Administrative- legal status public associations
The right of citizens to association is provided for in Art. 30 of the Constitution of the Russian Federation. The content of this right, the main state guarantees, the status of public associations, the procedure for their creation, activity, reorganization and (or) liquidation are regulated by the Federal Law "On Public Associations" of May 19, 1995 (with subsequent amendments), "On Trade Unions, Their Rights and Guarantees of Activity" of January 12, 1996, "ABOUT state support youth and children's public associations" dated June 28, 1995, "On charitable activities and charitable organizations" dated August 11, 1995, "On political parties" dated July 11, 2001 (as amended on July 25, 2002) and other acts.
The Federal Law “On Public Associations” applies to all public associations created on the initiative of citizens, with the exception of religious organizations, as well as commercial organizations and non-profit unions (associations) created by them, as well as to the activities of those created on the territory of the Russian Federation. structural divisions- organizations, branches or branches and representative offices - foreign non-profit non-governmental associations.
Public association- a voluntary, self-governing, non-profit formation created on the initiative of citizens united on the basis of common interests to achieve common goals specified in the charter of a public association, which contributes to the realization of the rights and legitimate interests of citizens.
For public organizations as for the subjects of administrative law the following features are characteristic: voluntariness of the association; the presence of a charter or regulation governing the legal status of this organization; organizational property isolation; the presence of self-government bodies; material participation of members of the organization in the creation of a material base; as a rule, a stable composition, combined with the possibility of renewal.
Forms of public associations:
1. Public organization - a public association based on membership, created for the common interests and achievement of the statutory goals of the united citizens.
2. A public movement is a non-membership mass public association, consists of its members and pursues social, political and other socially useful goals.
3. A public fund is one of the types non-profit associations a non-membership public association whose purpose is to form property on the basis of voluntary contributions and other receipts not prohibited by law and use this property for socially useful purposes.
4. Public institution - a non-membership public organization created to provide a specific type of service that meets the interests of the participants and corresponds to the goals of this association.
5. A body of public amateur performance is created with the aim of jointly solving various social problems arising from citizens at the place of residence, work or study, to meet the needs of an unlimited circle of persons whose interests are related to the achievement of statutory goals and the implementation of programs of the body of public amateur performance at the place of its creation.
6. Political public association - a public association, the charter of which, among the main goals, enshrined participation in the political life of the society by influencing the formation of the political will of citizens, participation in elections to bodies state power and LSG bodies through the nomination of candidates and the organization of their election campaign, participation in the organization and activities of these bodies.
7. Trade union - a voluntary public association of citizens connected by common production, professional interests by the nature of their activities, created in order to represent and protect their social and labor rights and interests.
8. Youth and children's associations - they are provided with state support, which is understood as a set of measures taken by state bodies. authorities in order to create and ensure legal, economic and organizational conditions, guarantees and incentives for the activities of such associations aimed at the social formation, development and self-realization of children and youth in public life, as well as for the protection and protection of their rights.
9. Charitable organizations are understood as voluntary activities of citizens and legal entities for the disinterested (gratuitous or on preferential terms) transfer of property to citizens or legal entities, incl. Money, disinterested performance of work, provision of services, provision of other assistance. The Federal Law "On charitable activities and charitable organizations" establishes the basis for the legal regulation of charitable activities, the specifics of the creation and activities of charitable organizations.
It is prohibited to create and operate public associations whose goals or actions are aimed at forcibly changing the foundations of the constitutional order and violating the integrity of the Russian Federation, undermining the security of the state, creating armed formations, inciting social, racial, national or religious hatred. Founders, members and participants of public associations are citizens (including foreigners) from the age of 18, youth - from 14 years, and children's public associations - from 10 years.
It arises from the moment of state registration of this association in the justice authorities. In this case, he is issued a certificate. To register a public association, it is necessary: an application to the registration authority; charter; extract from the protocol of the congress; information about the founders; proof of payment of the registration fee. Bodies of justice, registering societies. associations, include them in the unified state register of legal entities, open to the public.
Religious associations - a voluntary association of citizens of Russia, other persons permanently and legally residing on its territory, formed for the purpose of joint confession and dissemination of faith and having signs corresponding to this purpose: religion; performing worship; other religious rites and ceremonies; teaching religion and religious education of their followers. Religious associations are separated from the state and are equal before the law. Their legal status is determined by the Federal Law "On freedom of conscience and religious associations" of September 26, 1997. Religious associations do not have the right to interfere in the affairs of the state, to participate in elections to state bodies. authorities and LSG bodies, in the activities of political parties and political movements, as well as to provide them with material and other assistance.
The administrative legal personality of public associations includes a set of rights and obligations belonging to them, which are implemented in relations with citizens, executive authorities and local self-government bodies, state and non-state institutions, enterprises and organizations. The administrative legal personality of public associations determines the types of administrative legal relations, the subjects of which they are.
Despite the differences in the administrative and legal status of various public associations, their statuses have many common features. This is determined by the fact that all public associations:
Formed by individuals and legal entities on a voluntary basis;
Do not have state power;
They are not subjects of lawmaking;
Acting on their own behalf;
They are not commercial organizations, i.e. the purpose of their activities is not to make a profit.
The most important provision that determines the status of public associations is the lack of government guidance on their activities. Intervention of public authorities and their officials in the activities of public associations, and the associations themselves - in the activities of state bodies, with the exception of cases provided for by the Federal Law "On Public Associations". The same principle of mutual non-intervention is characteristic of the relations of public associations with local self-government bodies.
Meanwhile, according to this Law, the state determines the requirements for the content of the charter of public associations, registers them at the request of associations, granting them the rights of a legal entity, ensures the observance of the rights and legitimate interests of associations, supports their activities, regulates the provision of tax and other benefits to them, etc. The body of justice that registers public associations controls the compliance of their activities with the statutory goals, has the right to request their administrative documents, can send its representatives to participate in the events they hold, in cases established by federal law, has the right to issue written warnings to the governing bodies of these associations indicating the specific grounds for their rendering.
Public associations are obliged to comply with the legislation of the Russian Federation, the norms and principles of international law, annually publish a report on the use of their property and inform the body registering the association about the continuation of their activities, admit representatives of this body to ongoing events, assist them in familiarizing themselves with the activities of the association, etc. .
Public associations, in turn, have the right to:
Freely disseminate information about their activities;
Participate in the development of decisions of state authorities and local self-government;
To hold meetings, rallies, demonstrations, processions, picketing;
Establish funds mass media and carry out publishing activities;
Represent and protect their rights, the legitimate interests of their members and participants, other citizens in state authorities, local governments and other public associations;
To fully exercise the powers provided for by laws on public associations;
Take initiatives on various issues of public life, make proposals to public authorities;
Participate in election campaigns (subject to state registration of this public association and if its charter contains a provision on participation in elections).
Public associations may be engaged in entrepreneurial activities if this corresponds to their statutory goals and serves to achieve these goals. Their entrepreneurial activities are regulated by the Civil Code of the Russian Federation and other legislative acts. They may form business partnerships and other economic organizations, as well as to acquire property intended for business activities.
Income from entrepreneurial activity public associations cannot be redistributed among members or participants of these associations and must be used only to achieve statutory goals. At the same time, public associations are allowed to use their funds for charitable purposes.
WPA Institute of Law and Administration
COURSE WORK
Subject :
Administrative and legal status of public associations
Tula 2014
Introduction
Chapter 1. Theoretical basis public associations as subjects of administrative law
1.1 The concept and types of public associations
2 Development of the administrative and legal foundations of the legal status of public associations
3 Rights and obligations of public associations
4The procedure for the creation, reorganization and liquidation of public associations 5 Public control of the activities of public associations Chapter 2. Study of the administrative and legal status of some public associations 2.1 Administrative and legal status of charitable organizations 2 Administrative and legal status of religious public associations Conclusion List of used literature Introduction The expansion of democratic processes in society, the increase in the social activity of citizens contribute to the realization of their rights and legitimate interests through the creation of various kinds of public associations. That is why in Russian Federation The number of public associations is increasing from year to year. For five years, only the Ministry of Justice of the Russian Federation registered 2846 public associations (including 85 political parties and 105 public movements). In general, the country's justice authorities have registered more than 35,000 such formations, including almost 1.5 thousand political parties. Also, the socio-economic changes that have taken place in the Russian Federation in recent years have posed the problem of finding new administrative methods of influencing legal science in front of legal science. public relations on the part of the executive branch, as well as the problem of improving the forms, its interaction with the institutions of civil society. Insufficient social activity of public associations is the most significant problem for the life of our society. This circumstance is due to the fact that public associations are an important part of the rule of law, act as a connecting element between the state and the individual. However, as practice shows, this is not always the case. Meanwhile, it is public associations that are one of the most active participants in socio-economic transformations. In this regard, the ongoing political and legal reforms in our country should be based on the modern theoretical concept of their administrative and legal status. The study of the administrative and legal status of public associations will reveal their true role as an effective element in the mechanism of citizens' access to government institutions, as well as overcome the contradictions that arise during interaction executive bodies state authorities and local governments with civil society institutions. In addition, the administrative-legal status of public associations needs an adequate and scientifically substantiated normative definition. The legal relations of public associations in the field of application of the norms of administrative law represent a significant group. The norms of administrative law regulate various relations with the participation of public associations, and in order for the practice of these relations to develop in accordance with the law, certainty is necessary, which is achieved by improving the legal regulation of the administrative and legal status of public associations. The relevance, complexity and diversity of these and some other problems was the determining factor in choosing the topic of this course work. The purpose of the course work is to study the theoretical provisions that determine the foundations of the administrative and legal status of public associations. The object of the course work is public relations that develop in the administrative and legal sphere with the participation of public associations. The subject of the course work is a set of administrative and legal norms that regulate the mechanism for implementing the legal status of certain types of public associations in the Russian Federation. Objectives of the course work: · explore the administrative and legal foundations of the legal status of public associations in the Russian Federation; · consider the process of development of the administrative and legal foundations of the legal status of public associations; · analyze the concept and types of public associations; · study the procedure for the creation, reorganization and liquidation of public associations; · study public associations as subjects of administrative law; · consider the rights and obligations of public associations as subjects of administrative law; · explore the foundations of public control over the activities of public associations. Research methods: · Theoretical: analysis of literature, regulatory framework on the research problem. Chapter 1. Theoretical foundations of public associations as subjects of administrative law 1 Concept and types of public associations A public association is a voluntary, self-governing, a non-profit formation created on the initiative of citizens united on the basis of a common interest to achieve the goals specified in the charter of a public association,” Art. 5 of the Federal Law of May 19, 1995, "On Public Associations". This Law provides for various forms of exercise by citizens of the constitutional right to association. Citizens have the right to unite in political parties, trade unions, charitable and other organizations. The activity of such associations is regulated not only by the said Law, but also by special federal legislation. Voluntary formation is the most important feature of a public association. At the same time, citizens have the right to create public associations of their choice without prior permission from executive authorities and local governments. Public associations created by citizens are either registered in accordance with the established procedure and acquire the rights of a legal entity, or function without state registration and acquisition of the rights of a legal entity. Members of a public association may be individuals and legal entities - public associations, whose interest in the joint solution of the tasks of this association is formalized by individual statements or documents that allow taking into account the number of members of the public association in order to ensure their equality as its members. The legislation distinguishes five organizational and legal forms of public associations created in the form of an organization, movement, fund, institution and body of public amateur performance, however, fixed membership is provided for by the Law only for public organizations. At the same time, there are clear legal distinctions between movements, foundations, public institutions and bodies of public amateur performance. Each of these associations has its own characteristics. A public organization is a membership-based public association created on the basis of joint activities to protect the common interests and achieve the established goals of the united citizens. Members of a public organization in accordance with its charter may be individuals and legal entities - public associations, unless otherwise established by federal law and laws on certain types of public associations. The highest governing body is the congress (conference) or general meeting. The permanent governing body of a public organization is an elected collegial body accountable to a congress (conference) or general meeting. In the case of state registration of a public organization, its permanent body exercises the rights of a legal entity on behalf of the public organization and performs its duties in accordance with the charter. A public movement is a mass public association consisting of participants and not having membership, pursuing social, political and other socially useful goals supported by the participants. social movement. The highest governing body of a social movement is a congress (conference) or a general meeting. The permanent governing body of a social movement is an elected collegial body accountable to a congress (conference) or general meeting. In the case of state registration of a social movement, its permanent body exercises the rights of a legal entity on behalf of the social movement and performs its duties in accordance with the charter. Public fund - one of the types of non-profit foundations, which is a non-membership public association, the purpose of which is to form property on the basis of voluntary contributions, other receipts not prohibited by law and use this property for socially useful purposes. Founders and property managers public fund not entitled to use the said property for their own benefit. The governing body of a public fund is formed by its founders and (or) participants, or by a decision of the founders of a public fund, adopted in the form of recommendations or personal appointments, or by election by participants at a congress (conference) or general meeting. Public institution - a non-membership public association that aims to provide a specific type of service that meets the interests of the participants and corresponds to the statutory goals of the specified association. The management of a public institution and its property is carried out by persons appointed by the founder (founders). In accordance with the constituent documents, a collegial body may be created in a public institution, elected by participants who are not the founders of this institution and consumers of its services. The body of public amateur performance is a non-membership public association, the purpose of which is to jointly solve various social problems that arise for citizens at the place of residence, work or study, aimed at meeting the needs of an unlimited circle of people whose interests are related to the achievement of the statutory goals and implementation of programs of the public body. amateur activities at the place of its creation. Federal Law of July 19, 1998 No. 112 - FZ "On Amendments and Additions to the federal law"On public associations"" Art. 12.1, according to which “a political public association is a public association whose charter should include participation in the political life of the society by influencing the formation of the political will of citizens, participation in elections to public authorities and local self-government bodies by nominating candidates and the organization of their election campaign participation in the organization and activities of these bodies”. Public associations may voluntarily form associations (unions). Members of an association (union) retain their independence and the rights of a legal entity, the name of the association (union) must contain an indication of the main subject of activity of its members, including the words "association" and "union". Also relying on the legislative base, public associations and organizations, unlike state institutions, do not have powers of authority, cannot make binding decisions and demand their implementation, and also dictate their will. Public associations differ in their activities from political parties, as they do not aim to seize state power and in this sense are not initially political organizations, although their activities may acquire a political character in the manner prescribed by law, as well as in accordance with the charter, constituent documents of a public association or organization. Thus, public associations in Russia are created to involve citizens in the implementation of state policy, put forward civil initiatives aimed at exercising the constitutional rights, freedoms and legitimate interests of citizens and public associations themselves, their activities in the development of civil society and a legal democratic social state in the Russian Federation. Federation. Public associations, in accordance with their charters, constituent documents, can be conditionally divided into: · socio-political, · public-civil, · national cultural, · religious and others. In most cases, each of the designated areas, in turn, is divided into organizations that are different in profile and interests. For example, veterans, youth, children's, women's, cultural and educational, educational, charitable, human rights, professional, creative associations are being formed within the social and civil direction. According to the constituent documents, in accordance with their organizational structure, all these associations are diverse in their fields of activity, covering different complexes of public interests. Public associations also differ in their characteristics, including: · by territorial status: municipal, citywide, regional, interregional, federal, international; · by the nature and direction of activity: societies, associations, centers, organizations of culture, education, enlightenment, socio-political, professional and cultural, etc.; · about belonging to social groups: youth, veterans, women; · on political and ideological lines. The basis for classification may be other criteria: by the scale of activity, methods and modes of action, the degree of organization, by class, national or demographic characteristics. But, public associations, regardless of organizational and legal forms, are equal before the law. Their activities are based on the principles of voluntariness, equality of law, self-government and legality. Public associations are free to determine their internal structure, goals, forms and methods of activity. The activities of public associations must be public, and information about their founding and policy documents public. 2 Development of the administrative and legal foundations of the legal status of public associations Research and development of administrative legislation regulating the administrative and legal status of public associations is important for the formation in our country of legal mechanisms relating to the formation of full-fledged institutions of civil society. In addition, studying the history of the development of legislation on public associations makes it possible to form a new vision of civil society, and can also contribute to the development of adequate administrative and legal mechanisms relating to the relationship between an individual and the state. In addition to the above, the study of the history of legislation on public associations helps to systematize the theoretical and empirical material concerning the functioning of public associations in our country. In the XVIII-XIX centuries. the formation of legislation on public formations took place, however, the legislative acts of this period paid priority attention not to the procedure for the formation of public formations, but to the organization of control (supervision) over them. One of the first legislative acts that determined the administrative and legal status of public formations was the Charter of the Deanery (1782). This normative act gave citizens the opportunity to create public associations themselves. In the legal literature of the late XIX - early XX centuries, various terminology was used to designate the category "public association" (society, association, private society, etc.). Socio-economic transformations of the late XIX century. entailed the intensification of the activities of public formations, however, the legal framework for their activities at that time was practically absent. To create public associations, it was necessary to obtain permission from the Ministry of Internal Affairs and the Ministry of Finance. Public associations that were created and functioned without their permission were declared illegal. The competence of the Ministry of Internal Affairs in regulating the administrative and legal status of public associations was determined by the act of the Ministry of Internal Affairs of April 26, 1905, during this period the manifesto "On Freedom of Unions" was also issued. Following the manifesto, the active creation of political parties, trade unions and other public formations began. On March 4, 1906, the provisional rules "On Societies and Unions" were adopted. A landmark normative legal act in the mechanism of administrative and legal regulation of the activities of public associations was the resolution "On meetings and unions". During the Soviet period, legislation on public associations was also actively developed. In the 20s. 20th century Decree of the All-Russian Central Executive Committee of August 3, 1922 "On the procedure for convening congresses and all-Russian meetings of various unions and associations and on the registration of these organizations" was adopted. not pursuing the goal of making a profit and spreading their activities throughout the entire USSR, and supervising them", February 6, 1928. The Decree of the All-Russian Central Executive Committee and the Council of People's Commissars of the RSFSR approved the regulation "On societies and unions not pursuing profit". In the 30s of the XX century. legislation on public associations also continued to evolve. Thus, on July 10, 1932, the All-Russian Central Executive Committee and Council of People's Commissars of the RSFSR adopted a resolution "On Approving the Regulations on Voluntary Societies and Unions." This act, unlike all the previous ones, quite comprehensively determined the administrative and legal status of public associations. The named normative legal act determined: the order of organization of societies and unions; regime of state control over the activities of voluntary societies and their unions; the procedure for liquidating the activities of public associations. The concept of the mentioned document served as the basis for the subsequent development of administrative legislation on public associations. It should be noted that the decree of 1932 was repealed only in 1992. The current state of the legal regulation of the activities of public associations in the Russian Federation is characterized by extreme breadth. The activities of public associations are regulated by a number of legal acts. These are the Constitution of the Russian Federation, the Civil Code of the Russian Federation, the Federal Law "On Public Associations", as well as: Federal Law No. 95-FZ of July 11, 2001 "On Political Parties", Federal Law No. 10-FZ of January 12, 1996. "On trade unions, their rights and guarantees of activity", Federal Law No. 125-FZ of September 26, 1997 "On freedom of conscience and religious associations" and many others. The content of the administrative-legal status consists of their rights and obligations, which in their totality express the most important and essential connections of a public association with executive authorities. In this regard, the administrative-legal status of public associations forms the basis for the development of other rights and obligations of this subject of administrative law. Structurally, the administrative and legal status of public associations is determined by: rights, obligations, guarantees for the exercise of rights and the fulfillment of obligations, as well as legal responsibility. The legal possibilities of a public association in the sphere of executive power are numerous and varied. Established by administrative legislation in accordance with the constitutional principles, the rights and obligations of this subject fix their relations and connections with the executive authorities that carry out executive and administrative activities. They may be due to: · realization of the rights belonging to a public association under the law; · fulfillment of the obligations assigned to the public association in the field of government controlled;
· violation by the governing bodies (officials) of the rights and interests of the public association; · violation by a public association of its legal obligations in the field of public administration. Thus, the classification of the subjective rights and obligations of public associations in the field of public administration can be as follows: · general rights and obligations of a public association in the field of public administration; · special rights and obligations of a public association in the field of public administration, in particular in the field of protection public order and ensuring public safety. The group of general rights and obligations of a public association in the field of public administration in accordance with the current legislation includes the fact that a public association has the right to: · freely disseminate information about their activities; · take part in the development of decisions of state authorities and local self-government in the manner and to the extent prescribed by law; · hold meetings, rallies, demonstrations, marches and picketing; · establish mass media and conduct publishing activities; · represent and protect their rights, legitimate interests of their members and participants, other citizens in state authorities, local governments and public associations; · exercise in full the powers provided for by laws on public associations; · take initiatives on various issues of public life, make proposals to public authorities; · participate in election campaigns (in the case of state registration of an association and if there is a provision in the charter of this association on its participation in elections), etc. (Article 27 of the Law). · Laws on public associations may provide for additional rights for specific types of public associations. In its activities, a public association is obliged to: · comply with the legislation, generally recognized principles and norms of international law relating to the scope of its activities, as well as the norms provided for by its charter and other constituent documents; · annually publish a report on the use of its property or make the said report accessible, inform the body registering the association about the continuation of its activities and indicate the actual location of the permanent governing body, its name and data on the leaders of the association in the amount of information included in the unified state register of legal entities; · submit, at the request of the body registering the association, decisions of the governing bodies and officials of the association, as well as annual and quarterly reports on its activities in the amount of information provided to the tax authorities; · allow representatives of the body registering the association to attend events held by the public association, assist representatives of the body registering the public association in familiarizing themselves with the activities of the association. If we talk about guarantees for the exercise by a public association of its legal capacity, then they can be classified into: general (ideological, social, political, economic, etc.), special (legal) and organizational guarantees. Exploring the general guarantees of the administrative and legal status of public associations, we come to the conclusion that they are based on constitutional provisions regarding the fact that the Russian Federation is a social state. The Russian Federation recognizes ideological and political diversity, etc. IN modern conditions for the full implementation of the rights granted to public associations, a special place belongs to economic guarantees. The Constitution of Russia recognizes and protects equally private, state, municipal and other forms of ownership. And although this rule does not directly indicate the need to protect the property of public associations, it applies to it as well. The property right of public associations is enshrined in a number of federal laws: "On non-profit organizations", "On charitable activities and charitable organizations", "On public associations", "On trade unions, their rights and guarantees of activity", etc. A significant role in the formation the property of public associations is played by income from business activities. However, the current legislation defines some features of the implementation of entrepreneurial activities by public associations, in particular, determines its statutory nature, and also establishes the procedure for distributing income from entrepreneurial activities. Quite a lot of attention has been paid to the problem of the possibility of public associations to carry out entrepreneurial activities in the literature, and mainly through the prism of the fact that public associations are not entitled to carry out the relevant activities, since this contradicts the legal nature of these organizations. This situation was very capaciously, but at the same time meaningfully described by Ivanova M.I.: “At first glance, in the theory of non-profit legal entities, there are no special“ puzzling problems ”, as K.P. Pobedonostsev said. Yes, and there is nothing particularly theoretical in the sub-institute itself Everything seems to be clear in this part: on the one hand - non-commercial legal entities with their special legal capacity, on the other - the legal right of these entities to entrepreneurial activity, which in the doctrine is prudently called not the main, or side. This provision looks logical and understandable: since non-commercial legal entities do not have enough resources for their core activities, then let them earn money. This is exactly what is reflected in the current legislative concept, which, however, is supposed to be corrected due to contradictions and inconsistencies that have come to light in practice. Organizational guarantees are closely related to the economic guarantees of the administrative and legal status of public associations. Legislation quite consistently distinguishes between the activities of state authorities and public associations. According to the law on public associations, the interference of public authorities and their officials, as well as the interference of public associations in the activities of public authorities and their officials, is not allowed, except as provided by law. The state ensures the observance of the rights and legitimate interests of public associations, the legislation regulates the provision of tax benefits to public associations. The law establishes state support for certain types of public associations, which can be expressed in the form of targeted financing of certain socially useful programs of public associations, the provision of grants, state orders, etc. Thus, the state ensures the observance of the rights and legitimate interests of public associations, supports their activities, legally regulates the provision of tax and other benefits to them. administrative legal charitable religious 1.4 The procedure for the creation, reorganization and liquidation of public associations According to general order, public associations are created on the initiative of at least three individuals, as founders along with individuals may include legal entities - public associations. Decisions on the creation of a public association, on the approval of its charter and on the formation of governing and control and audit bodies are taken at a congress or general meeting. From the moment the above decisions are made, a public association is considered to be established: it carries out its statutory activities, acquires rights (with the exception of the rights of a legal entity) and assumes obligations in accordance with applicable law. The justice authorities that register public associations include them in the unified state register of legal entities, open to the public, and also publish lists of political public associations in the media. The range of grounds on which registration of a public association may be denied is limited by Art. 23 of the Federal Law "On public associations": · if the charter of a public association contradicts the Constitution of the Russian Federation, the constitutions (charters) of the constituent entities of the Russian Federation, the provisions of Articles 16, 19, 20, 21 of this Federal Law and laws on certain types of public associations; · if not presented complete list constituent documents or they are executed in an improper order; · if a public association with the same name was previously registered in the territory within which this association operates; · if the body registering public associations has established that the constituent documents submitted for registration contain unreliable information; · if the name of a public association offends morality, national and religious feelings of citizens. The legal capacity of a public association as a legal entity arises from the moment of its state registration. The study of the legislation on public associations allows us to conclude that at present, the requirements for founders, members and participants of public associations are fairly consistently defined, as well as the procedure for state registration of public associations is quite clearly defined. However, as analysis shows information materials Ministry of Justice of Russia, a number of public associations violate the provisions of the law on state registration of legal entities. Violations, as a rule, are expressed in the fact that they do not inform the body that made the decision on the state registration of the public association about the continuation of its activities, indicating the actual location of the permanent governing body, its name and data on the leaders of the public association. Given the prevailing judicial practice, as well as the recommendations of the Ministry of Justice of Russia, if public associations fail to comply with the above requirement, the departments of justice for the constituent entities of the Russian Federation prepare appropriate claims for the liquidation of these public associations. At present, it still remains actual problem the use by a number of public associations of state symbols on seals, letterheads, certificates of their associations, etc. The procedure for reorganization and liquidation is determined in Art. 25, 26 of the Federal Law "On public associations". The reorganization of a public association is carried out by decision of the congress (conference) or general meeting, or by judicial procedure. State registration of a public association newly formed after reorganization shall be carried out in accordance with the procedure established by Article 21 of this Federal Law. The property of a public association that is a legal entity shall, after its reorganization, be transferred to newly established legal entities in the manner prescribed by the Civil Code of the Russian Federation. And the property remaining as a result of the liquidation of a public association, after satisfying the requirements of creditors, is directed to the purposes provided for by the charter of the public association, or, if there are no relevant sections in the charter of the public association, to the purposes determined by the decision of the congress (conference) or general meeting on the liquidation of the public association , and in controversial cases - by a court decision. The decision on the use of the remaining property is published by the liquidation commission in the press. Thus, the reorganization of a public association is carried out by decision of the congress or general meeting. The events of recent years have clearly demonstrated the need to create an administrative and legal mechanism for a more stringent and prompt suppression of any form of extremist activity on the part of public associations. The Constitution of Russia, the Federal Law of July 25, 2002 "On Counteracting Extremist Activity", the Code of Administrative Offenses of the Russian Federation and a number of other regulatory legal acts are aimed at preventing and suppressing extremist activity, however, as practice shows, the implementation of Art. 20.3 of the Code of Administrative Offenses of the Russian Federation is complicated by the fact that the disposition of this article is uncertain. In this regard, it would be quite appropriate if Supreme Court The Russian Federation gave an official clarification on the procedure for applying the law on countering extremist activity and the relevant articles of the Code of Administrative Offenses of the Russian Federation. Also, a public association may be liquidated by decision of a congress (conference), as well as by a court decision in the event of gross violation public association of human and civil rights and freedoms, as well as repeated and gross violations of the Constitution and legislation of the Russian Federation. The liquidation of a public association by a court decision means a ban on its activities. The decision to liquidate a public association that is a legal entity shall be sent to the body that registered the public association in order to exclude the specified association from the unified state register of legal entities. 5 Public control of the activities of public associations The state almost never let public associations out of its field of influence. In different historical periods, the sphere of such influence was different. The activities of public associations are controlled by various state authorities. Each public authority has its own competence in the studied area of public administration. Control (supervision) is one of the objectively necessary phenomena of social life and is one of the ways to ensure law and order. Supervision over the observance of laws by public associations is carried out by the Prosecutor's Office of the Russian Federation. The powers of the prosecutor's office in the field of supervision over the activities of public associations are enshrined not only in the legislation on public associations, but also in the Law of the Russian Federation "On the Prosecutor's Office". Thus, the Law "On the Prosecutor's Office" provides the prosecution authorities with broad powers, which they exercise in various fields state administration, including in the course of supervision by the prosecutor's office over the activities of public associations. The prosecutor has the right to file a protest against a legal act that is contrary to the law, to issue a motion to eliminate violations of the law, to make a decision to initiate proceedings on cases of administrative offenses, as well as issue a warning about the inadmissibility of violations of the law. The Law on Public Associations gives prosecutors additional powers to supervise their activities. The prosecutor's office, along with the bodies of justice, can send applications to the court to suspend the activities of public associations. In this case, the rights of a public association as a founder of the mass media are suspended, such a public association is prohibited from organizing meetings, rallies, demonstrations and other mass events, taking part in elections, using bank deposits, with the exception of settlements on economic activity And employment contracts compensation for damages caused by his actions, as well as fines. The main subject of control over the activities of public associations is the Ministry of Justice of Russia. This conclusion follows from the analysis of the legislation on public associations, as well as from the analysis of the regulations on the Ministry of Justice of Russia. Despite the changes that have taken place in the system and structure of federal executive bodies, the control function is still the most important component of the work of the Ministry of Justice of the Russian Federation. Control by the bodies of the Ministry of Justice of Russia over the activities of public associations begins already in the process of registration of public associations. In addition, control over the activities of public associations is carried out in the process of visiting by representatives of the Ministry of Justice mass events held by public associations. One of the effective forms of control over the activities of public associations is the obligation of public associations to annually inform the body that decides on the registration of public associations about the continuation of their activities, indicating the actual location of the permanent body, its name and data on the leaders of the public association in the amount of information included in the unified state register of legal entities. In addition to the bodies of the Ministry of Justice of Russia, control over the activities of public associations is carried out by financial bodies, bodies exercising environmental, fire and sanitary and epidemiological control (supervision), etc. Chapter 2. Study of the administrative and legal status of some public associations 1 Administrative and legal status of charitable organizations The Law on Public Associations stipulates that the activities of certain types of public associations may be regulated by special laws. The first among them was the Federal Law of August 11, 1995 "On charitable activities and charitable organizations." According to this Law, a charitable organization must comply with all the main characteristics of a public association, as defined by the Law on Public Associations. Created for the implementation of social priority goals, a non-profit charitable organization must have the most important property: its activities should be disinterested in nature - gratuitous or on preferential terms. Preferential conditions mean granting to philanthropists certain benefits and benefits (primarily of a material nature), stimulating this kind of social priority activity. However, state guarantees - the provision of tax and property benefits - apply only to charitable organizations, but not to legal entities and individuals who are sponsors of charitable organizations (Article 18 of the Law on Charitable Organizations). Charitable organizations, like all other public associations, are not entitled to redistribute funds received as a result of entrepreneurial activity among their members or participants. In accordance with an article of the Law on Charitable Activities, a charitable organization is not entitled to use more than 20% financial resources spent for the financial year, for the remuneration of administrative and managerial personnel. Thus, such a form of illegal redistribution of funds is impossible among members or participants of charitable organizations. The Law on Charitable Activities, as well as the Law on Non-Commercial Organizations, does not specify the body for the state registration of charitable organizations. This procedure must be carried out "in the manner prescribed by federal laws." Administrative and legal relations arise in the process of granting various benefits and benefits to charitable organizations by executive authorities, for example, the transfer of ownership of state property. The Law on a Charitable Organization regulates the forms of control in more detail: the authority that registers a charitable organization has the right to control its financial and economic activities “on the use of property and expenditure of funds”. This means that all information confirming the legal obligations of the organization with any legal entities and individuals can be controlled. In addition to active forms of control carried out by officials of the registration authority directly on the spot, passive forms are also provided: a charitable organization, submitting an annual report on its activities to the registration or tax authority, initiates the emergence of administrative and legal relations. In addition to the control of the registration authority over the financial and economic activities of charitable organizations, an important place is given to control tax authorities, which control the sources of income of organizations, the amount of funds they receive and the payment of taxes. In this case, the control activities of the registration and tax authorities are largely identical: its object is the same information about the social and legal relations of charitable organizations. Obviously, all kinds financial control must be carried out by the tax authorities. Thus, there are obvious differences in the legal regulation of the activities of public associations in the basic Law on public associations and in later laws on certain types of public associations. The status of certain types of legal entities, for example, production cooperatives, is very reminiscent of the legal status of public associations. However, this form of joint activity of citizens pursues the main goal of making a profit, which is completely unacceptable for the status of non-profit associations. Of course, they can adopt special laws on certain types of associations, but their compliance with the provisions of the basic Law on Public Associations is mandatory. In fact, however, this principle is not always observed. 2.2 Administrative and legal status of religious public associations In accordance with the provisions of the Constitution of the Russian Federation and the Law of the Russian Federation of September 26, 1997 “On Freedom of Conscience and Religious Associations”13, every citizen has the right to freedom of conscience and freedom of religion. A religious association in the Russian Federation is a voluntary association of citizens of the Russian Federation, other persons permanently and legally residing on the territory of the Russian Federation, formed for the purpose of joint confession and dissemination of faith, as well as having the following features corresponding to this purpose: · worship of a particular religion; · performance of divine services and other religious rites and ceremonies; · teaching religion and religious education of their followers. Religious associations may be created in the form of religious groups and religious organizations. However, the creation of religious associations in state authorities, other state bodies, state institutions and municipal organizations is prohibited. A religious group is a voluntary association of citizens formed for the purpose of joint confession and dissemination of faith, carrying out activities without state registration and without acquiring the legal capacity of a legal entity. A religious organization operates on the basis of a charter, which is approved by its founders or a centralized religious organization and must meet the requirements of the civil legislation of the Russian Federation. Religious associations are separated from the state. The state, its bodies and officials do not have the right to interfere: · in the determination by a citizen of his attitude to religion and religious affiliation; · in the upbringing of children by parents or persons replacing them, in accordance with their convictions and taking into account the child's right to freedom of conscience and freedom of religion. The state does not impose on religious associations the performance of the functions of state authorities, other state bodies, public institutions and local self-government bodies and does not interfere in the activities of religious associations, if it does not contradict the law. A religious association is created and carries out its activities in accordance with its own hierarchical and institutional structure. Selects, appoints and replaces its personnel in accordance with its own regulations, does not perform the functions of state authorities, other state bodies, state institutions and local governments. Also, a religious association does not participate in elections to state authorities and local self-government bodies, does not participate in the activities of political parties and political movements, and does not provide them with material and other assistance. Religious associations have the right: · establish and maintain religious buildings and structures, other places and objects specially designed for worship, prayer and religious meetings, religious veneration (pilgrimage); · conduct religious ceremonies in medical and preventive and hospital institutions, orphanages, nursing homes for the elderly and disabled, in institutions that carry out criminal penalties in the form of deprivation of liberty; · produce, acquire, export, import and distribute religious literature, printed, audio and video materials and other religious items; · enjoy the exclusive right to establish organizations that publish liturgical literature and produce religious objects; · carry out charitable activities, both directly and through the establishment of charitable organizations; · create cultural and educational organizations, educational and other institutions, as well as establish mass media; · install and maintain international connections and contacts; · religious associations have the right to own property, as well as they have the right to carry out entrepreneurial activities and create their own enterprises. Supervision over the implementation of legislation on freedom of conscience, freedom of religion and religious associations is carried out by the prosecutor's office. The body that registered a religious organization exercises control over its observance of the charter regarding the goals and procedure for its activities. Persons guilty of violating the law on freedom of conscience may be subject to violations of the law on freedom of religion and religious associations, which entails criminal, administrative and other liability in accordance with the law. Thus, the following public relations in the sphere of confessional activity are regulated by the norms of administrative law: When determining the status of a religious organization as a legal entity. The necessary conditions for the civil and administrative legal capacity of a religious association are state registration and, in some cases, empowering the organization as a licensee; In the process of liquidation of a confessional association, prohibition of its activities or control over it. As a special kind of control functions, one can consider the duty of a registered (centralized or local) religious association to annually submit to the justice authority information on the continuation of its activities; When vesting religious organizations with the right of ownership to religious buildings and structures; In the exercise by a clergyman of secular rights and duties, primarily military duty. The head of state is empowered to grant the clergy a deferment from conscription for military service and exempt from military training in peacetime; When performing religious rites and ceremonies. It's about on the procedure for the implementation of ritual activities in penitentiary institutions, the Armed Forces of the Russian Federation and departmental military formations. Executive authorities control the compliance with federal legislation of the internal regulations of religious organizations, primarily charters. The executive branch also interacts with confessional associations in determining the status of religious education institutions. Religious education or its foundations can be obtained not only in institutions of confessional education, but also in state or municipal educational institutions.
Conclusion Considering public associations as one of the subjects of administrative law, it should be emphasized that this is one of the fundamental constitutional and legal institutions. The norms on public associations are contained in parts 4, 5 of Art. 13; Part 2 Art. 19; Part 1 Art. thirty; Part 2 Art. 46 of the Constitution of the Russian Federation. These articles give general characteristics public associations as a subject of Russian law. A more detailed description of public associations as a subject of administrative law is contained in the Federal Law of May 19, 1995 "On Public Associations", which is the basic law regulating the organization, status and activities of public associations; as well as in other federal laws, regulations, as well as charters of unions, associations and other associations of citizens. The current legislation of the Russian Federation regulates the activities of the public association system. It fixes the status of unions of public associations and entities included in their systems. "The new legislation of the Russian Federation on public associations needs a clearer delimitation of the functions of associations and state bodies." The basic principles of their relationship are regulated by the current Law on Public Associations. It should be noted that the differences in the types of public associations are of a formal nature, which confirms the absence of any indications about the status of structural units. Although the Law provides for four types of such units, it does not define the differences in the legal status of an organization, branch, branch and representative office. The solution of this problem is of great practical importance, since the fact of the state registration of the association in the justice authorities depends on the presence of subdivisions on the territory of Russia. There are obvious contradictions between the basic Law on public associations and laws on individual public associations, as well as contradictions between the regulatory legal acts of the subjects of the federation, issued on issues of joint jurisdiction with the central government, and federal laws. List of used literature: 1.Administrative Law: A Textbook (2nd edition, revised and expanded), ed. L.L. Popova, M.: Yurist, 2005. p. 37-42. Bahrakh D.N. Administrative law of Russia: Textbook for universities. Moscow: Norma - Infra. - 2003. p. 53-59. Gutnikov O.V. Ownership of non-profit organizations // Ownership: actual problems. - M.: Norma, 2008. p.102. Ivakin A.A. Characteristics of the content of the administrative and legal status of public associations // Modern law. - 2006. - No. 12. Ivanova M.I. The constitutional principle of equality of public associations before the law in the Russian Federation // Constitutional and municipal law. - 2010 - №2. Ivanova M.I. Features of the legal status of public associations // Political and legal priorities of the socio-economic development of Russia: materials of the international scientific-practical conference. Saratov: publishing house " scientific book", 2009. pp. 43-95. Isaev I.A. History of the State and Law of Russia. - M.: Progress.-2006. pp.47-49. Code of the Russian Federation on Administrative Offenses of December 30, 2001 No. 195-FZ (as amended on October 2, 2012). "Rossiyskaya Gazeta", No. 256, December 31, 2001, "Parliamentskaya Gazeta", No. 2-5, 01/05/2002, " Collection of Legislation of the Russian Federation", 01/07/2002, No. 1 (part 1), art. 1. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (subject to amendments made by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation of December 30, 2008 No. 6-FKZ, of December 30, 2008 No. 7-FKZ) // Rossiyskaya Gazeta, No. 7, 01/21/2009. Kozlova Yu.M., Popova L.L. Administrative law. Textbook - Moscow. Lawyer. 2002. p. 80-84. Kubankina E.I., Pavlenko V.V. Administrative law: Tutorial- M.: Publishing and Trade Corporation, 2006. p.112. Melnik T.E. Suspension and prohibition of the activities of public associations: directions for improvement // "Journal of Russian Law" - 2003 - No. 4. Ovsyanko D.M. Administrative Law: Textbook. - Ed. 3rd, revised. and additional - M.: Jurist, 2002. pp. 98-108. Semina O.V. Legal regulation activities of public associations in the Russian Federation // Law and State: Theory and Practice - 2007 - №2. Soboleva Yu.V. Administrative and legal status of public associations: concept and structure // Citizen and Law. - 2008. - No. 6. Federal Law No. 10-FZ of January 12, 1996 "On trade unions, their rights and guarantees of activity" // Collection of Legislation of the Russian Federation. 1996. No. 3. Federal Law No. 125-FZ of September 26, 1997 "On freedom of conscience and religious associations" // Collection of Legislation of the Russian Federation. 1997. No. 39. Art. 4465 Federal Law No. 82-FZ of May 19, 1995 "On Public Associations" // Collection of Legislation of the Russian Federation. 1995. No. 21. Art. 1930. Federal Law of August 11, 1995 No. 135-FZ "On Charitable Activities and Charitable Organizations" (as amended on December 23, 2010) // Collection of Legislation of the Russian Federation, August 14, 1995, No. 33. Cheremnykh G.S. Public associations: regulation of activities // Russian justice.- 1996, - №4.Similar works to - Administrative and legal status of public associations
The administrative-legal status of public associations is their legal position in the sphere of public administration.
It is determined by the same elements as the administrative-legal status of citizens. First of all, this is a complex of their rights and obligations, enshrined in the norms of administrative law, administrative legal capacity and administrative capacity.
The set of fundamental rights and obligations of public associations is established in accordance with Art. 27 and 29 of the Law of the Russian Federation "On Public Associations". Public associations have the right:
freely disseminate information about their activities;
participate in the development of decisions of state authorities and local governments in the manner and to the extent provided for by this Federal Law and other laws;
hold meetings, rallies, demonstrations, marches and picketing;
establish mass media and carry out publishing activities;
represent and protect their rights, legitimate interests of their members and participants, as well as other citizens in state authorities, local governments and public associations;
exercise in full the powers provided for by laws on public associations;
take initiatives on various issues of public life, make proposals to public authorities;
participate in election campaigns (in the case of state registration of a public association and if there is a provision in the charter of this public association on its participation in elections).
Public associations are obliged:
comply with the legislation of the Russian Federation, the generally recognized principles and norms of international law relating to the scope of their activities, as well as the norms provided for by their charters and other constituent documents;
publish annually a report on the use of their property or make the said report accessible;
annually inform the body registering public associations about the continuation of its activities, indicating the actual location of the permanent governing body, its name and data on the leaders of the public association in the amount of information included in the unified state register of legal entities;
submit, at the request of the body registering public associations, decisions of the governing bodies and officials of the public association, as well as annual and quarterly reports on its activities in the amount of information submitted to the tax authorities;
allow representatives of the body registering public associations to the events held by the public association;
provide assistance to representatives of the body registering public associations in getting acquainted with the activities of the public association in connection with the achievement of statutory goals and compliance with the legislation of the Russian Federation.
The second element of the administrative-legal status of public associations is the administrative legal capacity and administrative capacity. If citizens first have administrative legal capacity, and only after reaching a certain age the state recognizes their ability to exercise these rights and fulfill their duties (capacity) by their actions, then the situation is somewhat different with public associations.
It is clear that the administrative legal capacity of a public association arises from the moment of registration of its charter. However, unlike citizens, the state from the same moment recognizes the ability of a public association to exercise its rights and fulfill its obligations. Thus, the administrative legal capacity and administrative capacity of public associations appear simultaneously - from the moment of its inception. This circumstance gives reason to combine the two named categories into one - administrative legal capacity (legal personality).
In accordance with Art. 21 of the Law of the Russian Federation "On Public Associations", a public association may not be registered with the justice authorities. In this case, this association does not acquire the rights of a legal entity (and, therefore, the right to speak on its own behalf, mediating its members or participants). In addition, without a charter registered (and therefore recognized) by the state, the existence of a public association is impossible, based on its definition given by the named Law. It follows that a public association is considered to have arisen from the moment of its registration by the Ministry of Justice of the Russian Federation. From the same moment, their administrative legal personality arises (the ability to be the subject of administrative-legal relations).
More on the topic § 2. The concept and foundations of the administrative and legal status of public associations:
- Legal status of the notarial chamber and the bar association. Comparative analysis
- § 1. The concept and content of the administrative and legal status of individuals
- § 1. The concept and content of the administrative and legal status of organizations
- § 5. The concept, types and legal status of civil servants
- §2. Personal security as an element of the administrative and legal status of a citizen
- § 1. Positive legal norms as an element of the mechanism of administrative and legal protection of the political rights of Russian citizens.
A.A. IVAKIN, Applicant of the Moscow University of the Ministry of Internal Affairs of Russia, Senior Inspector of the HOZU of the Central Internal Affairs Directorate of Moscow In modern conditions, new administrative methods of influencing public relations on the part of the executive power, as well as forms of relationships with civil society institutions, are needed. Public associations are an integral part of civil society, where individuals can exercise their interests (choice) under the protection of law. Civil society is not the whole of society and not the whole people, but only the best part of it, primarily the intelligentsia, the middle class as the most developed and progressive part of society. There are about 500,000 public (non-governmental) associations in Russia, and 2 million in the USA.
This article was copied from https://www.site
A.A. IVAKIN,
Applicant of the Moscow University of the Ministry of Internal Affairs of Russia, Senior Inspector of the Khozu Department of Internal Affairs of Moscow
In modern conditions, new administrative methods of influencing public relations on the part of the executive power, as well as forms of relationships with civil society institutions, are needed. Public associations are an integral part of civil society, where individuals can exercise their interests (choice) under the protection of law. Civil society is not the whole of society and not the whole people, but only the best part of it, primarily the intelligentsia, the middle class as the most developed and progressive part of society. There are about 500,000 public (non-governmental) associations in Russia, and 2 million in the USA.
A public association is a voluntary, self-governing, non-profit formation created on the initiative of citizens united on the basis of common interests to achieve common goals specified in the association's charter (Article 5 of the Federal Law of May 19, 1995 No. 82-FZ "On Public Associations"; hereinafter referred to as the Law on Public Associations).
Public associations are one of the most active participants in socio-economic transformations. The ongoing political and legal reforms in our country should be based on a modern theoretical concept of their administrative and legal status, revealing their true role as an effective element in the mechanism of citizens' access to government institutions, eliminating contradictions in the interaction of executive government bodies and local governments with institutions civil society.
The content of the right of citizens to associate, the main state guarantees of this right, the status of public associations, the procedure for their creation, operation, reorganization and (or) liquidation are determined by the Civil Code of the Russian Federation, the Law on Public Associations and other federal laws on certain types of public associations - dated 06/07/1995 No. 135-FZ "On charitable activities and charitable organizations", dated 06.28.1995 No. 98-FZ "On state support of youth and children's public associations", dated 12.01.1996 No. 7-FZ "On non-profit organizations", dated 12.01.1996 No. 10-FZ "On trade unions, their rights and guarantees of activity."
The successful functioning of public associations is possible only on the basis of improving their administrative and legal status. The legal ties of public associations, primarily constitutional and legal and civil law, are very numerous and varied. A significant group is represented by legal relations in the field of administrative law, which determine the goals of creating public associations, the procedure for their creation, including state registration, rights, obligations and guarantees, the procedure for suspending activities, issues of administrative responsibility, as well as the procedure for their liquidation, etc.
The administrative and legal status of public associations includes in its structure a system of rights, obligations, guarantees for the normal implementation and protection of these rights and obligations, legal responsibility, which differs in many respects from other types social responsibility. The administrative and legal status of public associations is an integral part of their general legal status. In addition, the administrative-legal status of public associations is characterized by species originality, the presence of legal rights, obligations, guarantees and forms of legal responsibility inherent only to it.
In the administrative-legal institution of rights, obligations and guarantees of public associations, the following legal phenomena can be distinguished:
subjective constitutional rights, obligations, civil, administrative and other rights and obligations of a potential nature arising directly from the law;
Subjective rights, obligations arising on the basis of certain legal facts and implemented within the framework of specific administrative-legal relations.
A significant group is represented by the legal relations of public associations in the sphere of application of the norms of administrative law, which regulates the most diverse relations of public associations with government bodies. And in order for the practice of these relations to develop in accordance with the law, certainty is necessary, which is achieved by regulating the administrative and legal status of public associations in Russia.
In legal science, a common understanding of the concepts of "legal status" and "legal status" has not yet been achieved. Some researchers propose to distinguish between them, which cannot be considered successful, primarily because the word "status" just means the state, position of someone or something. In some works on the general theory of law and administrative law, the authors, with certain reservations, proceed from the fact that the concept of “administrative-legal status” may be similar to one of the definitions of legal status established in science: everything that somehow fixes the position of the subject of law. The legal status of a public association is a generalizing image, a scientific abstraction that manifests itself in various legal institutions, one of which is the administrative-legal status.
The administrative-legal status expresses the most important and essential connections of a public association with the state authorities of the country. The administrative-legal status of a public association, on the one hand, forms the basis for the formation and implementation of other rights and obligations, concretizing and developing in them, and on the other hand, it is directly included in any of the legal statuses as its most important part.
The administrative and legal status of a public association in Russia is a system of rights granted to it and duties assigned to it, as well as responsibility in the field of public administration.
Many legal scholars consider the administrative-legal (and legal) status as a complex phenomenon that combines not only rights, duties, responsibilities, but also a number of other elements: principles, legal capacity, guarantees, etc. Moreover, offering different approaches to the number of elements, express points of view, often in many respects opposite to each other. The basis, the initial element of any status, its main content is the corresponding rights and obligations, guarantees and legal liability. They determine the content of the administrative-legal status. Guarantees play important role in the mechanism of realization by a public association of its rights and fulfillment of the duties assigned to it. The guarantees of the administrative and legal status of public associations include political, ideological, social, economic, organizational and legal guarantees. The latter are contained in the legislation of various branches of law - in the Constitution of the Russian Federation, the Civil Code of the Russian Federation, the Tax Code of the Russian Federation, the Criminal Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, etc.
The administrative legal personality of a public association arises from the moment a decision is made on its creation, on the approval of the charter and the formation of the governing and control and auditing bodies by the congress (conference) or general meeting. The association carries out its activities and acquires rights, with the exception of the rights of a legal entity, assumes the obligations provided for by the Law on Public Associations. The legal capacity of a public association as a legal entity arises from the moment of its state registration. The procedure for state registration is fixed in the Law on Public Associations and Federal Law No. 129-FZ of 08.08.2001 “On State Registration of Legal Entities and individual entrepreneurs". Legislative provisions are detailed in the Rules for considering applications and making a decision on state registration, approved by order of the Ministry of Justice of Russia dated March 25, 2003 No. 68.
Some researchers believe that legal capacity embodies the general, abstract legal ability (possibility) of a subject recognized by the state to be a participant in relations regulated by law, that is, the ability to be a bearer of rights and obligations. The scope of rights and obligations, depending on the circumstances, may vary, but does not affect the legal capacity itself. The administrative legal capacity of a public association is the ability to be the subject of rights and obligations in the sphere of public administration.
The scope and content of the administrative legal capacity of a public association are established and modified by the competent state authorities in accordance with the norms of administrative law, and the exercise of legal capacity is limited to the framework of state administration. Administrative legal capacity serves as the basis for the administrative capacity of a public association, is necessary condition realization of this legal capacity, as well as the subjective rights and obligations of a public association in specific administrative and legal relations.
The administrative capacity of a public association is the ability, recognized by it, to acquire rights and obligations of an administrative-legal nature and to exercise them by their actions. It includes the ability of a public association to bear responsibility for committed offenses in accordance with legal acts.
The legal possibilities of a public association in the sphere of executive power are numerous and varied. The rights and obligations of this subject established by the administrative legislation establish relations and ties with the executive authorities that carry out executive and administrative activities. Relationships may develop in connection with:
· realization of the legal rights belonging to the public association;
· Fulfillment of the duties assigned to the public association in the field of public administration;
· violation by the governing bodies (officials) of the rights and interests of the public association;
· Violation by a public association of its legal obligations in the field of public administration.
It is possible to classify the subjective rights and obligations of public associations in the field of public administration into general and special (in particular, in the field of protecting public order and ensuring public safety). The division of subjective rights and obligations gives a holistic view of the administrative and legal status of public associations and contributes to the most profound disclosure of the corresponding rights and obligations of public administration bodies and those arising from them in connection with the exercise by public associations of their rights and obligations in the field of public administration.
The group of general rights and obligations of public associations includes the following rights(Article 27 of the Law on Public Associations):
· freely disseminate information about their activities;
take part in the development of decisions of state authorities and local governments in the manner and to the extent provided for by law;
· hold meetings, rallies, demonstrations, marches and picketing;
· Establish mass media and carry out publishing activities;
· to represent and protect their rights, the legitimate interests of their members and participants, as well as other citizens in state authorities, local governments and public associations;
· exercise the powers stipulated by the laws on public associations;
· take initiatives on various issues of public life, make proposals to public authorities;
· participate in election campaigns (in the case of state registration of the association and if there is a provision in the charter on its participation in elections).
In its activities, a public association is obliged (Article 29 of the Law on Public Associations):
· comply with the law, generally recognized principles and norms of international law relating to the scope of its activities, as well as the norms provided for by its charter and other constituent documents;
publish annually a report on the use of their property or make it accessible, inform the body registering associations about the continuation of their activities, indicating the location of the permanent governing body, its name and data on the leaders of the association in the amount of information included in the Unified State Register legal entities;
· submit, at the request of the body registering the association, decisions of the governing bodies and officials of the public association, as well as annual and quarterly reports on its activities to the extent of the information provided to the tax authorities;
· allow representatives of the body registering the association to the events held by the public association, as well as assist representatives of the registering body in getting acquainted with the activities of the association.
In case of violation by a public association of the Constitution of the Russian Federation, legislation and the commission of actions that contradict the statutory goals, the federal body of state registration or its appropriate territorial body or the Prosecutor General of the Russian Federation or a corresponding prosecutor subordinate to him submits to the governing body of the public association a submission on violations and sets a time limit for their elimination. If the violations are not eliminated, the body or official who made the relevant submission has the right to suspend the activity of the public association for up to 6 months by its decision. The decision to suspend the activities of a public association until the court considers an application for its liquidation or prohibition of its activities may be appealed against in court. The activities of a public association may also be suspended in the manner and on the grounds provided for by Federal Law No. 114-FZ of July 25, 2002 “On Counteracting Extremist Activity”. Responsibility for violation of the legislation of public associations that do not have the rights of a legal entity shall be borne by persons who are members of the governing bodies of these associations.
When public associations, including those that do not have the rights of a legal entity, commit acts punishable by criminal procedure, persons who are members of the governing bodies of these associations, when proven guilty, may, by court decision, be held liable as leaders of criminal communities (Article 210 of the Criminal Code of the Russian Federation ). Other members and members of associations shall bear responsibility for those criminal acts in the preparation or commission of which they participated.
Bibliography
1 See: Orlova O.V. Civil society and personality: political and legal aspects. - M., 2005. S. 19.
2 See: Zidenton L. Democracy in Europe. - M., 2001. S. 152.
3 See: Semin N.L. About the US registration legislation // USA and Canada: economics, politics, ideology. 2006. No. 4. P. 90.
4 See: Soboleva Yu.V. Public associations as subjects of administrative law: Abstract of the thesis. dis. ... cand. legal Sciences. - Saratov, 2000. S. 8.
5 See: Public organizations, law and personality / Ed. Ts.A. Yampolskaya. - M., 1981. S. 54.
6 See: Vitruk N.V. Fundamentals of the theory of the legal status of the individual in a socialist society. - M., 1986; The constitutional status of public associations. - M., 1983. S. 32; S.A. Soldatov Public organizations in the Russian Federation. - M., 1994; Kudryavtseva G.A. Ownership of public associations under the federal legislation of Russia // Gos-vo i pravo. 1998. No. 4. S. 34-41.
7 See: Vitruk N.V. Decree. slave. S. 61; Voevodin L.D. The legal status of the individual in Russia. - M., 1997. S. 123; Yampolskaya Ts.A. Public organizations in the USSR. - M., 1972; Kozlova E. Joining the ranks... // Man and the law. 1995. No. 9-10. S. 85.
8 See: Korenev A.P. Administrative law of Russia. - M., 1996. Part 1. S. 139; Alekhin A.P., Kozlov Yu.M., Karmolitsky A.A. Administrative law of the Russian Federation. - M., 1997; Agapov A.B. Some problems of information and legal support for the activities of public associations in the Russian Federation // State and Law. 1994. No. 4. S. 98.
9 See: Yampolskaya Ts.A. Decree. slave.; S.A. Soldatov Decree. slave.; Kozlova E. Decree. Art. pp. 85-90.
10 See: Alekhin A.P., Kozlov Yu.M., Karmolitsky A.A. Decree. slave. S. 65; Agapov A.B. Federal administrative law of Russia. - M., 1995. S. 87.
11 See: Public organizations, law and personality / Ed. Ts.A. Yampolskaya. S. 191; Kokotov A.N. On the status of public organizations // Jurisprudence. 1993. No. 3. S. 19-25.
Share this article with colleagues:Introduction
I. Public associations as subjects of administrative law
1. The concept of public association
2.Public associations and executive power
3. Rights and obligations of public associations
II. Administrative and legal status of non-profit organizations
1. The concept of a non-profit organization
2. Administrative and legal relations in the field of activity of trade unions
3. Administrative and legal status of charitable organizations.
III. Administrative and legal status of religious public associations
1. Legislative regulation of the activities of religious public associations. Relations between justice authorities and religious public associations
2. Administrative and legal relations in the field of activity of religious associations
Conclusion
Bibliography
Introduction
The expansion of democratic processes in society, the increase in the social activity of citizens contribute to the realization of their rights and legitimate interests through the creation of various kinds of public associations. That is why the number of public associations in the Russian Federation is multiplying from year to year.
“For five years, only the Ministry of Justice of the Russian Federation registered 2846 public associations (including 85 political parties and 105 public movements). In general, throughout the country, the justice authorities have registered more than 35 thousand such formations, including almost 1.5 thousand political parties.”
The basis of the legal status of public associations is the constitutional norm on the right of citizens to association and guaranteed freedom of activity of public associations.
The existing system of public associations practically covers all aspects of society. Conventionally, they can be classified according to the field of activity (political, economic, social, cultural, sports, etc.) and territories (all-Russian, interregional, regional, local, international), etc. By organizational and legal forms, associations can be classified as: organizations, movements , funds, public institutions and bodies of public amateur performance, which can in turn be divided into centralized and non-centralized. According to the number of participants, they are divided into mass and elite, and according to their nature, they are fixed and non-fixed membership. It should be taken into account that in addition to the mentioned public associations, there are quite a few that did not apply for registration or, having received a refusal, operate essentially illegally.
Considering public associations as one of the subjects of administrative law, it should be emphasized that this is one of the fundamental constitutional and legal institutions. The rules on public associations are contained in parts 4, 5 of Art. 13; part 2 of article 19; part 1 of Art. thirty; Part 2 Art. 46 of the Constitution of the Russian Federation. These articles give a general description of public associations as subjects of Russian law.
A more detailed and concretized description of public associations as a subject, in particular, administrative law, is contained in the Federal Law of May 19, 1995 “On Public Associations” No. 21, Art. 1930, other federal laws, regulatory legal acts, as well as in the charters of unions, associations and other associations of citizens.
The Constitution of the Russian Federation, the Federal Law on Public Associations, and other laws of the Russian Federation formed the legislative base for public associations. It, in particular, consists of laws on certain types of public associations: “On trade unions, their rights and guarantees of activity” of January 12, 1996; "On non-profit organizations" dated January 12, 1996; "On freedom of conscience and religious associations" of September 26, 1997. and etc.
I. Public associations as subjects of administrative law.1. The concept of public association.
“A public association is a voluntary, self-governing, non-profit formation created on the initiative of citizens united on the basis of common interests to achieve the goals specified in the charter of a public association,” Art. 5 of the Federal Law of May 19, 1995, “On Public Associations.” This Law provides for various forms of exercise by citizens of the constitutional right to association. Citizens have the right to unite in political parties, trade unions, charitable and other organizations. The activities of such associations are regulated not only by the aforementioned Law, but also by special federal legislation.
Voluntary formation is the most important sign of a public association. At the same time, citizens have the right to create public associations of their choice without prior permission from executive authorities and local self-government bodies.
Public associations created by citizens are either registered in accordance with the established procedure and acquire the rights of a legal entity, or function without state registration and acquisition of the rights of a legal entity.
Members of a public association may be individuals and legal entities - public associations, whose interest in the joint solution of the problems of this association is formalized by individual statements or documents that make it possible to take into account the number of members of the public association in order to ensure their equal rights as its members.
The legislation distinguishes five organizational and legal forms of public associations created in the form of an organization, movement, fund, institution and body of public amateur performance, however, fixed membership is provided by the Law only for public organizations. At the same time, clear legal distinctions between movements, foundations, public institutions and bodies of public amateur performance were fixed.
Each of these associations has its own characteristics.
public organization is a membership-based public association created on the basis of joint activities to protect the common interests and achieve the established goals of the united citizens.
Members of a public organization in accordance with its charter may be individuals and legal entities - public associations, unless otherwise established by federal law and laws on certain types of public associations.
The highest governing body is the congress (conference) or the general meeting. The permanent governing body of a public organization is an elected collegial body, accountable to the congress (conference) or general meeting.
In case of state registration of a public organization, its permanent body exercises the rights of a legal entity on behalf of the public organization and performs its duties in accordance with the charter.
social movement is a mass public association consisting of members and having no membership, pursuing social, political and other socially useful goals supported by participants in the public movement. The highest governing body of a social movement is the congress (conference) or general meeting. The permanent governing body of a social movement is an elected collegial body, accountable to a congress (conference) or general meeting.
In case of state registration of a public movement, its permanent body exercises the rights of a legal entity on behalf of the public movement and performs its duties in accordance with the charter.
Public fund- one of the types of non-profit foundations, which is a non-membership public association, the purpose of which is to form property on the basis of voluntary contributions, other receipts not prohibited by law and use this property for socially useful purposes. The founders and managers of the property of a public fund are not entitled to use the said property in their own interests.
The governing body of a public fund is formed by its founders and (or) participants or by a decision of the founders of a public fund, adopted in the form of recommendations or personal appointments, or by election by participants at a congress (conference) or general meeting.
public institution- a non-membership public association that aims to provide a specific type of service that meets the interests of the participants and corresponds to the statutory goals of the specified association. The public institution and its property are managed by persons appointed by the founder (founders). In accordance with the constituent documents, a collegial body may be created in a public institution, elected by participants who are not the founders of this institution and consumers of its services.
Organ of public initiative is a non-membership public association, the purpose of which is the joint solution of various social problems that arise for citizens at the place of residence, work or study, aimed at meeting the needs of an unlimited circle of people whose interests are related to the achievement of statutory goals and the implementation of programs of the body of public amateur performance at the place of its creation.
Federal Law No. 112-FZ of July 19, 1998 “On Amendments and Additions to the Federal Law “On Public Associations”” introduces Article 12.1, according to which “ political public association is a public association, the charter of which, among the main goals, should include participation in the political life of society by influencing the formation of the political will of citizens, participation in elections to state authorities and local self-government bodies by nominating candidates and organizing their election campaign, participation in organizing the ideas of these bodies.
Public associations may voluntarily unite in associations (unions). Members of an association (union) retain their independence and the rights of a legal entity. The name of the association (union) must contain an indication of the main subject of activity of its members, including the words "association" and "union".
2. Public associations and executive power.
The specificity of a public association as a subject of administrative law is manifested in the relationship of the association with state bodies, primarily with executive authorities.
In the process of institutionalizing the status of an association and granting it the rights and obligations of a legal entity, registration relations arise. In this case, the subjects of administrative relations, on the one hand, are the federal Ministry of Justice or its territorial bodies in the subjects of the Federation, and on the other hand, the founders of the public association: individuals or legal entities applying for the status of a legal entity to the association. Registration relations are optional - the activities of the association in accordance with the Federal Law on Public Associations are not conditioned by the fact of state registration. Such relations do not arise if the founders are unwilling to endow the association with the legal capacity of a legal entity. It should be noted that public associations are liable for illegal actions, regardless of whether they are registered or not, in accordance with Art. 41 of the Law on Public Associations.
Of fundamental importance in the status of public associations as subjects of administrative and legal relations is their relationship with the state, its bodies and officials. The law on public associations brings its own peculiarities to the solution of this problem. The constitutional understanding of the relationship of associations and the voluntary membership in them. The law on public associations only declares a ban on the interference of state authorities and their officials in the activities of associations, but in fact allows for its diverse legal forms.
Insufficient specificity of the content of registration relations creates the basis for abuse by officials - the Law on Public Associations provides for eight legal grounds for refusing registration, at least two of which contain signs that suppress different interpretations of the relevant norm.
The law contains declarative provisions on the illegality of the creation and activities of associations whose goals and actions are aimed at forcibly changing the foundations of the constitutional order, undermining the security of the state, etc. Usually these concepts in the everyday sense are identified with the doctrine of "fascism", but its signs are not enshrined in law. In any case, the restriction of the activities of public associations or, even more so, the refusal to register on the basis of the above provisions, the founders have the right to regard as an abuse of an official.
Unconvincing from a legal point of view is the refusal to register an association if its name offends the morality, national and religious feelings of citizens. In essence, such registration is allowed if the signs that are regarded as unlawful are contained in the charter of the public association and are not reflected in its name.
Registration relations also arise in the case of changes and additions to the charters of public associations, which is associated with significant difficulties for them. It is hardly expedient to provide repeated information about the founders of the association and about the formation of the governing and control and audit bodies if their personal composition has remained unchanged.
Administrative and legal relations also arise in the process of exercising the control powers of the justice authorities over the compliance of the activities of public associations with their statutory goals, as well as financial authorities - in accordance with their competence. In this case, only the right of the bodies exercising control is provided to request administrative documents of associations, however, the law does not fix the obligation to present them, as well as the responsibility of associations in connection with the refusal of the application of control bodies. Thus, the content of the control powers of state bodies is very uncertain.
The exercise of control powers by the bodies of justice is also associated with objective difficulties. Carrying out general control over the activities of public associations, as provided for by the Law, is in fact incompatible with the material, technical and personnel potential of the justice authorities.
The law also provides for another method for the exercise by the bodies of justice of their control powers. Such bodies “have the right to send their representatives to participate in events held by public associations.” In this case, the Law did not specify what kind of events were meant. State bodies have the right to exercise control not in all areas of the activities of associations. Uncontrolled powers include creative events, festivals, scientific symposiums and similar actions of associations operating in the field of culture. Attempts by the judicial authorities to control are possible, and these activities will constitute a violation of one of the fundamental constitutional rights of citizens - the right to freedom of creative activity. The judicial authorities have the right and are obliged to control only the activities carried out by the governing and control and auditing bodies of associations.
The law provides for two cases when the judicial authorities apply sanctions to public associations that have committed unlawful actions:
1. Identification of violations of the legislation of the Russian Federation;
2. Taking actions contrary to their statutory goals.
Thus, the justice authorities have the right to carry out the functions characteristic of the judiciary. These include, first of all, the interpretation of laws and the application of sanctions that entail certain legal consequences, which can only occur when written warnings have been issued twice, and the association has not challenged them in court (by a court order, the activity of the association can be suspended in this case).
Suspension of the activities of a public association and its liquidation are two interrelated procedural actions that differ in the content of the emerging legal relationship. If the authorities in the sphere of suspending the activities of associations are vested in the bodies of justice and the prosecutor's office, then petitions for the liquidation of associations can be initiated only upon the application of the Prosecutor General of the Russian Federation and the prosecutors of the constituent entities of the Federation subordinate to him.
Suspension of the activities of a public association does not entail a ban on entrepreneurial or production and creative activities, while the fact of liquidation means the loss of all powers of a legal entity.
There are obvious differences in the content of control and supervisory functions. Supervision over the observance of laws by public associations is the exclusive prerogative of the prosecutor's office. The concept of "control" is much narrower in content, since the exercise of control functions by the justice authorities is designed to confirm the compliance of the activities of public associations with their statutory goals.
The control powers of the justice authorities are not related to the fact of registration. In accordance with the Law on Public Associations, the adoption of decisions on the creation of an association, the approval of its charter and the formation of its governing and control and audit bodies, means that the association has all the rights except for the rights of a legal entity, and assumes all the obligations provided for by the current legislation of public associations. Consequently, the control powers of the judicial authority can be exercised from the moment the association is created. On the same day, the association assumes the following obligations to the justice authorities:
· annually inform the justice authorities about the continuation of their activities, indicate all changes in their details and changes in the personal composition of the governing bodies;
submit, at the request of the body of justice, decisions of governing bodies and officials, as well as annual and quarterly reports on their activities in the same manner and to the extent that they are submitted to the tax authorities;
· assist in every possible way officials of the bodies of justice in the exercise of their control powers, allow them to attend events.
If a public association, including those not registered with the justice authorities, commits a violation of the law, it shall bear statutory responsibility. In case of violation of the law by public associations that are not registered with the justice authorities, the persons who are members of the governing bodies of these associations are liable for the violations committed. When associations commit acts punishable under criminal procedure, persons who are members of the governing bodies of these associations, if their guilt for organizing these acts, may be held liable by a court decision as leaders of criminal associations. Other members and participants in such associations are liable for these criminal acts, in or in which they participated.
3. Rights and obligations of public associations.
In order to achieve its statutory goals, the association has the right to:
· freely disseminate information about their activities;
· take part in the development of decisions of state authorities and local governments in the manner and to the extent prescribed by law;
· hold meetings, rallies, demonstrations, marches and picketing;
· Establish mass media and carry out publishing activities;
· to represent and defend their rights, the legitimate interests of their members and participants, as well as other citizens in state authorities, local governments and public associations;
· exercise in full the powers provided for by laws on public associations;
· take initiatives on various issues of public life, make proposals to public authorities;
· participate in election campaigns (in the case of state registration of the association and if there is a provision in the charter of this association for its training in elections).
Laws on public associations may provide for additional rights for specific types of public associations.
In its activities, a public association is obliged to:
· comply with the law, generally recognized principles and norms of international law relating to the scope of its activities, as well as the norms provided for by its charter and other constituent documents;
publish annually a report on the use of their property or ensure the availability of familiarization with the specified report, inform the body registering associations about the continuation of its activities, indicating the actual location of the permanent governing body, its name and data on the leaders of the association and information included in the unified state register of legal entities;
submit, at the request of the body registering the association, as well as annual and quarterly reports on its activities in the amount of information provided to the tax authorities;
· to allow representatives of the body registering the association to the events held by the public association, as well as assist representatives of the registering public association in familiarizing themselves with the activities of the association.
Public associations can carry out entrepreneurial activities only insofar as it serves to achieve the statutory goals for which they were created, and correspond to these goals.
The state ensures the observance of the rights and legitimate interests of public associations, provides support for their activities, legally regulates the provision of tax and other benefits to them.
II. Administrative and legal status of non-commercial organizations.1. The concept of a non-profit organization.
The legal status of a non-profit organization is largely identical to the status of a public association. In accordance with the Federal Law of January 12, 1996 No. “On non-profit organizations” non-profit organizations are organizations that do not set profit making as the main goal of their activity and do not distribute profits between participants. This is the most important feature any public association.
Another feature of the status of a non-profit organization lies in the implementation of social priority tasks. The main purpose of the functioning of any non-profit organization is to satisfy the spiritual and other non-material needs of citizens. The Law on Public Associations equates the concepts of a non-profit organization and a public association (Article 5) - this is indicated by identical methods of creation and goals of organizations and public associations.
At the same time, there are fundamental differences between the basic Law on Public Associations and the Law on Non-Profit Organizations in the legal regulation of the activities of non-profit associations. First of all, the Law on non-profit organizations practically does not allow the activities of an organization without its state registration, and the Law on Public Associations provides for the possibility of an optional regime of registration relations: the association independently solves the problem of participation in administrative and legal relations with the justice authorities, while an alternative option is also allowed - a public association has the right to function without state registration and not have the powers of a legal entity. In this case, the contradictions of laws are obvious. Consequently, the problem of the legal basis for registration has not been resolved: are non-profit organizations subject to registration as public associations, or are they registered on the basis common to all legal entities, in the manner prescribed by Article 51 of the Civil Code of the Russian Federation.
Non-profit organizations enter into administrative-legal relations in the process of creation, reorganization or liquidation. The subject of such relations are individuals or legal entities applying for the creation of a non-profit organization, or for changing its status, and the federal executive body, which is entrusted with the functions of registering the organization. With regard to religious public organizations, these functions are carried out by the federal Ministry of Justice or its territorial bodies in the subjects of the Federation.
Relations between non-profit organizations and public authorities are largely determined by the social priority functions inherent in organizations.
State authorities have the right to provide organizations with benefits for the payment of taxes, customs and other fees and charges, fully or partially exempt them from fees for the use of federal and municipal property, and provide other benefits and benefits.
Forms of control over the activities of non-profit organizations are defined by the Law only in the most general form. Among the executive bodies to which organizations are obliged to provide information about their activities, only state statistics bodies and tax authorities are specifically indicated, but it is obvious that their list is much wider. In particular, in some cases, control functions in this area are carried out by the bodies of justice, internal affairs bodies and security bodies. The forms and methods of implementation of control bodies, the list of information provided to them are determined by the Law on Non-Commercial Organizations. He settled mainly property and other civil law problems: the relationship between state bodies and non-profit organizations was not properly regulated.
2. Administrative and legal relations in the sphere of activity of trade unions.
Among public associations, professional unions have a special status. The definitions of "trade union" and "non-profit organization" are largely similar. These are associations whose purpose is to ensure and protect the social priority interests of the individuals who created them. Citizens united in a trade union are bound by a common industrial and professional interests. The status of trade unions resembles the legal status of many types of associations, since the statutes of almost all of them (creative unions, compatriots, charitable and youth organizations, religious associations) provide for one or another organization of social and legal protection of labor rights and interests of individuals. Trade unions can only be created in the form of an organization.
Among the administrative-legal relations in the activities of trade unions, their relations with executive, legislative and judicial authorities are of particular importance. Article 5 of the Federal Law "On Trade Unions, Their Rights and Guarantees of Activity" dated January 12, 1996 establishes the principle of independence of trade unions in their activities from executive authorities and local governments. The law socially stipulates that trade unions are not accountable and not under the control of these bodies. It is forbidden for these bodies and their officials to interfere in the activities of trade unions in cases where this "may entail the restriction of the rights of trade unions or hinder the legitimate exercise of their statutory activities."
Trade unions and their members depend on the legislative authorities: its instructions, embodied in the form of a federal law or the law of a subject of the Federation, are binding on all its members, and in some cases (for example, the Code of Labor Laws) directly affect the status of trade unions, the competence of its bodies, the rights and duties of their members. In the process of legislative regulation, some restrictions on the rights of trade unions are allowed, for example, when citizens united in a trade union exercise their right to strike and other types of collective protest against the actions of employers (see Article 31 and Part 4 of Article 37 of the Constitution) .
Legislation on public associations provides for special forms of registration relations that arise between persons applying for the creation of a trade union and judicial authorities. The law on trade unions provides for notification state registration: trade unions, associations, primary trade union organizations within a month from the date of formation are sent to the Ministry of Justice of Russia or its territorial bodies Required documents, after which the latter is obliged to register them. The basic Law on Public Associations provided for a procedure for refusing to register an association for one or other legal grounds. In accordance with part 1 of article 8 of the Law on trade unions, refusal to register them is not allowed, however, part 2 of this article still provides for the possibility of judicial authorities refusing to register or evading it and appeal against these actions in court. “Thus, actions recognized by the Law as illegal are qualified as legitimate by the same legal prescription! The disadvantage of the Law on Trade Unions is that it provides for the procedure and legal grounds for refusing state registration of trade unions.”
The exercise by trade unions of their rights enshrined in the Law is the most common form of relations between trade unions and the executive branch.
The subjects of administrative and legal relations in this case are the employer represented by the head of the executive authority and relevant officials and a representative of the trade union body. The public relations arising in this sphere have all the signs of administrative and legal ones. First of all, they are characterized by the inequality of the parties. Subordination is manifested in the fact that the Law provides for the rights of trade unions in their relationship with the employer, and the obligations of the latter to satisfy these rights. State authorities of any level are obliged to coordinate with the trade unions draft legislative acts affecting the social and labor rights of workers. The same duty extends to the executive authorities when they develop drafts of the relevant regulatory legal acts.
The legislation provides for certain types of normative acts of executive authorities that require agreement with the trade union in the process of not only their development, but also their implementation. Among them are acts providing for the liquidation of an enterprise, institution, or its divisions.
The process of liquidation can take place both on the initiative of the trade union itself, and on the initiative of the judicial authorities, including the prosecutor's office of Russia.
A special status in the sphere of executive power is not characteristic of the relationship of trade unions with the judicial authorities, including the prosecutor's office. The latter have the right to exercise control and supervision over their activities, and their powers are not limited to any particular area, as provided for by the Law on Trade Unions in the case of exercising control functions by executive authorities.
3. Administrative and legal status of charitable organizations.
The Law on Public Associations stipulates that the activities of certain types of public associations may be regulated in special laws. The first among them was the Federal Law of August 11, 1995 "Charitable activities and charitable organizations." According to this Law, a charitable organization must comply with all the main features of a public association, defined by the Law on Public Associations. Created for the implementation of social priority goals, a non-profit charitable organization must have the most important property: its activities must be disinterested in nature - gratuitous or on preferential terms. Preferential conditions mean the provision of certain benefits and benefits (primarily material ones) to benefactors, stimulating this kind of social priority activity. However, state guarantees - the provision of tax and property benefits - apply only to charitable organizations, but not to legal entities and individuals who are sponsors of charitable organizations (see Article 18 of the Law on Charitable Organizations).
Charitable organizations, like all other public associations, are not entitled to redistribute funds received as a result of entrepreneurial activity among their members or participants. In accordance with an article of the Law on Charitable Activities, a charitable organization is not entitled to use more than 20% of the financial resources spent in a financial year to pay administrative and managerial personnel. Thus, such a form of illegal redistribution of funds is impossible among members or participants of charitable organizations.
The grounds for the emergence and termination of administrative and legal relations, the subjects of which are charitable organizations, are largely the same as those of non-profit organizations and trade unions. The Law on Charitable Activity, as well as the Law on Non-Commercial Organizations, does not specify the body for the state registration of charitable organizations. This procedure must be carried out "in the manner prescribed by federal laws."
Administrative and legal relations arise in the process of granting various benefits and benefits to charitable organizations by executive authorities, for example, the transfer of ownership of state property.
The Charitable Organization Law regulates the forms of control in more detail: the authority that registers a charitable organization has the right to control its financial and economic activities “on the use of property and expenditure of funds”.
This means that all information confirming the legal obligations of the organization with any legal entities and individuals can be controlled. In addition to active forms of control carried out by officials of the registration authority directly on the spot, passive forms are also provided: a charitable organization, submitting an annual report on its activities to the registration or tax authority, initiates the emergence of administrative and legal relations.
In addition to the control of the registration authority over the financial and economic activities of charitable organizations, an important place is given to the control of tax authorities, which control the sources of income of organizations, the amount of funds they receive and the payment of taxes. In this case, the control activities of the registration and tax authorities are largely identical: its object is the same information about the social and legal relations of charitable organizations. Obviously, all types of financial control should be carried out by the tax authorities.
Thus, there are obvious differences in the legal regulation of the activities of public associations in the basic Law on public associations and in later laws on certain types of public associations. The status of certain types of legal entities, such as industrial cooperatives, is very reminiscent of the legal status of public associations. However, this form of joint activity of citizens has the main goal of making a profit, which is completely unacceptable for the status of non-profit associations.
Of course, they can adopt special laws on certain types of associations, but their compliance with the provisions of the basic Law on Public Associations is mandatory. In fact, however, this principle is not always respected.
III. Administrative and legal status of religious public associations.1. Legislative regulation of the activities of religious public associations. The relationship between the organs of justice and religious public associations.
The result of the long development of world religious and philosophical thought, as you know, was the formation of the church as a political institution of civil society. Despite the fact that the secular nature of the Russian state excludes the possibility of the influence of the church on the political life of society, the issue of freedom of conscience, its legal regulation is constantly in our country at the center of attention of power structures: the state, its bodies of political parties. According to Art. 14 of the Constitution of the Russian Federation, the Russian Federation is declared a secular state: “No religion can be established as a state or obligatory one. Religious associations are separated from the state.” The legal status of the church until recently was regulated by the Russian law on freedom of religion of October 25, 1990. The adoption of the Law "On Freedom of Conscience and Religious Associations" marked a new stage in the development of church-state relations in Russia. The time that has passed since 1990 has seen profound changes in the political and socio-economic spheres of society, which largely predetermined the content of the new law.
If the main tasks of the previous law were to free religion from state guardianship and provide citizens with the opportunity to freely practice their faith, the current law goes further in regulating religious life and establishes a number of fundamental provisions in the field of interaction between the state and confessions. The state's attention to organized forms of religious activity can be traced directly from the title of the law.
“The analysis of the discussed law allows us to say that Russia has chosen its own special model of relations between political power and confessions, which differ from the regimes of the state church that are common in the world. The conceptual basis of relations between the state and religious associations in Russia was the idea of cultural and historical selectivity, which consists in granting advantages to confessions on the basis of their special cultural and historical significance. respectful attitude Christianity, Islam, Buddhism, Judaism and other religions that are "an integral part of the historical heritage of the peoples of Russia."
The leitmotif of the Federal Law of September 26, 1997 is to consolidate the preventive powers of law enforcement agencies: the state authorities are interested in providing possible illegal activities of the so-called "totalitarian sects", excluding the voluntary basis of membership and preventing citizens from leaving a religious association. The mechanism of the state permissive policy, embodied in the powers of the federal ministries and departments for registration, licensing and control, is designed to prevent the infliction of property and moral harm to adherents of various faiths. This is the main difference between the Federal Law "On Freedom of Conscience and on Religious Associations" from analogues of the national systems of legislation of many foreign states, which exclude any form of executive power influence on the process of creating a confessional association, when law enforcement only state the facts of criminal actions.
In the process of state registration of religious associations, the exercise by them of the powers of a legal entity, the control of the bodies of justice over the activities of religious associations and their liquidation, administrative-legal relations arise.
Religious associations can be created in the form of religious groups and religious organizations. Only religious organizations registered with the judicial authorities have the legal capacity of legal entities. The Federal Law of September 26, 1997, as well as the basic Federal Law "On Public Associations" of May 19, 1995, determines the status of the optional and mandatory regimes of registration relations, and their differences are due to the intentions of the persons who created the religious group. If the purpose of creating such a group is the subsequent registration and obtaining the status of a religious organization, the initiators of its formation are obliged to notify the municipal authorities about the activities of the group. The optional regime of registration relations, therefore, applies to religious groups whose founders do not intend to apply to the justice authorities for granting them the status of a legal entity, and mandatory state registration is provided only for associations created in the form of a religious organization.
Only centralized religious organizations that have local religious organizations on the territory of two or more subjects of the Federation are subject to registration with the Ministry of Justice of the Russian Federation, and all other organizations are registered by territorial justice bodies. For the implementation of imperative registration relations, the temporary qualification for the activity of a religious association on the territory of the Russian Federation is of decisive importance.
The status of an all-Russian religious association applies only to centralized religious organizations that have been operating on the territory of Russia on legal grounds for at least 50 years by the time the organization applies to the justice authority with an application for state registration. The founders of a local religious organization are required to confirm with the judicial authority the fact of their activities in the relevant territory for at least 15 years. This temporary qualification does not apply to local religious organizations that operated as part of a centralized religious organization prior to state registration. Characteristically, the law provides for the confirmation by the founders of an all-Russian religious association of their activities on legal grounds during the entire period of the temporary qualification.
For administrative and legal relations arising in the field of activity of religious associations, a combination various kinds permissive policy. The creation of a centralized religious organization is characterized by a special periodicity of registration relations: at the first stage of state registration, local organizations are subject, only after its completion, the founders have the right to apply for registration of a centralized organization. To obtain this status, it is necessary to confirm the presence of three local organizations, so the state registration procedure is at least divided into four stages. In the case of a subsequent expansion of the activities of a centralized religious organization, for example, when it establishes new local organizations, registration relations between the justice authority and the founders arise again. For the creation of institutions of vocational religious education by confessional associations, a combination of two different types of permissive policies is necessary. Such institutions are subject to state registration with the justice authority as a religious association, and in order to obtain the right to exercise educational activities the issuance of a license by the Ministry of General and vocational education Russian Federation.
The status of an all-Russian religious organization, provided for by the Federal Law "Freedom of Conscience and Religious Associations" of September 26, 1997, differs from the legal status of an all-Russian association created in accordance with the Federal Law "On Public Associations" of May 19, 1995. Despite the fact that a religious organization represents is a kind of public association, the procedure for state registration of religious associations is significantly simplified. To confirm the status of an all-Russian religious organization, the territorial aspect is taken into account by the body of the state registration procedure to a minimum: a subject of the Federation and, nevertheless, be called all-Russian.
The subjects of administrative and legal relations arising from the state registration of an all-Russian public association and a Russian religious organization also differ significantly. In the second case, the registration certificate can also be issued to the territorial bodies of justice, and all-Russian public associations are subject to state registration only in the Ministry of Justice of Russia.
The liquidation of a confessional association is also regulated by the norms of administrative law. As a rule, the Ministry of Justice of the Russian Federation or its territorial body in a constituent entity of the Federation initiates the liquidation or prohibition of the activities of an association, but the decision on the merits is made by the court. The federal law does not regulate the differences in the procedure for the liquidation and prohibition of the activities of a religious association, however, the complete termination of the legal capacity of a confessional organization as a legal entity is allowed only if it is liquidated by a court. The ban on the activities of the association is a temporary preventive measure, the purpose of which is to eliminate the facts of violation of the current legislation, identified by the justice or other law enforcement agency in the process of exercising control functions.
Thus, the following social relations in the sphere of confessional activity are regulated by the norms of administrative law:
1. When determining the status of a religious organization as a legal entity. The necessary conditions for the civil and administrative legal capacity of a religious association are state registration, and in some cases, empowering the organization as a licensee;
2. In the process of liquidation of a confessional association, prohibition of its activities or control over it. As a special kind of control functions, one can consider the obligation of a registered (centralized or local) religious association to annually submit to the justice authority information on the continuation of its activities;
3. Assigning the right of ownership to religious buildings and structures to religious organizations;
4. In the exercise by a clergyman of secular rights and duties, primarily military duties. The head of state is vested with the right to grant clergy a deferment from conscription for military service and exempt from military training in peacetime;
5. The implementation of religious rites and ceremonies. We are talking about the procedure for the implementation of ritual activities in penitentiary institutions, the Armed Forces of the Russian Federation and departmental military formations.
Executive authorities control the compliance with federal legislation of the internal regulations of religious organizations, primarily charters. The executive branch also interacts with confessional associations in determining the status of religious education institutions. Religious education or its foundations can be obtained not only in institutions of confessional education, but also in state or municipal educational institutions.
2. Administrative and legal relations in the sphere of activity of religious associations.
Other administrative-legal relations in the field of activity of religious associations arise in the following cases:
in the process of regulation of property relations;
· regulation of peculiarities of religion;
· in the process of teaching, educational and other creative activities in the public education system;
· exercising state control over the activities of religious public associations.
The administrative and legal specifics in the sphere of property relations is manifested primarily in the participation of executive authorities in securing the rights of ownership, rent and other rights of confessional associations to prayer buildings, where adherents of a given religion hold worship services or religious meetings. The practice of providing religious associations with individual powers of the owner in relation to objects of religious purpose remains very common. Most often, these objects are transferred to associations for use, or for joint use with bodies of the system of the Ministry of Culture.
The transfer of state property to the property of religious associations is most often carried out on the basis of a decision of an executive authority, and the regulation of the procedure for the alienation of religious property belonging to federal property is within the exclusive competence of the federal government.
Solving issues on the transfer of property to religious associations
for use or for joint use with institutions and
organizations of culture, carried out by the Ministry of Culture. The Ministry has the right to settle property problems only in relation to objects that are monuments of history and culture, religious buildings and structures with adjacent territories and other movable and immovable property for religious purposes located within these objects. The transfer of property belonging to federal property, but not a monument of history and culture, to religious associations falls within the competence of the State Property Committee of Russia.
Executive authorities in some cases take part in the regulation of certain ritual features of religion, for example, the secrecy of confession, protected by law. The investigative actions provided for by the Code of Criminal Procedure do not apply to clergy who have become aware of any circumstances from the confession of a citizen. Thus, the clergyman has immunity in the areas of criminal, civil, administrative and legal jurisdiction.
The administration of medical institutions, homes for the elderly and disabled, orphanages and boarding schools, places of pre-trial detention and serving sentences (including punishment cells and cell-type premises) is obliged to provide citizens with conditions for exercising their right to freedom of religion, for example, provide separate premises for ritual sacraments, provide the necessary religious literature, cult objects.
The above obligations apply to the systems of many federal ministries and departments that have their own medical and social rehabilitation institutions, as well as to the entire penitentiary system under the jurisdiction of the Ministry of Internal Affairs of Russia. However, most of these duties do not apply to the military units of the so-called "power" ministries and departments.
Executive authorities and religious associations interact in the process of teaching, scientific and other creative activities carried out in the public education system. In the public education system, teaching activities of clergy in religious studies without performing religious rites are allowed, and the relevant disciplines may be included in the curricula of educational institutions. Naturally, the realization of these rights is impossible without the joint participation of secular and spiritual authorities in the development of religious studies. curricula preparation and publication of relevant textbooks. Restrictions on the rights of citizens to join the spiritual foundations of a religion of one or another confession, provided for by the Law on Freedom of Religion, apply only to state system education. Despite the fact that the Law extends “freedom of thought and religion” also to minors, they are practically deprived of the opportunity to participate in sacred rites in state educational institutions and, thus, are not able to exercise their constitutional right to practice religion.
State authorities are authorized to exercise control over the observance of federal legislation on freedom of religion. The implementation of functions by executive authorities entails the emergence of administrative and legal relations with the relevant confessional association. The control of federal ministries and departments is the most important element of the competence of the federal executive body. The control functions of officials are of a state nature - they are carried out on behalf of and within the competence of the relevant ministries and departments.
It should be noted that the secular authorities do not always adhere to the principle of a "neutral" attitude towards religious associations. The state has recognized and continues to recognize the importance of the Russian Orthodox Church in the establishment and development of the Russian statehood. The ROC is the only public institution that has preserved the foundations of religion and canonical organization over the millennia of the history of the Fatherland. A “neutral” attitude of the state towards the ROC is impossible, since this would have to abandon the centuries-old traditions embodied in state legal institutions. This is confirmed by the participation of the highest hierarchs of the Russian Orthodox Church in official state actions, primarily in the ceremony of inauguration of the first popularly elected President of Russia on August 7, 1996.
“On May 24, 2002, during church and public celebrations in honor of Saints Cyril and Methodius Equal-to-the-Apostles, Metropolitan Kirill of Smolensk and Kaliningrad blessed the new governor of the Smolensk region, V. N. Maslov ... More than once before, the authorities at the federal and regional levels officially recognized the privileged status of the ROC. But this time, the form of such recognition attracts attention: when taking office, the highest person of the subject of the Russian Federation received a blessing from the church. ”Part 4 of Art. 4 of the Federal Law "On Freedom of Conscience and Religious Organizations" expressly prohibits accompanying the activities of public authorities with public religious rites and ceremonies. The rite of church blessing, specially timed to coincide with the assumption of office, cannot be considered a personal matter of a private person. VN Maslova: he accepted the blessing as a person taking office as a governor.
Quite often in recent years, leaders and politicians of the highest echelon of our secular state, according to the Constitution of the Russian Federation, have publicly demonstrated their support for traditional confessions, but support for the Russian Orthodox Church has been especially pronounced.
Conclusion
Considering public associations as one of the subjects of administrative law, it should be emphasized that this is one of the fundamental constitutional and legal institutions. The norms on public associations are contained in parts 4, 5 of Art. 13; Part 2 Art. 19; Part 1 Art. thirty; Part 2 Art. 46 of the Constitution of the Russian Federation. These articles give a general description of public associations as a subject of Russian law. A more detailed description of public associations as a subject of administrative law is contained in the Federal Law of May 19, 1995 "On Public Associations", which is the basic law regulating the organization, status and activities of public associations; as well as in other federal laws, regulations, as well as charters of unions, associations and other associations of citizens.
The current legislation of the Russian Federation regulates the activities of the public association system. It fixes the status of unions of public associations and entities included in their systems. “The new legislation of the Russian Federation on public associations requires a clearer delimitation of the functions of associations and state bodies.” The basic principles of their relationship are regulated by the current Law on Public Associations.
It should be noted that the differences in the types of public associations are of a formal nature, which confirms the absence of any indications about the status of structural units. Although the Law provides for four types of such units, it does not define the differences in the legal status of an organization, branch, branch and representative office. The solution of this problem is of great practical importance, since the fact of the state registration of the association in the justice authorities depends on the presence of subdivisions on the territory of Russia.
There are obvious contradictions between the basic Law on public associations and laws on individual public associations, as well as contradictions between the regulatory legal acts of the constituent entities of the federation, issued on issues of joint jurisdiction with the central government, and federal laws, which does not correspond to Art. 76 of the Constitution of the Russian Federation.
Bibliography
I. Normative sources.
1. The Constitution of the Russian Federation. M., 1993.
2. Federal Law of May 19, 1995 No. 82 - FZ "On Public Associations". SZ RF, 1995, No. 21, Art. 1930; 1997, No. 20 Art. 22 31; 1998, no. 30, art. 3608.
3. Federal Law of June 28, 1995 No. 98 - FZ "On State Support of Youth and Children's Associations". SZ RF, 1995, No. 25, art. 2343.
4. Federal Law of August 11, 1995 No. 135 - FZ "On charitable activities and charitable organizations". SZ RF, 1995, No. 33, art. 3340.
5. Federal Law of January 12, 1996 No. 10 - FZ "On trade unions, their rights and guarantees of activity." SZ RF, 1996, No. 3, Art. 148.
6. Federal Law of January 12, 1996 No. 7 - FZ "On Non-Commercial Organizations". SZ RF, 1996, No. 3, art. 145; 1998, no. 48, art. 5849.
7. Federal Law of September 26, 1997 No. 125-FZ “On Freedom of Conscience and Religious Associations”. SZ RF, 1997, No. 39, art. 4465.
8. Federal Law of July 19, 1998 No. 125-FZ “On Amendments and Additions to the Federal Law “On Public Associations””. SZ RF, 1998, No. 30, art. 3608.
II. Teaching aids.
1. Agapov A. B. Federal administrative law of Russia: a course of lectures. M .: "Jurist", 1997.
2. Administrative law of Russia / Textbook in 3 parts. Ed. Koreneva A. P. Part I. M .: MUI of the Ministry of Internal Affairs of Russia. Publishing house "Shield-M".
3. Administrative Law: Textbook / Ed. Yu. M. Kozlova, L. L. Popova. M .: "Jurist", 1999.
4. Gabrichidze B.N., Chernyavsky A.G. Administrative law. M.: LLC "TK Velby", 2002.
III. Journal publications.
1. Agapov A ... B. Some problems of information and legal support for the activities of public associations in the Russian Federation // State and Pravo, 1994, No. 2.
2. Agapov A. B. Church and Executive Power // State and Law, 1998, No. 4.
3. Dozortsev P. Constitutional and legal foundations of freedom of conscience in Russia // Russian justice, 1999, No. 2.
4. Kanevsky K. Religious Renaissance in Russia: Problems of state-confessional relations // Russian Justice, 2002, No. 11.
5. Kudryavtseva G. A. Ownership of public associations under the federal legislation of Russia // State and Law, 1998, No. 4.
6. Morozova L. A. The state and the church: features of the relationship // State Law, 1995, No. 3.
7. Savelyev A. Issues of freedom of conscience in regional regulations// Russian justice, 1999, No. 10.
8. Salygin E. What should be the state-church relations in Russia? // Russian justice, 1998, No. 2.
9. Cheremnykh G. Public associations: regulation of activity // Russian justice, 1996, No. 4.
