Шугрина Е.С. Понятие и формы защиты права на осуществление местного самоуправления

Аннотация: The article proposes the concept of protection, considers the difference between protection and security and highlights various forms and levels of protection. The article considers the powers of the bodies extrajudicially engaged in protection of the right to local self-government. The legal process of protection of the right under consideration is characterized, first of all, by the Constitutional Court of the Russian Federation activity, and the work of courts of general jurisdiction and arbitration courts. The article analyzes the provisions of the Constitution of the Russian Federation and the laws regulating protection of the right to local selfgovernment, including the 2003 laws on the general principles of the organization of local self-government, and the Civil and the Arbitration Procedure Codes. The article compares the current law to the previous one (in particular, the provisions of the 2003 Federal Law On the General Principles of the Organization of Local Self-government and the 1995 Federal Law On the general Principles of the Organization of Local Self-government). The shortcomings of the legal regulation are pointed out. Attention is paid to the citizens rather actively using the right to legal protection, however local government institutions do not expose such activity. The reasons leading to absence of interest on behalf of the municipal formations in the outcome of the matter and to decline of their activity in protecting the violated rights are analyzed. It is stated that efficiency of legal protection of the right to local selfgovernment is connected and with other issues, among which it is necessary to purposely separate the following: permanently varying local self-government laws not always having a necessary level of legal methodology, absence of single law enforcement practice and quality of the judicial manpower training. The traditional judge force in courts of the general jurisdiction is not prepared to such work; corresponding qualification, another level of psychological and vocational training is needed. Besides, judges in courts of the general jurisdiction have very broad specialization. The author suggests correcting the situation at hand, including by training of judges in the municipal law fundamentals, by generalization of the practice of the Supreme Court and the Supreme Arbitration Court of the Russian Federation, and by adoption of the plenum decisions. Speaking about legal protection as the major guarantee of the rights to local self-government the author emphasizes that if the citizens consider protection of violated rights and legitimate interests in local self-government a constitutional law, the authorities and officials take it as their constitutional duty. The author comes to a conclusion that the citizens exercising the right to local self-government have simultaneously the right to legal protection of such right; but the authorities and officials of local self-government not just have such right but and are obliged to protect the right of the citizens to local selfgovernment in all legitimate ways and remedies, including in an action at law. Otherwise, such failure to act may be considered as the authorities and officials failure to execute their liabilities to the population.

Abstract: The article proposes the concept of protection, considers the difference between protection and security and highlights various forms and levels of protection. The article considers the powers of the bodies extrajudicially engaged in protection of the right to local self-government. The legal process of protection of the right under consideration is characterized, first of all, by the Constitutional Court of the Russian Federation activity, and the work of courts of general jurisdiction and arbitration courts. The article analyzes the provisions of the Constitution of the Russian Federation and the laws regulating protection of the right to local selfgovernment, including the 2003 laws on the general principles of the organization of local self-government, and the Civil and the Arbitration Procedure Codes. The article compares the current law to the previous one (in particular, the provisions of the 2003 Federal Law On the General Principles of the Organization of Local Self-government and the 1995 Federal Law On the general Principles of the Organization of Local Self-government). The shortcomings of the legal regulation are pointed out. Attention is paid to the citizens rather actively using the right to legal protection, however local government institutions do not expose such activity. The reasons leading to absence of interest on behalf of the municipal formations in the outcome of the matter and to decline of their activity in protecting the violated rights are analyzed. It is stated that efficiency of legal protection of the right to local selfgovernment is connected and with other issues, among which it is necessary to purposely separate the following: permanently varying local self-government laws not always having a necessary level of legal methodology, absence of single law enforcement practice and quality of the judicial manpower training. The traditional judge force in courts of the general jurisdiction is not prepared to such work; corresponding qualification, another level of psychological and vocational training is needed. Besides, judges in courts of the general jurisdiction have very broad specialization. The author suggests correcting the situation at hand, including by training of judges in the municipal law fundamentals, by generalization of the practice of the Supreme Court and the Supreme Arbitration Court of the Russian Federation, and by adoption of the plenum decisions. Speaking about legal protection as the major guarantee of the rights to local self-government the author emphasizes that if the citizens consider protection of violated rights and legitimate interests in local self-government a constitutional law, the authorities and officials take it as their constitutional duty. The author comes to a conclusion that the citizens exercising the right to local self-government have simultaneously the right to legal protection of such right; but the authorities and officials of local self-government not just have such right but and are obliged to protect the right of the citizens to local selfgovernment in all legitimate ways and remedies, including in an action at law. Otherwise, such failure to act may be considered as the authorities and officials failure to execute their liabilities to the population.