The system of administrative and legal means of ensuring legality in the implementation of licensing activities of federal executive authorities

Soloshenko Leonid Aleksandrovich Postgraduate Student, Department of International and Public Law, Financial University under the Government of the Russian Federation 105187, Russia, Gorod federal'nogo znacheniya Moskva, g. Moscow, ul. Shcherbakova, 38, kab. 305 leonid151195@yandex.ru

Article:

As noted earlier, one of the key principles of the implementation of licensing activities is legality, implying the existence of a particular licensing regime in the current legislation, the existence of a legal and de facto equality of all subjects before the law, expressed in the legal and de facto equality of opportunities for obtaining the necessary permission by all interested subjects of licensing activities (except for cases established by the legislation of the Russian Federation, .providing for the limitation of the range of subjects – recipients of permits)

At the same time, achieving compliance with this key principle is an extremely problematic task that requires the use of a wide variety of legal mechanisms. Within the framework of this study, it seems necessary to highlight the following of these mechanisms for ensuring the rule of law:

a) maintaining an up-to-date regulatory and legal framework for the implementation of licensing activities;

b) ensuring constant supervision of compliance with the requirements of the legislation of the Russian Federation in the implementation of licensing activities;

c) ensuring monitoring of the effectiveness and expediency of permitting activities within the framework of individual permitting regimes;

d) ensuring the possibility of appealing decisions taken by officials in the framework of permitting activities;

e) suppression of corruption-related manifestations in the framework of permitting activities.

Fulfilling the first task of maintaining an up-to-date regulatory and legal framework for the implementation of licensing activities within the framework of the activities of the FOIV is a rather difficult task due to the rather significant number of licensing regimes being implemented, the lack of legislative bases for the implementation of licensing activities in general, as well as high dynamism in the areas of public relations regulated by these FOIV. In these conditions, the key element of maintaining an acceptable level of regulatory framework is legal monitoring, which tracks 2 key criteria:

a) compliance of the acts regulating permissive regimes with the higher acts of the legislation of the Russian Federation, absence of conflicts between the norms;

b) ensuring the availability of all regulatory legal acts necessary for the proper implementation of the relevant licensing regime.

At the same time, the conducted surveys revealed the presence of a number of shortcomings of legal regulation in terms of the lack of necessary attributes for a number of permissive regimes implemented by the FOI. Thus, among the key shortcomings are the lack of appropriate administrative regulations for the provision of public services and insufficient "digitalization" of licensing regimes. We consider it necessary to attribute these shortcomings to gross violations in terms of ensuring the availability of all necessary regulatory legal acts that require immediate elimination.

At the same time, it is worth noting that the revealed direct inconsistencies with the higher acts of the legislation of the Russian Federation and conflicts between the norms are mostly due to the following two factors: the consolidation of the vast majority of the licensing regimes under consideration at the level of federal laws and the absence of a fundamental federal law regulating licensing activities in Of the Russian Federation, and establishing general requirements for the legal component of the licensing activity carried out.

Thus, we believe that with regard to the functioning of such a mechanism for ensuring legality in the implementation of licensing activities of the Federal Tax Service as maintaining an up-to-date regulatory and legal framework for the implementation of licensing activities, the situation is generally satisfactory, but requires significant improvement in terms of bringing the legal regulation of licensing regimes in line with the established legal standards for the provision of public services.

With regard to such a mechanism for maintaining the rule of law as ensuring constant supervision of compliance with the requirements of the legislation of the Russian Federation in the implementation of licensing activities, it is worth noting that this supervision should be carried out both for individuals and legal entities engaged in activities requiring the availability of appropriate permits, and for FOIV, making decisions on the issuance of these permits.

If in the first case the key element is the implementation of the primary (at the stage of granting and reissuing a permit document) and subsequent permissive control over applicants and holders of permits, then in the second case we are talking about the supervision of the activities of the federal executive authorities themselves and their officials.

At the same time, the current legislation of the Russian Federation does not provide for a special procedure for supervision of the activities of FOIV and their officials in the framework of permitting activities. At the same time, permissive activity is one of the areas of activity of executive authorities that carries increased corruption risks, which is especially relevant in relation to permissive regimes implemented in areas with a predominance of professional market participants.

However, the implementation of proper supervision in this direction, in turn, requires a high level of legal regulation of the relevant legal regimes, in particular, the mandatory availability of approved administrative regulations establishing a clear sequence of administrative procedures and grounds for the commission of certain legal actions by authorized officials, in addition, the subject of this supervision is also the supervision of compliance with the requirements legislation by officials during the implementation of initial and subsequent licensing control.

It is worth noting, however, that the current legislation does not provide for special methods of exercising such supervision over officials within the framework of permissive and accompanying control and supervisory activities, which, in turn, means the use of general mechanisms for monitoring compliance with the requirements of the legislation of the Russian Federation: prosecutor's supervision and anti-corruption actions carried out by authorized FOIV. At the same time, we consider it possible to develop special legal mechanisms for the implementation of both internal supervision over the implementation of licensing and control and supervisory activities, as well as mechanisms for external supervision of these activities by the prosecutor's office.

At the same time, with regard to the permissive activities of individual FOI, it is worth noting that with respect to a significant part of the permissive regimes, the use of special control mechanisms does not seem appropriate due to their specific nature, which does not provide for the presence of corruption-causing factors within their implementation, as well as in the absence of specific conditions for the implementation of activities that provide for the presence of such permissive regimes.

With regard to monitoring the effectiveness and expediency of permitting activities within the framework of individual permitting regimes, it is worth noting that this mechanism for maintaining legality is the least used among all those presented. Thus, in the current legislation of the Russian Federation there is no permanent mechanism for evaluating the effectiveness of the provisions of regulatory legal acts, with the exception of the assessment of the actual impact provided for by Federal Law No. 247-FZ of July 31, 2020 "On Mandatory Requirements in the Russian Federation" ^[4].

Thus, article 12 of the said federal law provides that the FOIV, which carries out regulatory and legal regulation in the relevant sphere of public relations, prepares a report on the achievement of the goals of the introduction of mandatory requirements (including the requirements provided for by the permissive legislation). Based on the results of consideration of the said report on the achievement of the objectives of the introduction of mandatory requirements, a decision is made to extend the validity period of the regulatory legal act establishing mandatory requirements, or to assess the actual impact of the regulatory legal act establishing mandatory requirements.

Based on the results of the assessment of the actual impact, in turn, it is possible for the Government Commission to make a decision on invalidation or revision of the regulatory legal acts of the Government of the Russian Federation and the Federal Tax Service establishing mandatory requirements. At the same time, the practice of applying the assessment of the actual impact is extremely small at the moment and actually indicates an extremely limited scope of its application in law-making practice.

Based on the above, we note that the existing mechanisms for monitoring the effectiveness and expediency of permitting activities within the framework of licensing regimes implemented by the FOI are either poorly used in practice, or do not extend their effect to a significant part of them. Consequently, the actual absence of an assessment of the effectiveness of the licensing activities carried out is an extremely urgent problem for the FOIV and requires appropriate permission, including by fixing such an assessment in the legislation of the Russian Federation.

Special attention should also be paid to such a mechanism for maintaining the rule of law as ensuring the possibility of appealing decisions taken by officials in the framework of permitting activities. So in this context, it is worth highlighting two key areas of appeal against the decisions taken: judicial and pre-trial appeal. We note that the very possibility of pre-trial appeal of decisions within the framework of permissive regimes implemented by the FOIV is often absent or carried out within the framework of standard procedures provided for by sectoral legislation, or according to the procedure provided for by administrative regulations for the provision of public services (if any) ^[2].

It is worth noting that this situation seems unsatisfactory and requires a speedy resolution. So the way out of it may be the introduction of a general procedure for mandatory pre-trial appeal of decisions taken within the framework of permitting activities, by analogy with the sphere of state control (supervision) ^[5]. We believe that this solution will allow to establish permanent communication between applicants (holders) of permits and FOIV, carrying out licensing activities (including in electronic form), reduce the burden on the judicial system, as well as identify the "pain points" of the existing licensing system.

At the same time, the creation of a universal mechanism for appealing decisions taken within the framework of permitting activities is not possible in the absence of a fundamental federal law on permitting activities. In our opinion, this universal mechanism should be based on the following fundamental principles – the speed of making legally significant decisions, the collegial nature of the consideration of complaints, as well as an open procedure for reviewing complaints with the possibility of participation of applicants and officials whose decisions (actions) are being appealed.

With regard to the judicial procedure for resolving disputes on issues of appeal against decisions taken by the Federal Arbitration Court, it is worth noting that the vast majority of licensing regimes are implemented within the framework of entrepreneurial (other professional activities), which means their jurisdiction within the system of arbitration courts of the Russian Federation.

Thus, the procedure for appealing decisions taken within the framework of licensing activities is given in Chapter 24 "Consideration of cases on challenging non-normative Legal acts, Decisions and actions (inaction) of state bodies, local self-government bodies, other bodies, organizations Endowed by federal law with Separate state or Other public powers, officials" of the Arbitration Procedural Code of the Russian Federation Federation ^[1].

The procedure for appealing decisions provided for by this chapter of the Agro–industrial Complex of the Russian Federation is typical for all decisions taken by public authorities and provides for the use of general rules of claim proceedings with the features established by this chapter - additional requirements for the content of the statement of claim and decision, a three-month period for consideration of the case. The obvious disadvantage of the judicial appeal procedure in the framework of permitting activities is a rather long period of consideration of the statement of claim, which is especially important due to the entrepreneurial nature of the activities of applicants (holders) of a permit document and the impossibility of functioning in the absence of a permit document.

On this basis, we believe that the main burden on the settlement of disputes between licensing authorities and applicants for permits should be placed on the licensing authorities themselves, or on the collective dispute resolution bodies created on their basis. This mechanism is also relevant for the permissive regimes implemented by the FOI in the field of finance.

With regard to the suppression of corruption-related manifestations in the framework of permitting activities, we consider it necessary to note that this mechanism for ensuring legality is to a certain extent a summation of the results of the work of the previously described mechanisms for ensuring legality, since its correct operation is not possible in the absence of proper regulatory legal regulation, ensuring constant supervision of compliance with current legislation, as well as the possibility of appeal decisions taken by authorized officials.

Consequently, the resolution of anti-corruption issues within the framework of the licensing activities of the FOIV requires consolidation of efforts in several directions at once. Based on the above, we note that the key corruption risks in the framework of permissive regimes are:

a) the absence in some cases of administrative regulations for the provision of relevant public services, which in turn means legal uncertainty regarding the regulation of key administrative procedures;

b) a de facto non-functioning mechanism for assessing the need to implement (adjust) the appropriate licensing regime, which gives rise to imperfection of the legal regulation of licensing conditions;

c) the absence in some cases of a working procedure for pre-trial appeal of decisions (actions) of authorized officials, which does not contribute to building trust relations between licensing authorities and applicants/holders of permits and creates an additional burden on the judicial system of the Russian Federation.

                        List of used literature

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