided to the parliamentary, presidential, judicial, prosecutorial, municipal, administrative, social, international etc.; the nature of the legal, law-making, law-explanatory, law-enforcement, law-implementation; by ontological status in the legal system – regulatory documentary (legal acts, regulations, interpretative acts, individual acts of use of law) and activity (practical work on the application of the law and the implementation of the law [9, p. 188].

In addition, the theory of law means ensuring legality divided into: constitutional guarantees and procedural guarantees of legality, and also notes that one of the important legal guarantees of legality is a high legal machinery of lawmaking, codification and incorporation of legislation. According to another theoretician of law, “legal guarantees act as a system of special legal means strengthening of legality and order” to which it includes: the law, which expresses the requirement of legality, and special detection means of offenses; means of preventing offenses; means suppression of offenses; measures for the protection and restoration of violated rights; legal liability; procedural guarantees; justice” [8, p. 203].

V.V. Kopeychykov calls under legal means to ensure the legality: the clarity and specificity of the current law, the effectiveness of sanctions protecting these rules; implementation of justice as a special form of universal, completing on the basis of law and justice of activity of  the courts, which ensures the implementation of existing law, protection of rights and freedoms; implementation of higher supervision over the strict and the same implementation of laws by the prosecutors; activity of state inspection and auditing system, which within its competence, carry out work to prevent, detect and deter violations of the law in various areas of public life [7, p. 211]. O.F. Skakun classifies legal guarantees of legality by criteria such as their goal purpose (goal), dividing them into: preventive (precautions), which is to prevent the offense; prevent violations of the administration of labor rights, prevention of illegal dismissal; stopping detected- at ending the detected offenses; detention, arrest, search, house arrest, revitalizing, reflected in the elimination or compensation of negative consequences of crime; enforcement of alimonies, forced seizure of property from illegal ownership; punitive (fines), aimed at implementing legal responsibility of offenders; punishment of persons guilty of any offense.

The foregoing allows to do the following conclusions: first, theoretically justified will amendments to Part 2 of Article 6 of the Constitution of Ukraine and formulate as follows: “Legislative, executive and judicial bodies implement their authorities in within the limits established by this Constitution and according to laws and bylaws of Ukraine”; Part 2 of Article 19 of the Constitution of Ukraine as follows: “The public authorities and local governments, their officials are obliged to act only on the basis, within the authorities and in the manner predicted by the Constitution, laws and bylaws of Ukraine”; secondly, we support the thoughts of the overwhelming majority of scientists that universal means (ways) to ensure the legality is control, supervision and consideration of appeals of citizens; thirdly, all other ways (means, legal guarantees) ensuring legality, except legal liability, called by scientists, is more its conditions (preconditions, factors) compliance with legislation than its ways.

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