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2ACTUAL PROBLEMS OF CONFLICT OF INTEREST IN THE SYSTEM OF COMMUNITY SERVICE
Abstract. The work is a comprehensive study of the legal regulation of conflicts of interest in the system of municipal service in the Russian legislation. At the current stage of the conflict of interest and with a theoretical and practical point of view is problematic. Conflict of interest has a lot of blind spots, its legal definition is ambiguous. In this article the expedience of the expansion approach in the interpretation of personal interest with the inclusion of personal gain would have been more correct. The article identifies trends and prospects of development of the legislation on conflict of interests in the system of community service.
Keywords: conflicts of interest, corruption, community service, municipal employees, employment status, the system of State and municipal service, public authorities, local governments, institutions of civil society.
GALINA MITSYK
PhD in Jurisprudence, Associate Professor, Department of Theory of State and Law and Public Law Disciplines, Tver Branch of Moscow Humanitarian-Economic Institute, Tver, grand-ust@mail. ru
Identify corruption bribery in the public and municipal service, considering in most cases as a form of malpractice in the group or their own interests. Corrupt municipal officials carry out their duties in an efficient, prejudiced and biased. As pointed out by L. A. Soldatova, "the growth of corruption in government and management is primarily due to the absence of clear legislative regulation of many issues of public service, effective control over the sources of income of state and municipal employees" [1].
Required are the formation and implementation in practice of state and municipal government a common policy in the field of preventing and combating corruption, mobilization of public authorities, local governments, civil society organizations and citizens to minimize its effects, improvement of legislation on state and municipal service in to establish a mandatory prevention of non-use of official position, employees in private or group interests.
As the A. A. Grishkovets, "measures aimed at creating legal and administrative means to prevent and combat corruption should be linked with measures to improve the legislation on public service '[2], and his opinion on the matter must be accepted, because the mechanism of prevention of corruption will make it possible to implement a phased elimination of the practice of public authorities and local government conditions and situations of its generators and greatly reduce the effectiveness of the state and municipal authorities.
One of the ways to prevent corruption in the system of state and municipal services designed to implement the principle of openness and transparency of public authorities and local self-government institution acts of conflict of interest. In Russia, the concept of conflict of interest is just beginning to take shape, because until recently no such thing public and municipal service did not know. Previously, municipal employees were forbidden to engage in any other paid activities, except for scientific, pedagogical or creative. On June 1, 2007, the date of entry into force of the new law "On Municipal Service in the Russian Federation" municipal employee, except an employee to replace the position of head of the local administration under the contract shall be entitled to prior written notification to the employer (the employer) to perform any other paid work, if it does not entail a conflict of interest (Article 11 of Part 2 of the Act).
The term "conflict" (from the Latin. Conflictus - collision) is defined as a clash of opposing goals, interests, attitudes, opinions or views of opponents or the subjects of interaction. At the heart of any conflict is the situation, including any conflicting positions of the parties on any matter, or conflicting goals or means to achieve them in the circumstances, or the divergence of interests, desires, opponents, etc. [3. 24].
The concept of "conflict of interest" in the Russian legislation appeared originally in the legislation on business activities, such as the Federal Law of 22 April 1996. № 39-FZ "On the Securities Market" [4] (Art. 3) and a number of other acts.
With regard to civil servants for the first time the concept of "conflict of interest" was enshrined in the Federal Law "On the Public Service in the Russian Federation". [5] Currently, the definition
of the concept, as well as the order of prevention and settlement of conflicts of interest is contained in the Federal Law "On the State Civil Service of the Russian Federation" [6] (Article 19) and "On Combating Corruption" [7] (Article 10).
Accordingly, the authors of the Federal Law "On Municipal Service in the Russian Federation" of 02.03.2007 № 25-FZ spread the said institution and municipal employees. This law under the conflict of interest is a situation in which the personal interest of the municipal employee affects or may affect the objective performance of their official duties, and in which there is or may be a contradiction between the personal interest of a municipal employee and legitimate interests of citizens, organizations, society, the Russian Federation, subject of the Russian Federation, of the municipality, which could lead to harm to these legitimate interests of citizens, organizations, and society, the Russian Federation, subjects of the Russian Federation, of the municipality. Personal interest - it is possible to obtain a municipal employee in the performance of official duty revenue (unjust enrichment) in cash or in-kind income in the form of material benefits directly to a municipal employee, members of his family or other persons (parents, spouses, children, brothers, sisters, as well as brothers, sisters, parents, spouses and children), as well as for individuals or organizations with which the municipal employee related financial or other obligations.
According to the developers of the law "On Combating Corruption", properly recognized official behavior, providing performance and compliance with established responsibilities and limitations to avoid corrupt and dangerous situations. In general, a conflict of interest on municipal service characterized by the presence (or the possibility of a) personal interest official, which affects or could affect the impartial performance of their duties.
At the same time, taking into account the fact that self-interest has been identified in the above-mentioned law "On Municipal Service" by obtaining only the values of other property or property-related services, other property rights, the definition of conflict of interest has been narrowed compared with the civil law, where personal interest in the fall and the economic and moral interests.
Therefore, expansive approach to the interpretation of self-interest with the inclusion of personal gain would be more correct. That international law conflict of interest is associated not only with material benefits. For example, in hours. 5 Art. 8 "Codes of conduct for public officials," the UN Convention against Corruption, ratified by Russia February 17, 2006, along with material benefits and conflicts of interest associated with the ability to reap the benefits associated with outside activities, employment, investments, assets or other benefits. Here in Sec. "B" Art. 2 "Terms" means any property under the assets, both tangible and material [8]. The International Code of Conduct for Public Officials, adopted by the UN on December 12, 1996. the formulation of a conflict of interests in Article 4, Section 2 financial and personal benefits as specially separated [9].
Conflict of interest is inevitable due to the specifics of the municipal administration and is primarily due to an improper implementation of the constitutional principles of the defense and protection of the rights and freedoms of man and citizen, a violation of the principles of municipal service, deviant actions and behavior of the municipal employee, the consequences of which are the biased performance of such servants officers ( official) duties, the contradiction between personal interests and the legitimate interests of citizens, organizations, society, state, causing harm to these legitimate interests.
Undoubtedly, the appearance of a conflict of interest to the institute municipal service has made some positive contribution to the fight against corruption. Actual operating mechanism for the settlement of this conflict will determine the weak links in the system of municipal government, will provide an opportunity to identify the potential for conflict, the degree of probability of the transition of quantitative and qualitative set of existing contradictions directly in the conflict, will help to establish the existence of contradictions between the private interests of the municipal employee and public interest, to formulate preventive measures for the prevention of such a conflict.
In order to effectively conflict of interest must be at an early stage to identify its causes and contribute to this condition, to determine the dynamics of its development, as much as possible to reduce the level of conflict confrontation, to take control of its course, to determine the necessary forms and methods of settlement methods and criteria for evaluating the effectiveness of his permission.
At the present stage of settlement of the conflict of interests and a theoretical and practical point of view is problematic. Conflict of interest has a lot of white spots, its legal definition is ambiguous, there is still not determined contribute to create the causes and conditions, there is no list of typical
conflict situations, the statutory mechanism for the prevention and resolution of conflict is defined in very general terms, that does not allow to use it directly, without additional settlement regulations, not developed a mechanism of restriction or denial of personal interests that could lead to a conflict of interest, by eliminating income, benefits, gifts, gift, transfer of shares, securities, shares in the authorized capital of the entities in trust established procedure, there are no criteria for evaluating the effectiveness of conflict resolution in order to avoid its repetition, not established a system of training of municipal employees behavior in situations of conflict of interest, subject composition parties to the conflict is limited only by municipal employees, while persons holding municipal office and having the highest exposure to the involvement in a conflict situation, the scope of regulation of the conflict falls [10].
In the area of combating conflicts of interest law "On Combating Corruption" gives municipal employees the following responsibilities:
- To take measures to avoid any potential conflict of interest, which implies the need for a municipal employee to refrain from contact with various organizations, the scope of which overlap with his official duties, and as much as possible to escape from personal preferences when making management decisions, etc.
- Notify the immediate supervisor of the occurrence or threat of a conflict of interest as soon as this becomes known. But the evaluative nature of the conflict, in practice, can cause difficulties with the implementation of this provision, as itself a municipal employee may not see the presence of pre-conflict situation.
The second entity to whom the law imposes an obligation to take measures to prevent or resolve conflicts of interest, is a representative of the employer. The main way to obtain a representative of the employer information about a conflict of interests it serves notice to the employees themselves, who has a conflict of interest, or the supervisor of the employee. In addition, are called and other sources of information:
- The income statement, submitted by municipal employees, and other information submitted by them;
- Statements, including anonymous, individuals and organizations, including those who consider themselves victims of misconduct municipal employee;
- Materials of publications in the media;
- The results of official inspections, etc. [11].
In part 4 and 5 of Article 11 of the Law "On Combating Corruption" contains a reference to the basic ways of prevention and settlement of conflicts of interest on state or municipal service:
- Changes in official position, until the removal of a municipal employee to perform the job (service) duties;
- The refusal of benefits, which was the cause of a conflict of interest;
- Self-disqualification or municipal employee;
- The transfer of the securities, the shares (interests, the interest in the authorized (share) capital of organizations) in trust if a municipal employee owns securities, shares (stakes, shares in the authorized (share) capital of organizations [3, with. 26].
Consider some of the most controversial methods in more detail.
The first way is to change the official or official position of conflict of interest is a party to a municipal employee, up to their removal from the performance of official (service) duties. The difficulty in applying this method lies in the fact that the concept of "change of office or official position of the municipal employee" in the current legislation does not. With this in mind, believe that under the change of the official (official) position the employee must understand the transfer to another position of the municipal service or dismissal of such employees with municipal services. However, such a transfer can be made only with the written consent of the municipal employee, and not by the will of the exclusive representative of the employer, and the law on municipal service, as well as the Labor Code of the Russian Federation [12] do not provide such a ground for termination of the contract of service as part of conflict of interest.
It should be noted that the transfer or dismissal of an employee are permanent. Meanwhile initially proposed Article 19 of the Federal Law "On the State Civil Service of the Russian Federation", and then as reflected in st.14.1 the Federal Law "On Municipal Service in the Russian Federation", Article 11 of the Federal Law "On Combating Corruption" opportunity to losing state or municipal employee from duty (the removal of displaced post) is a distinct temporary, as shall cover only the period of a decision on the presence or absence of a conflict of interest.
The next way to prevention and settlement of conflicts of interest is voluntary refusal of municipal employee benefits, which was the cause of such a conflict. However, the concept benefits to the Federal Law "On the State Civil Service of the Russian Federation", "On Municipal Service in the Russian Federation", "On Combating Corruption" has not been not disclosed. We believe that a benefit can be understood to obtain a state or municipal employee benefits or preferences associated with the use of his official status, as well as any other benefits arising from their non-service activities (eg, management of non-profit organization, property, securities) [13 ]. Also a lack of clarity in the implementation of procedures, refusal of municipal employee has received or just planning for gain, the status of such a failure, the consequences of the breach, the possibility of settlement of the failure mechanism of the benefit, which was the cause of the conflict of interest regulations.
Some puzzling st.14.1 claim 3 of the Federal Law "On Municipal Service in the Russian Federation", where a representative of the employer (the employer) is obliged to take measures to prevent or resolve conflicts of interest, until the removal of the municipal employee of substitutable positions of the municipal service for the period of resolving the conflict interests to preserve his cash allowance for the duration of the removal of displaced post. I think the legislator had in mind the whole period of conflict of interest, but only the situation when, in fact, has only addressed the issue of whether or not a conflict at all.
In addition, the settlement requires the process of removing (rejection) municipal employee. The concept of removal (rejection) earlier in the legislation on municipal service has not been used and was typical of the procedural law for judges, experts, specialists, prosecutors, etc. By analogy, it can be assumed that the withdrawal (rejection) municipal employee may apply to prevent its consideration of a particular case, the adoption of certain management decisions, etc. In any case, the use of this method is impossible as long as the cases and procedures of removal (rejection) of municipal employees will not be regulated by local laws in detail [10].
In contrast to the law "On the State Civil Service of the Russian Federation", the Federal Law of 02.03.2007 № 25-FZ no specific ways to deal with conflict of interest in the device municipal employee to work part-time, which is hardly justified. As a result, not a legislative decision notice the implications of municipal employees representative of the employer of their intention to work part-time in the event that the latter will provide a conflict of interest.
In contrast to a similar situation in the civil service, in the municipal representative employer absent the levers of power, not only to determine the presence or absence of conflict of interest, but even to prohibit municipal employees working part-time in the identification of such a conflict.
As rightly noted, the Federal Law "On the State Civil Service of the Russian Federation", allowing civil servants to work part-time, if it does not cause a conflict of interest, however, establishes severe sanctions in case of abuse of this right. Civil servant who continues to work part-time, in spite of the Commission's decision on a conflict of interest, thereby violates the obligation stipulated claim 12 Part 1 Article 15 of the law, in accordance with claim 13, part 1 of Article 33 is ground for termination of the contract of service, exemption from the replaced and dismissal from the civil service. But Article 19 of the Federal Law "On Municipal Service in the Russian Federation" provides for the termination of an employment contract with the municipal officials led by a representative of the employer (employer) only in cases of non-compliance with the restrictions and prohibitions relating to municipal service. However, a conflict of interest does not refer to restrictions or prohibitions to [1, p. 47-48].
These provisions of the law need to be improved, and it is at the federal level. Resolve the issue through regional or municipal law-making is impossible, since it is associated with the restriction of the rights of municipal employees, as permitted in accordance with Part 3 of Article 55 of the Constitution, only the federal law.
The law only mentions the possibility in the manner determined by the municipal legal act, to form the commission to resolve the conflict of interest. Questions of work of such a commission at the state level determined by Presidential Decree of 03.03.2007 №269 [14]. It seems that, in accordance with the principle of the relationship of state and civil service the basic requirements for the Commission's activities can also be applied at the municipal level.
Even if these commissions are created in the municipalities, in practice, they often have a formal character, largely because of the episodic nature of their work, due to the fact that the sole reason for the meetings is the received information of a personal interest, which results or may result in conflict of interest: no information - Commission does not work [15]. In addition, the
advisory decision of the Commission provided for by the legislator, also contributes to its fruitful work. The inability to apply certain measures against violators of the legal regulations will reduce to zero the coefficient of efficiency of the commission, as any municipal employee will know in advance about a mere formality decisions adopted by the Commission, the absence of adverse effects due to violation of provisions of the law and liability as such, and he did not be motivated (as opposed to the situation in the area of the rules governing disciplinary, administrative, or, especially, criminal liability) to prevent conflicts of interest.
Thus, the main subject of prevention and settlement of conflicts of interest on municipal service remains leader. Legislator should have been provided is collegial, not the sole solution to the question of whether or not a conflict of interest.
Measures to prevent conflicts of interest, including preventive, can act to improve the system and structure, the organization of local government; avoidance of duplication, specification and optimization of the power of state and municipal authorities and officials; Improve the management of municipal resources, placing orders for the procurement of goods, works and services for municipal purposes; Requiring individuals holding municipal offices, similar to those identified for municipal employees duties, restrictions and prohibitions; development of legal and institutional mechanism to transfer municipal employees in trust securities, the shares (stakes in the authorized capital of organizations); continued the practice of providing information about the income, property and property obligations by all employees, not just included in the list established by normative legal acts of the Russian Federation; increase in salaries of municipal employees, motivation effectively discharge their duties; providing legal and social protection of employees; legislative strengthening list of situations in the event that a municipal employee shall notify their immediate supervisor of the conflict of interest or the possibility of its occurrence; settlement of conflicts of interest are independent of local authority committees [16].
In conclusion, we note that a conflict of interest in the system of municipal services cannot be considered a one-sided, as a simple conflict of personal interests of the employee and society, citizens and their associations. At its heart are a variety of factors, some conditions for the execution of municipal employees duties, institutional uncertainty in the organization of municipal services and others. Only prohibitive and advisory measures to eliminate the appearance of conflicts of interest in the municipal service is not possible [3, p. 29].
It is necessary to pay attention to the development of an adequate state, municipal, public interest internal and external environment of the municipal service, professional personality municipal employee, based on the official motivation of behavior which will be the principles of service to society, the rule of law and respect for civil rights and freedoms.
REFERENCES
1. Soldatov L. A. Conflict of interest on municipal service // Journal of Russian law. 2011. №3. p.46
2. A. A. Grishkovets Problems of municipal service reform in the Russian Federation // State and law. 2011. №7. p.23
3. Slyusarenko T.V. Settlement of the conflict of interests in the municipal service // State Government and local government. 2011. №11. p.24
4. Federal Law "On the Securities Market" dated 22.04.1996. №39-FL // NW dated 22.04.1996. №17 st.1918
5. Federal Law "On the Public Service in the Russian Federation" of 27.05.2003g. №58-FL // NW from 02.06.2003g. st.2063
6. Federal Law "On Civil Service" from 27.07.2004g. №79-FL // NW from 02.08.2004g. №31 st.3215
7. Federal Law "On Combating Corruption" dated 25.12.2008. №273- FL // NW from 29.12.2008g. №52 (Part 1) st.6228
8. Okhotsk E.V. The legal status of civil servant // State and law. 2012. №9. p.6
9. Kozbanenko V.A. Legal maintenance of the status of state and municipal employees: general and special // State and law. 2012. №1. p.37
10. Lyubov O.V. Topical issues of conflict of interest on state and municipal service // www.justicemaker.ru/view-article.php?art=602&id=25
11. Zakhvatova Y. U. Local government as the resource development of the country // Russian Federation today. 2012. №18. s.20-21
12. Labour Code of the Russian Federation // NW from 07.01.2002g. №1 (part 1) of Article 3.
13 Soloviev S.G. Official of the local self-government: Theory and Practice // Journal of Russian law. 2011. №8. p.12
14. Decree of the President of the Russian Federation from 03.03.2007g. №269 // Russian newspaper from 05.03.2007. №76.
15. Vasiliev V., Lazarev V. Conflicts of local government: a view from the province // Russian newspaper. 2011. №38. p.23
16. Avakyan S.A. Problems of legislation in the field of local government // Local Law. 2011. №2-3. p.14
PREVENTION OF STUDEN TS' INVOLVEMENT IN D ESTRUCTIVE RELIGIOUS SECTS
IN EDUCATIONAL INSTITUTION
Abstract. The paper deals with a problem of prevention of youth involvement in religious organizations of destructive orientation. The author gives the pedagogical model and proves the conditions of prevention of youth involvement in destructive religious organizations in educational institutions.
Keywords: religious sectarianism, pedagogical prevention, prevention of youth involvement in destructive religious sects.
TATYANA MUKHINA
PhD in Pedagogics, senior teacher, Department of Social Pedagogics and Psychology Vladimir State University tanea. muhina@mail. ru
Distinctive feature of spiritual processes in Russia of the last decades is revaluation of traditional values and standards of behavior, social stresses and loss of life meaning, demoralization of personality and dehumanization relations, change of family relationship, ethnic and political, international and religious conflicts. Economic, social and political crises in the country create favorable circumstances for replication of nonconventional religious ideas among the population.
The analysis of philosophical, theological, psychological, sociological and social and psychological literature on the problem of religious sectarianism allows drawing a conclusion that existence of religious sects has cultural and historical conditions. However, modern religious sects with disruptive signs lead to alienation of youth from family, educational institutions and society. Religious sects are form of search of youth social statement and form of leaving from the problems, complicating social adaptation of an individual. Values and standards of behavior, which young people acquire in such organizations, negatively influence on the formation and evolution of a personality. The world outlook, activity and existential vacuum define the need of pedagogical activity, directed on prevention of student's involvement in destructive religious sects, as people processes of vital self-determination, full self-expression and self-improvement are being broken under the influence of such sects on young.
Estimating the disruptiveness of religious sect and existence of psychological and/or other type of violence over the personality in its activity, traditionally consider such parameters as nature of leadership, contents and structure of the doctrine, requirement of membership maintenance in a group.
Sharing the points of view of I.A. Galitskaya and I.V. Metlik [1, 29-42], we consider that the main criteria of religious organization disruptiveness are:
1) requirement to brake off the social communications with the immediate environment, first of all with relatives, friends and people, who are in the sect;
2) rejection of rational, critical thinking at adherents of the religious organization;
3) declaration of exclusive wisdom, divinity of a leader and indisputable absolute validity of doctrine;
4) cultivation of dependence on sect and creation of obstacles for a free exit from it;
5) distorted interpretation of humanity ideas.
The prevention of youth involvement in destructive religious sects is a complex social problem, which successful solution is provided with integrated and interdisciplinary approach. Therefore, the concept of the prevention of youth involvement in religious sects has to cover medical, pedagogical, psychosocial and legal models of prevention.
