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3. Troubetzkoy E. N. Religious and social ideal of Western Christianity. - SPb.: Publisher RKhGI, 2004.
4. Kotlyarevskiy S. A. Power and right. - Publishing house «Lan», 2001. - Р. 122.
5. Michelle A. The idea of the state. Critical experience the history of social and political theories in France since the Revolution. - M.: Publishing House «The territory of the future», 2008. - Р. 186.
6. Shevtsov V. Division of the authorities in the Russian Federation. In 2 vols. - M., 2004. - Р. 284.
7. Civil society: the origins and the present. - Legal Center Press, 2000. - Р. 186.
Ospanova Jamilya Azizkhanovna, Cand. jur. sci., associate professor of department of the theory and history of state and law, constitutional and administrative law, Al-Farabi Kazakh national University E-mail: sergei--95-777@mail.ru
Tendencies of development of the modern administrative legislation in the Republic of Kazakhstan
Abstract: In this article is considered tendencies of development of the modern administrative legislation in the Republic of Kazakhstan. Reforming of the administrative legislation is caused by certain difficulties in practice of law-enforcement activity of the modern period of development as imperfection of the existing administrative legislation generated uncertainty on a number of questions. Research of regularities of process of modernization of the administrative and delictual legislation of the Republic of Kazakhstan from the moment of finding of independence and to the present showed that its forward development was based on program documents and, first of all, is connected with implementation of the Program of legal reform from 1994 to 2001.
Keywords: administrative legislation, reform, codification, law-enforcement activity.
In the conditions of the proceeding administrative and legal reforms the greatest relevance is gained by processes of modernization of the administrative and delictual legislation of the Republic of Kazakhstan regulating administrative and delictual types of the public relations which are formed as a result of perfect administrative offenses and involvement of the offender to administrative responsibility, or release of the person who made an administrative offense from administrative responsibility and an administrative penalty.
Reforming of the administrative legislation is caused by certain difficulties in practice of law-enforcement activity of the modern period of development as imperfection of the existing administrative legislation generated uncertainty on a number of questions. For example, rather legal nature of the sanctions provided in various laws, decrees of the President, resolutions of the government of the Republic of Kazakhstan, and also an order of their application that, eventually, negatively affected protection of the rights and freedoms of the person and citizen, the organizations in the administrative and delictual relations.
Considering the social and economic and political transformations happening in Kazakhstan this period of
development where the main idea of activity of government bodies was creation in the Republic of Kazakhstan of the constitutional and democratic state founded on market economy it is necessary to specify that in the Republic of Kazakhstan attempt of strict implementation of rules that borders ofstate regulation of the developing administrative and delictual relations have to be defined strictly by a legal framework and the legislation which have the purpose a problem of the maximum ensuring the principle of a priority of the rights and freedoms of the person was carried out. Also rules that the most admissible borders of intervention of the state in functioning of the market relations are defined by usefulness of this regulation for formation and functioning of new types of “vlasteotnosheniye” and all system of a new state system were considered.
In the context of reforming of the administrative and delictual legislation which main statutory act the Code of Administrative Offences had to be, noticeable lag in its development that was connected, first of all, with difficulties of a transition period was observed. Thus it is necessary to specify that are protected by measures of administrative and legal coercion not only norms of administrative law, but also the norms relating to other branches of the right.
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Tendencies of development of the modern administrative legislation in the Republic of Kazakhstan
At the same time, characteristic feature of this period was also that in all spheres of the Kazakhstan legislation codification of regulations which result was an adoption of new industry codes of the Republic of Kazakhstan was carried out: civil, criminal, civil procedural, criminal procedure, criminal and executive, etc.
However in the sphere of administrative law till January 30, 2001 in Kazakhstan the Code Kazakh with the Soviet Socialist Republic about administrative offenses of 1984 with the corresponding additions and changes which followed from the contents, specifics and essence of the formed market relations worked. Adoption of the Code of the Republic of Kazakhstan about administrative offenses ofJanuary 30, 2001 allowed to be claimed in opinion that the administrative and delictual legislation defining the bases, measures and an order of implementation of measures of institute of administrative responsibility came to a new stage of the development. The fact of implementation of its second codification which allowed to bring a considerable standard array of the administrative and delictual legislation into accord not only with the Constitution of the Republic of Kazakhstan, but also with modern social and economic realities of the country eloquently testified to it.
The idea about formation of qualitatively new institute of administrative responsibility in system of the Kazakhstan administrative law of torts by the legislator is substantially realized. And it isn’t casual as judgments of this sort visually are confirmed by the following examples. So, for example, the Code Kazakh the Soviet Socialist Republic about administrative offenses of 1984 existing before acceptance the Administrative Code of RK of January 30, 2001 contained a far incomplete list of norms on the circumstances excluding administrative responsibility which in the theory of the right existed actually in the structure. In the real case, the legislator was limited only to that were carried to their number — the emergency which found reflection in article 17 Administrative Code Kaz. The Soviet Socialist Republic, and the necessary defense which found reflection in article 18 Administrative Code Kaz. Soviet Socialist Republic.
In the new Code of the Republic of Kazakhstan about administrative offenses there were whole chapters devoted to a regulation ofthe called types ofthe public relations. Changes in political and legal reality, new approaches in rule-making, efforts of scientists in the sphere of administrative law led to corresponding changes in branch from the point of view of its standard and legal filling. There was a large number of own acts, and at the level of laws which
existence during the Soviet period was impossible (laws on public service, administrative procedures, appeals of natural and legal entities, etc.).
Further reforming of the administrative and delictual legislation of the Republic of Kazakhstan is inseparably linked with adoption of the Concept of legal policy of the Republic of Kazakhstan of September 20, 2002.
The advantage of the called Concept is that within the specified document is defined by the legislator that “the current legislation providing functioning of legal system of the country according to the Constitution of the Republic of Kazakhstan, the conventional principles and norms of international law demands further development, in particular, of stage-by-stage improvement of current laws, and also acceptance in need of the new regulations meeting the requirements of further democratization of society and problems of social and economic development" [7, 4].
The legislation on administrative offenses has to be most directed on restoration of the violated rights, the prevention of the legal conflicts in society by administrative and legal measures. Thus when forming administrative and legal sanctions the principle of their harmony of degree of public danger and to character of an offense has to be observed strictly [2].
Essentially that the called starting positions formed a basis for further formation of the new administrative and delictual legislation, and studying of practice of application of the Code of the Republic of Kazakhstan about administrative offenses, both judges, and other subjects of administrative jurisdictional activity, caused the necessity of entering of essential changes into the Code of the Republic of Kazakhstan about administrative offenses (2001) and in some other acts of the Republic of Kazakhstan regulating the administrative and delictual relations. The bases for this purpose were the numerous conflict moments which were characteristic for the existing administrative and delictual legislation:
- first, remained not up to the end worked problematic issues of a ratio of standards of the Code of the Republic of Kazakhstan of administrative offenses with other standards of the administrative legislation;
- secondly, it was not until the end of worked norm on a deadline ofpronouncement of the resolution on the case of an administrative offense from the moment of commission of an offense. Unfortunately, it still allows its double interpretation of right application by bodies. So, for example, one judges consider this term as preclusive, others carry this term only by the time of pronouncement of primary resolution on business;
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- thirdly, in the Code of the Republic of Kazakhstan about administrative offenses it is necessary to make changes to separate articles of Special part to exclude their contradictions with other articles of Special part and other sections, and also to provide compliance to requirements of the theory and practice [8, 26-30];
- fourthly, still there is a question of expediency of “binding" of the sizes of administrative penalties to the minimum compensations (MRP), etc.
Called us above and other reasons existing for this purpose became a basis for this purpose that for the first time for all history of development of administrative law the legislator came to a conclusion about need of differentiation of the administrative and delictual legislation to two most parts: material and procedural, and on the basis of these ideas today in Kazakhstan are developed and Drafts of the new Code of the Republic of Kazakhstan about administrative offenses and the Administrative procedural code of the Republic of Kazakhstan are widely discussed.
Supporting and joining an initiative of the legislator, analyzing a role and value of estimated codes, we want to pay attention to the next basic moments defining fidelity of the decision made by the legislator:
- first, as it is represented to us, the legislation of the Republic of Kazakhstan on administrative offenses has to consist of the Code of the Republic of Kazakhstan about administrative offenses and other acts of the Republic of Kazakhstan. At the same time, other acts providing administrative responsibility are subject to application only after their inclusion in the called Code. Thus it is necessary to recognize that the legislation of the Republic of Kazakhstan on administrative offenses has the task protection of the rights, freedoms and legitimate interests of the person and citizen, health, sanitary and epidemiologic wellbeing of the population, environment, public moral, property, a public order and safety, an established order of implementation of the government protected by the law of the rights and interests of the organizations from administrative offenses and the prevention of their commission.
For implementation of this task the Draft of the Code of the Republic of Kazakhstan about administrative offenses establishes the bases of administrative responsibility, types of collectings imposed for commission of administrative offenses, and other measures of administrative and legal influence, and also the basis for an exception and release of the person who made an administrative offense from administrative responsibility and an administrative penalty [9]; from administrative offenses and the prevention of their commission.
- secondly, the Administrative procedural code has to govern the public relations arising by affairs production about administrative offenses, and also the public relations arising at administration of justice by courts by consideration and permission of the administrative disputes referred to their competence by the present Code.
Problems of administrative production are protection of the violated or challenged rights, freedoms and interests of the person and citizen, legitimate interests of legal entities protected by the law, strengthening of legality and a law and order, the prevention of offenses, and also timely, full and objective clarification of circumstances of each business, its permission according to the Draft of the present Code, ensuring execution of the passed decision [10].
Processes of improvement of an administrative law of torts to be limited to those processes and actions about which we already told, can’t. Dynamics of the modern administrative and delictual relations testifies that ahead of us the new researches promoting further improvement of the administrative and delictual legislation wait. In this case it is necessary to agree that the Kazakhstan administrative and delictual legislation which changed within the last decade after all still will present us the new conceptual and structural changes demanding the further theoretical judgment and reflection on pages of the modern legal press.
References:
1. Nugmanova Je. A. Teoreticheskie i prakticheskie problemy sovershenstvovanija administrativno-jurisdikcionnoj dejatel’nosti v Respublike Kazahstan: diss. ... dokt. jurid. nauk: 12.00.02. - Almaty, 2010. - 333 s.
2. Suttibaeva A. A. Teoreticheskie problemy instituta administrativnogo presechenija: diss. ... kand. jurid. nauk: 12.00.02. - Almaty, 2008. - 118 s.
3. Administrativnoe pravo: Uchebnyj kurs./Pod red. R. A. Podoprigory. - Almaty: Nalogovyj jekspert, 2010. - 368 s.
4. Shergin A. P. Izbrannye trudy jubiljara./Sost. i otv. red. V. G. Tatarjan. - M.: Akademija jekonomicheskoj bezopasnosti MVD Rossii, 2005. - 487 s.
5. Koncepcija pravovoj politiki Respubliki Kazahstan. Odobrena Ukazom prezidenta Respubliki Kazahstan ot 20 sentjabrja 2002., № 949. - Almaty: DEShKIS, 2002. - 28 s.
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The role of objective factors in the implementation of the legislative activity of the Parliament of the Republic of Kazakhstan
6. Salishheva N. G. K probleme sovershenstvovanija norm Kodeksa Rossijskoj Federacii ob administrativnyh pravonarushenijah.//Materialy mezhdunarodnoj nauchno-prakticheskoj konferencii «Aktual’nye voprosy administrativno-deliktnogo prava», posvjashhennoj 70-letiju zasluzhennogo dejatelja nauki Rossijskoj Federacii, doktora juridicheskih nauk, professora A. P. Shergina. - M.: VNII MVD Rossii, 2005. - S. 26-30.
7. Proekt Kodeksa Respubliki Kazahstan ob administrativnyh pravonarushenijah ot 30 sentjabrja 2009. - Almaty: Hartija za prava cheloveka, 2009. - 490 s.
8. Proekt Administrativnogo processual’nogo kodeksa Respubliki Kazahstan (ijul’ 2009.). - Almaty: Hartija za prava cheloveka, 2009. - 157 s.
Otarbay Aygerim Uysengalikyzy, Al-Farabi Kazakh National University, master student 1st cours, Faculty of Law
Zharbolova Aygerim Zhaksylykovna, Candidate of Law, Law department of the Theory and History of State and Law, Constitutional and Administrative Law, Al-Farabi Kazakh National University E-mail: zharbolova.aygerym@mail.ru
The role of objective factors in the implementation of the legislative activity of the Parliament of the Republic of Kazakhstan
Abstract: A concept and essence of objective bases that influence on the process of law making and on forming of sense and maintenance of laws open up in this article. The necessity of account of objective bases is also grounded. Interdependence of factors of objective and subjective character, influencing on legislation, is thus underlined. Keywords: legislative activity, objective factor, legal norm, normatively legal act, planning, legislative.
Legislative activity is always under the influence of certain objective and subjective factors. Objective basis and subjective factors drive the legislative process, influence the content of laws. Although the legislative activity of the Parliament of the Republic of Kazakhstan is the result of conscious activity of deputies, it contributes to a number of factors. These factors may depend on consciousness and will of the legislator and can exist independently of them. Objective factors influencing legislative activity — these are the conditions that do not depend on human consciousness and will, at the same time are crucial, the basic conditions (natural and geographical conditions, socio-historical conditions, social and economic bases, etc.) underlying this activity.
A subjective factors lawmaking is a conscious activity of members of legislative activity. Considering them together as a whole we see that the objective factors are lever legislation and influence the formation of the content of the bill, and timely knowledge of objective factors and the timely adoption of necessary law is the result of subjective factors, that is, the implementation
of conscious human activity. The category of “objective factor” makes it possible to understand that historical events are determined by objective laws independent of human consciousness and to establish how the objective side of the story depends on the person’s consciousness and world view, as well as his actions.
Objective factors compared to subjective factors are the initial, decisive. Since the action of the legislator on legislative activities are objectively justified. The legislator does not choose the objective external conditions that underlie the legislative activities at their own discretion. He is always associated with certain objective reasons and is dependent on the objective necessity.
Subjective factors legislative change, develop, and are also in the interaction due to the influence of objective bases. Consequently, economic, socio-historical and other objective foundations affect consciousness and actions of deputies, members of the Government in the implementation of the right of legislative initiative.
Conscious activity of deputies, as well as other actors involved in the legislative process depends on the
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