For citation:
Al-Mihyawi Z. J. Theoretical and methodological analysis of the legal nature of public control. Journal Izvestiya of Saratov University. Economics. Management. Law, 2024, vol. 24, iss. 2, pp. 226-231. DOI: 10.18500/1994-2540-2024-24-2-226-231, EDN: UIHTNM
Theoretical and methodological analysis of the legal nature of public control
Introduction. In modern legal science, there is no universal and uniform approach to defining the concept of “public control”, which predetermines and actualizes the need for a detailed study of the legal nature of this phenomenon, its content and the functions that it performs in the state and society. Theoretical analysis. The analysis of doctrinal approaches to disclosing the content of public control, formed in the system of legal science, allows us to draw a conclusion about a differentiated definition of this phenomenon. On the one hand, public control is considered as a combination of state and municipal types of control, which corresponds to the constitutional and legislative approaches to understanding public power. Another point of view complements the previous perspective with another type of control – public control, which involves the participation of civil society institutions in the implementation of this function of public authority. Empirical analysis. It has been revealed that the concept of “public control” is practically not used in the Russian legislation. At the same time, in judicial practice this category is often used in the texts of decisions of higher courts, but its interpretation, like that in the legal doctrine, is also very heterogeneous. Results. The assessment of the theory and practice of using the concept of “public control” allowed us to come to the following conclusions. The category of “public control”, in contrast to the term of “public power”, does not have a legal meaning, that is, it is not enshrined in the Russian legislation, which leads to the need to identify its theoretical significance only through the analysis of doctrinal approaches established in legal science. Based on the analysis of theoretical approaches to the meaning of public control, as well as materials from judicial practice, it is possible to conclude that this concept is used in a diametrically opposite semantic context. Applying the concept of public power as a combination of state, municipal and public ones, it is proposed to consider public control in a similar context, as a combination of state, municipal and public types of control.
- Berdnikova E. V. Public control in the constitutional and legal interaction of public authorities and civil society institutions in the Russian Federation. Diss. Dr. Sci. (Jur.). Saratov, 2021. 482 p. (in Russian).
- Pilipenko A. N. Publichnyy kontrol’ vo Frantsii [Public control in France]. Moscow, INFRA-M, 2019. 256 p. (in Russian).
- Sovremennye problemy organizatsii publichnoy vlasti [Avakyan S. A. (ed.) Modern problems of organizing public power]. Moscow, Justitsinform, 2014. 596 p. (in Russian).
- Chebotarev G. N. Obshchestvennoe predstavitel’stvo [Public representation]. Moscow, Yurist, 2017. 160 p. (in Russian).
- On the fundamentals of public control in the Russian Federation. Federal Law 212-FZ of July 21, 2014 (an edition of December 27, 2018). Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2014, no. 30 (pt. I), art. 4213; 2018, no. 53 (pt. I), art. 8424 (in Russian).
- On the State Council of the Russian Federation. Federal Law 394-FZ of December 8, 2020. Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2020, no. 50 (pt. III), art. 8039 (in Russian).
- Agamagomedova S. A. Legal status of banks as subjects of customs relations. Banking Law, 2023, no. 3, pp. 15–23 (in Russian). https://doi.org/10.18572/1812-3945-2023-3-15-23
- On currency regulation and currency control. Federal Law 173-FZ of December 10, 2003 (an edition of July 24, 2023). Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2003, no. 50, art. 4859; 2023, no. 31 (pt. III), art. 5766 (in Russian).
- Korablin V. V. An authorized bank as a subject of currency control. Diss. Cand. Sci. (Jur.). Moscow, 2015. 232 p. (in Russian).
- Migachev Yu. I., Polyakov M. M., Chekmarev G. F. Public state authorities in the Russian Federation and foreign countries. Actual Problems of Russian Law, 2022, vol. 17, no. 12, pp. 60–67 (in Russian). https://doi.org/10.17803/1994-1471.2022.145.12.060-067
- Antroptseva I. O. Digital controller as a subject of public financial control. Actual Problems of Russian Law, 2022, vol. 17, no. 4, pp. 57–64 (in Russian). https://doi.org/10.17803/1994-1471.2022.137.4.057-064
- Review of the practice of courts considering cases related to the performance of assistance and control functions in relation to arbitration courts and international commercial arbitrations: Approved by the Presidium of the Supreme Court of the Russian Federation of December 26, 2018. Bulletin of the Supreme Court RF, 2019, no. 9 (in Russian).
- Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation no. 11059/13 of February 11, 2014 in case no. A26-9592/2012 (unpublished). ATP «Consultant» [electronic resource] (in Russian).
- Ruling of the Supreme Court of the Russian Federation no. 309-ES21-4092 of April 14, 2021 in case no. A50-35285/201 (unpublished). ATP «Consultant» [electronic resource] (in Russian).
- Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation of April 28, 2022 in case no. 301-ES21-27876, A79- 8550/2020 (unpublished). ATP «Consultant» [electronic resource] (in Russian).