Issues of the Administrative Law System / Вопросы системы административного права

Куракин Алексей Валентинович ORCID: 0000-0003-0812-8212 доктор юридических наук профессор; кафедра частного права ; Государственный университет управления 109542, Россия, г. Москва, Рязанский пр-т, 99 Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 99 Ryazansky Ave., Moscow, 109542, Russia kurakinaleksey@gmail.com Другие публикации этого автора

This article was compiled with informational support from the Consultant Plus company.

The subject of legal regulation is fundamental both from a doctrinal and practical point of view.

This is especially true for those branches of law with a certain political and social "pressure." Administrative law refers to these branches of law. In this regard, D.N. Bakhrah was right when he noted, "The emergence of private enterprises, the development of Russian federalism, the formation of administrative proceedings, the emergence of municipal law, the sharp expansion of the application of administrative liability measures had a direct impact on the subject of administrative law" ^[1].

It must be remembered that the "fate" of administrative law—as an academic discipline—is complex. It is known that this academic discipline was repeatedly excluded from the curriculum in the 1930s, and scientific research was carried out under the strict supervision of the relevant authorities. Teachers of this discipline were often subjected to scientific obstruction or even completely suspended from work. The reasons for this, among other things, are in the definition of the subject of administrative law, as well as the role that the industry in question plays in the legal system, the life of the state, society, as well as the individual.

All this suggests that the question of administrative law in some periods of our history was not only legal but, to a greater extent, political in nature. In the Soviet period, only one monograph was published on administrative law (Kozlov Yu.M., 1967). And, it would seem, the question was closed on this; the subject of administrative law was defined, both scientifically and didactically. A large number of serious scientific studies concerning the problems of public service, management problems, administrative responsibility, administrative coercion, administrative processes, norms of administrative law, and administrative legal relations, the subject of this branch does not seem to have been specifically touched upon, or there was a statement of the fact that this branch regulates relations that develop in the sphere of state or public management. This approach was due to ideological reasons, ignoring which could lead to the historical and methodological connection of administrative law with police law and, accordingly, the connection of administrative activity with police activity. Until recently, the word "police" was a hostile, "bourgeois" word, and therefore, the "police" part in the subject of administrative law was kept silent. Which, of course, impoverished this branch of law as an academic discipline and as a science.

In the early nineties, police law "returned." This was facilitated by liberal political transformations, the experience, and the scientific erudition of some representatives of the science of administrative law, whose works were used to prepare this work. It should be noted that the study of the branch of law begins with a general analysis of its subject and, what is very important in its disclosure, from the very beginning, to identify the "key points," elements of the system of this branch of law. This will allow the person studying the subject of the branch of law to pay attention to the main premise immediately; it is better to understand and remember the normative and theoretical material. However, even at present, the focus in administrative law is on management problems, and the police aspect is overlooked, which, of course, does not contribute to developing the theory of the relevant issue.

This monograph is intended to draw attention to administrative law and its structural elements. We emphasize that the main idea of building a system for administrative law, which is the basis of this study, belongs to K.S. Belsky. This article is, to some extent, intended to popularize his scientific concept, which was somewhat forgotten in the hustle and bureaucracy of scientific and pedagogical activity. It should be noted that significant studies of the subject of administrative law today seem to be the works of D.N. Bakhrakh, A.A. Grishkovets, Yu.M. Kozlov, A.P. Korenev, G.I. Petrov, Yu.P. Solovya, V.D. Sorokin, and Yu.N. Starilov. The works of these authors reveal and theoretically substantiate the elements of administrative law, which is very valuable for the science of administrative law, and the subject of the industry under consideration today are the achievements of the presented authors regarding "service law" and "police law."

Actual problems of management law: Management issues in one or another sphere of social reality do not lose their relevance.

The effectiveness of the management process, as well as the qualitative application of legal norms, depends on the correctly set task. Many works have been written about the importance of managing social processes. At the same time, we note that such a category as "management," in the institutional aspect, is the object of study of various social, economic, and technical sciences. Mathematical and information methods are also involved in studying the management process. All this speaks to the importance of state (public) governance and its objective necessity to create an effective state.

It is extremely difficult to consider all aspects of management and the management process, even within the framework of legal science, as each branch of law has its own subject of research, which is of a managerial nature. One of the key branches of law defining the legal essence of public administration is administrative law. The very name of this branch of law has a management component. In this regard, we will consider the problems of law in management from the point of view of the doctrine of administrative law and define the institutional and functional essence of such a phenomenon as "managerial law."

It should be noted that in the disclosure of administrative law regulation, there is a direct indication that this branch regulates managerial relations. Let us note that management is always power, the use of imperative methods of influence, and, as a result, power-subordination relationships arise, and subordination relationships are formed. Governance is a process necessary for society for its self-organization and development, and the law adapts to this process, making it legitimate while determining the forms and methods of its implementation. G.V. Atamanchuk noted, "Management is one of the expressions and a product of people's consciousness. There is an objective relationship of management with the human mind. Other relationships in the material world do not relate to management and should be characterized by other concepts" ^[2]. Note that the question regarding the subject of "management law" is, in fact, a question regarding the subject of administrative law, in any case, an important part of it. However, to determine the subject of legal impact, as previously noted, it is necessary to know the essence of the phenomenon on which the intended effect of the legal norm will be carried out; this is because this phenomenon often lies outside the subject of law, on this basis, a few words need to be said regarding the category of "management."

Management is a rather complex process, with various social connections implemented vertically and horizontally. In this regard, we can agree with Yu.P. Kurashvili, who once wrote, "Public administration is an extremely complex dynamic system, each element of which produces, transmits, perceives, and also transforms the regulatory impact in such a way that it merges, ultimately, into what society needs—a given order of public life" ^[3].

As A.P. Korenev notes, "In general, management can be defined as the process of influencing the system to transfer it from one state to another or maintaining it in the established mode" ^[4]. N.Y. Khamaneva writes that "management is a universal and necessary element of the world around us. Social management is the management of various social processes in human society" ^[5].

These theses mean that a modern society cannot exist without public administration, as it will not have enough opportunities for self-organization exclusively. Social development depends on the effectiveness of public administration; in this regard, administrative transformations are carried out in various states, and sometimes, these reforms are translated into a permanent process. To improve the efficiency of public administration, in some cases, amendments are made to the Constitution. This can be confirmed by the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation on March 14, 2020, "On improving the regulation of certain issues of the organization and functioning of public power."

As V.E. Chirkin noted, "Public power is a special phenomenon, state, and attitude" ^[6]. Note that the terms "public authority," "public administration," and "public service" appeared in doctrinal terms relatively recently; these terms were generalized in nature and meant everything that was connected with the state or came from it. The term "public authority" has moved from the doctrinal category to the practical and normative direction.

The modern state should continuously search for the optimal model of state (administrative) influence on society. Public administration should be flexible, be able to respond promptly to emerging challenges and threats, as well as be ready to work in emergency circumstances. A modern state should have two systems of public administration: a management model operating under normal (standard) conditions and a management system in case of emergencies caused by social, natural, and manufactured causes.

It has already been noted that, objectively, the law does not concern all aspects of management but only a particular part of it. Management is an organizational process that is not identified with legal activity. The management process involves certain stages developed by management practice, as well as the logic of this work. So, management consists of the development and adoption of a management decision and the setting of a specific goal, which should be correct and adequate. Practice shows that a wrongly set task will make the management process ineffective and, thereby, the goal will not be achieved.

The organization of execution is an important element of the management process, which involves the selection and placement of personnel, material, and technical support. It should be noted that when staffing the management process, several non-legal factors must be considered, namely, the psychological compatibility of the participants of collective work, their personal and professional qualities, and a state of personal trust that is also needed. It is impossible to achieve results without taking into account these components. Further, management involves monitoring and accounting for the results achieved. Control is an important component of the management process. It is this control that will ultimately answer the question regarding the results of management, as well as the achievement of the set goal. The designated elements in the content of control often do not lie in the legal plane; this once again suggests that management is a non-legal category. However, the right must be within the management process. The law determines the forms and methods of management, management principles, responsibility of management entities, etc. Important laws regulating managerial relations include, for example, the Federal Constitutional Law of November 6, 2020, “On the Government of the Russian Federation”; the Federal Law of December 21, 2021, "On the General Principles of the Organization of Public Power in the Subjects of the Russian Federation"; the Federal Law of July 27, 2004 "On State Civil service of the Russian Federation", etc.

It should be noted that public administration, as a functional and institutional category, has specific algorithms that are generally universal. However, to increase the effectiveness of public administration, it is necessary to know and understand the object of managerial influence, the nature and specifics of the relevant relations, and the social ties that develop about this management. In this regard, we agree with M.I. Eropkin, who noted that "the study of management issues requires a preliminary analysis of the relevant sphere in which social relations are developing. For example, management in the field of public order protection involves the study of the category of "public order." This category is non-legal, and therefore, it is necessary to understand the various social ties that arise in the sphere of public order before exerting managerial influence on it ^[7]. The presented author although he explores the problems of police management, this approach should take place in other areas of managerial influence. Thus, misunderstanding the object of organizational influence, the specifics of relations, and the features of the management environment dooms a complex management process to failure.

As already noted, when managing, you need to consider many non-legal components, namely, the mentality of the people involved in the management process, their levels of education and culture, traditions, customs, etc. Thus, the active introduction of digital technologies into the management process has left many people behind the "board of technological development." Many people in our country do not have modern mobile devices, and without them, they cannot use the appropriate technologies and digital services. This aspect should also be considered when creating and implementing digital public administration technologies. Digital technologies are not only a benefit but also pose a risk of loss of personal and other socially significant information; in addition, digital technologies are "merciless" in the social aspect, and thus, in some cases, they can harm citizens with their technology, as well as excessive formalization, sometimes even much greater than even corruption.

Management is essentially a meaningful interaction process between various subjects, assuming the presence of direct and feedback links between them. Management may be internal in nature, involving intra-organizational administrative relations between a manager and subordinates. Management also assumes an external aspect of its manifestation, which is associated with control (supervision), permissive influence, the use of coercion, as well as the provision of public services.

Public services are a positive form of public administration, the appearance of which has now increased the efficiency of management, as well as reduced corruption risks in the interaction of an official and a citizen. Thus, today, management is not only a vertical relationship; management also involves horizontal administrative relationships, which are formed when working with citizens' appeals in government and management bodies when providing public services, as well as when interacting with various management bodies necessary to solve a joint task. As an example of regulation of interaction, we can cite the order of the Ministry of Internal Affairs of the Russian Federation No. 879, the Ministry of Health and Social Development of the Russian Federation No. 746 dated November 3, 2006, "On approval of the rules of interaction of internal affairs bodies and territorial bodies of Rospotrebnadzor in the detection and suppression of administrative offenses in the consumer market of the Russian Federation."

Interaction, as a management category, opens up additional opportunities in implementing a task; in this regard, there are currently various regulations for interaction. Managerial interaction is especially relevant in emergencies of various kinds. The joint activity of public authorities involves interaction and coordination of work. Unlike interaction, coordination forms vertical administrative relations, while there is the creation of a single control center. Such management makes it possible, for example, to develop methodological recommendations that are necessary for solving a particular issue. As an example, we can cite the letter of the Ministry of Labor of the Russian Federation dated April 15, 2022, No. 28-6/10/P-2479: "On updating the review of the practice of holding state (municipal) employees accountable for non-compliance with restrictions and prohibitions, non-fulfillment of duties established to counter corruption." This document contains methodological recommendations for working with anti-corruption legislation, and the Ministry of Labor coordinates the relevant issue.

Management is always a process of conscious, as well as purposeful influence, a particular form of communication of subjects involved in the content of management. Management is diverse and, depending on the object of management influence is divided into biological, technical management, as well as social management. Public administration is a kind of social management that is conscious and subjective. Public administration is carried out in society and about people, and thus, it is an obligatory attribute of the state. As noted by V.V. Golovin and L.A. Kalganova, "... management is the functions of organized systems of various nature" ^[8]. However, even though governance permeates all spheres of human life, not all aspects acquire legal forms. Public administration, as a purposeful, conscious activity of authorized entities, is always of a legal nature because this activity is carried out by authorized entities whose status is defined in legal norms.

As already noted, public administration, initially having an organizational character, gradually acquires a legal form and becomes the object of legal influence, the subject of the relevant branch of law. From this, K.S. Belsky and A.A. Grishkovets noted that "... the law of public administration is a set of legal norms regulating public-management relations" ^[9]. A.A. Grishkovets, in his independent work, noted more precisely: "...managerial law is a sub-branch of administrative law, which consists of a compact system of interrelated norms distributed by institutions regulating public relations in the field of public administration" ^[10].

Public administration is one of the activities of the state, represented by the entities that represent it. Management activities, by their legal nature, differ from other types of activities that are carried out on behalf of the state and in the interests of society. These types of activities, in particular, include justice and lawmaking. As the literature notes, "... the essence of public administration, which distinguishes it from other specified types of state activity, is that it consists in the execution and implementation of laws and other regulatory legal acts" ^[11].

The executive and administrative nature of public administration distinguishes it from other areas of state activity. However, we note that the subjects of public administration are also endowed with the right to "create" the norms of law, which are contained in subordinate regulatory legal acts. As K.S. Belsky noted, "... the necessary auxiliary function of the executive power is the rule-making function, which consists in the publication of regulatory acts of management by the bodies of this power" ^[12]. I must say that public administration is implemented through the forms established by law, particularly the legal form. In subordinate regulatory legal acts (management acts), the legal form of public administration manifests itself. As V.M. Bezdenezhnykh noted, "... the form of administrative activity is an external manifestation of the content of managerial work, a way of its expression and practical implementation" ^[13].

It is impossible to carry out public administration without issuing legal management acts. These legal acts contain managerial potential, as well as a mechanism for implementing a law or other regulatory legal act. As A.I. Elistratov noted, "... public administration establishes legal forms, and the normative act of public administration is an expression of will aimed at establishing a legal norm" ^[14]. S.N. Zhevakin believes that "... management acts are significant as a component of the mechanism of law. They bring the requirements of the law to the addressee and organize the implementation of these requirements" ^[15]. Based on this, it can be concluded that the publication of legal acts of management is the subject of management law. The procedure for issuing regulatory legal acts of management is regulated by the Decree of the Government of the Russian Federation of August 13, 1997, "On approval of the rules for the preparation of regulatory legal acts of federal executive authorities and their state registration." As the designated document indicates, "Regulatory legal acts are issued in the form of resolutions, orders, rules, instructions, and regulations. The publication of regulatory legal acts in letters, orders, and telegrams is prohibited."

Note that the administrative contract also applies to the means of regulating managerial relations, in addition to the management act of the appropriate form. This agreement, to a certain extent, makes it possible to coordinate the parties' interests in solving the management issue. As noted by A.P. Korenev and A.A. Abdurakhmanov, “An administrative contract is an agreement based on the norms of administrative law, understood as a mutual and consensual manifestation of the will of the parties regarding a common goal between two or more formally equal subjects. An administrative contract has as its subject the commission of managerial or organizational actions in which at least one of the parties is a public administration body or its legal representative." ^[16].

It seems that with the help of an administrative contract, as a means of regulating managerial relations, it is possible to smooth out some organizational contradictions of the parties to the administrative and legal relationship, as well as to consider both private and public interests in the management process. In this regard, an administrative contract can be viewed as a relatively progressive form of managerial influence. Further, we note that public administration is a rather specific sphere of labor activity; in this regard, it is carried out by people who have a certain legal status, in particular civil servants, as well as other officials. A.I. Elistartov called such people "agents of the state," noting that "The means of the state are, on the one hand, the personal forces of service personnel and, on the other hand, the material resources of the state" ^[17].

In this regard, an important component of management law is service law. Service law began to be discussed in detail in the nineties. During that time, the Federal Law of July 31, 1995, "On the fundamentals of the civil service of the Russian Federation," was adopted. This law predetermined the development of all service legislation and also formed the basis for the formation of the idea of "service law." The doctrine of service law was one of the first in the conditions of the new democratic Russia to be developed by Yu.N. Starilov. Thus, the designated author spoke about service law as an independent branch of public law, which is designed to regulate relations in the field of public service organization, establishing the legal status of a civil servant ^[18]. In a certain period, the idea of service law gained popularity. Textbooks have been published on this issue ^[19]. However, representatives of the old school were very reserved about the idea of "service law." This can be evidenced, in particular, by the textbook for the training of civil servants by A.F. Nozdrachev ^[20].

Currently, the idea of service law has been subjected to constructive criticism. Thus, A.A. Grishkovets noted that "the model of public service has not been formed in our country, and, consequently, there can be no official right" ^[21]. The existence of legislation on public service does not yet speak about the legal structure that has been formed, in this case, "service law." The Russian civil service today, unfortunately, has many vices caused by corruption and protectionism; there needs to be a clear model of an official career in the civil service; the civil service is also very opportunistic. In these conditions, it seems difficult to talk about "service law" as an integral legal and social education.

Meanwhile, Yu.N. Starilov's idea about service law has been very successfully implemented in the educational process, so, at present, a training course is being taught in one form or another: "The Law of Public Service." This course contributes to a better study and understanding of legal doctrine, as well as regulatory material related to public service issues. It should be noted that service law is an integral part of the law of public administration; it can be said to be a link between a public authority and a citizen.

In conclusion, it can be noted that the right of management is an integral part of administrative law, which is designed to regulate public relations related to the implementation of the state's functions, the establishment of forms and methods of its work, as well as the passage of public service.

Actual problems of police law

The question of legal categories is one of the most relevant for legal science, the practice of applying the norms of law, as well as the activities of public authorities and management. In this regard, there is an objective need to consider the phenomenon of "police law" to determine its functionality and place in the system of means of legal regulation. It should be noted that legal means are always identified with a branch of law, the norms of which these means directly fix. Police law is currently not an independent branch in the system of domestic law. However, this legal education is developing quite rapidly and, in general, concerns almost every citizen who falls into the sphere of the non-collective communication of people, as well as in the system of ensuring public safety. Given the importance of the police function in the state, it is no longer possible not to recognize the phenomenon of police law. Thus, A.I. Elistratov wrote that "police law was profoundly different in nature even from the modern law of civil and criminal law, that the old lawyers who followed its emergence looked at it as an ugly growth in the legal system" ^[22].

Perhaps more time will pass, and doctrinal disputes regarding such a legal institution as "police law" will cease. The corresponding legal education will be recognized as an independent branch of the law of a public legal nature, and the phrase "police means" will be used in cases where it is necessary to apply means of legal protection. It should be noted that taking into account modern challenges and threats to certain relations and the state of security, as well as various non-standard political and legal circumstances, it is said that there are more than enough prospects for the development of police law. As noted by Yu.P. Solovey, "Police law is developing in the direction of forming a greater internal interconnectedness of its sources, their greater isolation from the rest of the mass of legislation and, consequently, there is a strengthening of the autonomy of police norms. And therefore, in the future, recognition of the status of an independent branch of law for 'police law' cannot be excluded, as it happened with such branches of law as financial law, customs law, etc." ^[23].

Note that effective legal education has the necessary unity of interrelated and complementary elements; such education today is, for example, administrative law. This branch of law regulates a relatively wide range of public relations, including those of a police nature, and therefore, police law is currently one of the key institutions of domestic administrative law. Political and legal realities, accumulated normative material, and its systematization sometimes objectively raise the question of the need to create a new legal phenomenon in the form of a new branch of law. However, it must also be recognized that sometimes, this happens due to various conjunctural considerations.

There are different points of view regarding the emergence of new legal entities, including those of a public and legal nature. Thus, A.P. Korenev once noted that "in recent years, the separation of new branches from administrative law, such as sports law, service law, police law, is justified. There seem to be no objective circumstances for this; all these branches have a common subject of regulation and are parts of administrative law" ^[24]. We agree that the fragmentation of the branch of law into smaller legal entities, and even more so without any objective circumstances, destroys the legal matter that has been formed evolutionarily for a long time. So, some time ago, the legal phenomenon of "service law" was theoretically characterized. This was due to the development of legislation on state and municipal service, which did not exist in the Soviet period. The development of legislation on administrative offenses, in turn, brought to life the idea of "administrative tort law." In theoretical and didactic terms, separating the designated "branches" of law is permissible. So, for a deeper study of normative material, as well as for mastering the theory of the relevant issue, special courses in administrative and legal orientation are created, such as "public service law" or "administrative responsibility." In this sense, the separation of the mentioned legal entities from administrative law can be supported—this does not destroy the branch of law, but on the contrary, helps to study it better and formulate new legal constructions. At one time, the phenomenon of administrative process was substantiated in the theory of administrative law, and the subject of administrative procedural law was determined. Thus, V.D. Sorokin broadly defined administrative procedural law, revealing it as "a set of procedural norms regulating various managerial relations" ^[25]. At the same time, the designated author spoke about the secondary nature of procedural norms of substantive administrative law.

Despite the importance of procedural norms in regulating administrative law, there is still no practical need to separate the administrative process (administrative procedural law) from the system of administrative law. The effectiveness of administrative law lies in the interrelation of its substantive and procedural norms. Procedural norms are also fundamental in the subject of police law, mainly because it is necessary for the application of direct administrative (police) coercion, as well as the implementation of measures of administrative responsibility.

As you know, "police law" at one time was the basis for the formation and development of administrative law, which, by its functionality, was designed to regulate managerial relations. For example, P.Y. Egorov stressed that "it is in the conditions of the rule of law that the science of administrative law arises" ^[26]. Forming the rule of law is a rather lengthy process, and in this state transformation, police law is far from last. In this regard, we agree with the conclusion that "the history of the last two centuries shows how, in most countries of the world, the police state has slowly but steadily transformed into a legal one, without losing police functions and determining the place of the police in the system of state power as a force subordinate to the law and acting in the interests of all citizens" ^[27].

It should be noted that this position is not shared by everyone. Thus, V.P. Malakhov pointed out "that a state where administrative law tends to a policeman is legal only in appearance. An indication of the legal nature of the state is a declaration, a clumsy (ineffective) way of legitimizing power. In its operation, police law reproduces the police state (or revives it); it reproduces the oppositional attitude of society toward the state and, therefore, leads to the destruction of modern democratic statehood or, which is only slightly better, to strengthen it at the expense of undemocratic means" ^[28].

One can also agree with this position—the fascination in legal regulation with imperative prescriptions, namely, prohibitions, restrictions, and the establishment of administrative responsibility for non-compliance with any legal ban, does not lead to any good. In this regard, it is necessary to balance the norms of positive administrative law with the protective norms of police law. This will be the effectiveness of the law as a whole.

Given the functionality of police law, we can say that this phenomenon is objectively necessary for the state, and it does not matter whether it is a democratic or monarchical state. In the history of our country, there was a period when the phenomenon of police law was not officially recognized; this category was hostile to the established ideology and legal doctrine. For example, in one of the landmark works of the “designer” of the science of Soviet administrative law, G.I. Petrov, there is not the slightest mention of police relations, as well as the areas where these relations arise. This conclusion is based on the analysis of the work of the presented author, in which he noted that “administrative, legal relations are classified by social content, by nature, place of their origin, territory of distribution, as well as by the ratio of the rights and obligations of their participants, the time of their duration, the nature of the facts generating them" ^[29].

As noted earlier, the Soviet administrative law doctrine officially rejected the existence of police law for ideological and political reasons. However, objective reality cannot be deceived. Therefore, one of the first Soviet textbooks on administrative law indicates the methods of police activity, which determine the essence of police law. It must be said that during the period of "late socialism," the science of administrative law went into the mainstream of legal management science, in which management issues were the priority, and the police component of administrative and legal regulation was practically not covered. This approach is explained by hostility towards the country's past, as well as the "bourgeois" content of police law. In reality, there was no opposition to police law, and its existence within administrative law would have been conditioned by the need to ensure public safety and protect citizens and society from various threats of a social, natural, and manufactured nature.

Let us note that in one of the first Soviet textbooks, published far from an ideologically simple time, there is a police component. Thus, S.S. Studenikin, V.A. Vlasov, and I.I. Evtihiev, in their textbook, drew attention to the police methods of legal influence, in particular on the issues of passport system, accounting for the natural movement of the population, licensing system; administrative supervision, as well as special legal regimes ^[30].

The word "police" in the Soviet legal doctrine was reactionary, but it still returned to legal circulation, first in theory and then in legislation. Thus, Yu.P. Solovey was the first to bring a category like "police law" back into legal circulation and also expressed the idea of codifying its norms ^[31].

In turn, K.S. Belsky defined the subject of police law; in particular, he noted that "the activities of the "police" as a system of executive authorities that protect public order through supervision and the application of administrative coercion measures are regulated by the norms of administrative law, collectively constituting its important sub-branch: police law" ^[32]. It should also be noted that in his work Police Law (2004), K.S. Belsky developed the doctrine of this area of legal regulation and defined the essence of police law as a phenomenon that considers the peculiarities of its impact. Despite this, research in the field of police law should be continued further to popularize this institution of administrative law, as well as to change the public stereotype of its relative essence.

Today, it can be noted that policing is not only coercion, permissive work, control, and supervision; this activity also concerns relations related to providing police services that citizens need not only to realize various civil rights. Police services ensure law and order and security allow monitoring of subjects who have applied for their receipt. As V.P. Malakhov noted, "Police law has a supervisory nature. Control and supervision are, from the standpoint of the logic of police law, the main forms of management of society" ^[33]. As for the police services mentioned above, this issue is resolved in the legislation as follows: Federal Law of February 7, 2011, "On the Police," determined that "the police provides public services" (Article 11).

In doctrinal terms, through the efforts of scientists, the term "police" "broke through" the right to exist; the current legislation also did not remain aloof from the ongoing social and political processes and phenomena. So, at one time, the Law of the Russian Federation of June 24, 1993, “On federal tax police bodies," was adopted; ten years later, the drug control police were created, and then the police in the system of the Ministry of Internal Affairs of Russia, today we can also talk about the work of the military police. Of course, police law does not need to be reduced to the work of the Ministry of Internal Affairs or Rosgvardiya; police law is a relatively wide range of legal norms that ensure the policing of various public authorities that use methods of administrative coercion, authorization, control (supervision), and take prohibitive and restrictive measures. Police work manifests itself in the fields of education, healthcare, sanitation, the work of the financial system, the operation of various modes of transport, as well as in the information sphere, etc.

In this regard, it seems wrong to reduce administrative law to the right of management. However, it can be noted that in the creation of a management system, there is a police component associated with the formation of the structure of police agencies; as for the concept we are considering, even in the conditions of a new democratic Russia, the attitude to the phenomenon of "police law" is relatively restrained. In the curricula, when considering the issue of the subject and the system of administrative law, there is no hint of "police law"; moreover, the term itself, in everyday understanding, is often identified with the police state and is associated with something very negative from the point of view of legal regulation. Indeed, the social and legal image of the police state leaves much to be desired. However, if you look at other states, both in the West (Germany, France, USA) and in the East (South Korea, Japan, Singapore), which have made significant progress in economic and social development, then these states have a powerful police system that has not hindered the development of these states both economically, so it is in the democratic sense. As K.S. Belsky noted, "The police state in the liberal literature is usually criticized for autocracy, arbitrariness, and abuse of power. However, an unbiased and objective view of the police state shows that without the functioning of such a state at a certain historical stage, the so-called rule of law state could not take place" ^[34].

This conclusion is based on the author's long-term observations, his intuition, and the logic of social and economic development. In this regard, it can be assumed that police law is an attribute of an effective rule of state law. With the help of the norms of police law, the legal regime of public security is ensured, and the protection of citizens' rights is carried out. Such protection is carried out by both positive and protective means of police law. One positive means of ensuring the rights of citizens is "police assistance." As defined in the Federal Law of February 7, 2011, "About the police," "The police immediately comes to the aid of everyone who needs its protection from criminal and other illegal encroachments" (Article 1). Note that the concept of "police assistance" remains undeveloped in doctrinal terms. Nevertheless, K.S. Belsky expressed his point of view on this issue. Thus, the designated author noted that "the method of police assistance is a way of protecting (ensuring) the rights of citizens, carried out by the police by providing certain social, medical, financial and other services at the request of a citizen, and in some cases without their consent" ^[35].

It follows from this that "police assistance" is a kind of state assistance that manifests the humanitarian meaning of the existence and functioning of the state. The modern state assists citizens in various forms. In particular, the system of providing "public services" is currently working quite effectively; the state offers social and household assistance, takes care of lonely and elderly citizens, etc. However, to consolidate the state's efforts, including in the police aspect, it would be suitable to adopt the law "On Police Assistance." Such a law would strengthen the state's police function, would help to change the established stereotype regarding police law and the police state, and would also add a humanitarian component to the content of police activity that is so necessary.

It should be noted that at present, the word "police" is identified exclusively with the work of the Ministry of Internal Affairs, in some cases with units of the Federal Service of the National Guard Troops. The word "police" has an ancient Greek origin and, for a long period, had a broader etymological meaning than what everyone is used to today. As N.N. Belyavsky wrote at the time, "The term 'police' is taken from the Greek language, where the police evoked the idea of the totality of state activities and state relations" ^[36]. As noted by I.A. Gorsheneva, "The essence of police activity and the definition of its content is unthinkable without studying the state, of which the police is a part" ^[37].

It is in this form that the concept of "police" was interpreted in the eighteenth century by the French thinker Delamare in his work, A Treatise on the Police. This multi-volume work predetermined the development of police science, as well as state and police activities on the European continent. Today, this position is also supported and developed; in particular, Yu.N. Starilov writes that "in the eighteenth century, the police was understood as the entire state administration within which police power was exercised" ^[38]. In other words, police law was a State law regulating the most important relations to ensure security. As I.T. Tarasov noted then, "Police law explores the conditions of safety and well-being" ^[39]. K.S. Belsky and A.A. Grishkovets also note that "police law is a set of norms regulating the activities of bodies and services that are entitled to apply direct administrative coercion and measures of administrative responsibility to protect the rights and freedoms of citizens, as well as the foundations of the state" ^[40].

V.P. Malakhov defines the subject of police law in a very original way. In particular, he writes that "police law in the most general form can be characterized as an administrative law turned on society. Police law is administrative law taken to extremes." At the same time, according to V.P. Malakhov, police law cannot be considered only as a negativity of the action of administrative law. The implementation of essential elements of police law has both positive and negative consequences for society" ^[41].

In conclusion, we emphasize that today, there is no reason to reject the protective and regulatory potential of police law as an integral part of administrative law. In contrast, the subject of implementing the norms of police law is all public authorities and management. In addition, the subjects of police law are citizens who, for example, are involved in measures to protect public order or citizens performing "police duties," in particular when registering motor vehicles and civilian weapons, when paying an administrative fine, etc.

Thus, it can be concluded that police law is, on the one hand, an element of administrative law; on the other hand, it tends to have a certain autonomy due to the subject and object of legal regulation, as well as the method of legal influence. In this regard, it can be concluded that the subject of police law is a set of legal norms designed to regulate public relations that develop in connection with the protection of citizens' rights, as well as ensuring public safety and protecting public order through the use of coercive and positive legal means.

Actual problems of the law of administrative justice

The issue of the law of administrative justice is, in fact, a problem concerning the protection of the rights of citizens involved in the sphere of administrative and legal reality, as well as the issue of procedural and organizational provision of such protection. Unfortunately, in every society and under any law and order, situations arise of a direct or indirect nature when the rights of a citizen are violated or unlawfully restricted by the action or inaction of an official or duties are imposed on a citizen that should not be imposed on them. This situation should not exist, and if it has happened, it is necessary to work with it. The problem of protection of citizens' rights is one of the tasks of administrative law, which is solved, including through the "law of administrative justice." In this sense, we agree with M.D. Zagryatskov, who noted, "We consider administrative justice to be one of the institutions that ensure the rule of law" ^[42]. A.I. Elistratov stressed that "administrative justice is a legal guarantee for citizens as a way of appealing administrative acts" ^[43].

The law of administrative justice has been formed in the system of administrative law evolutionarily as a reaction to the fact that an official carrying out managerial or police activities, unfortunately, is very often prone to abuse of power in relation to a citizen, and such abuse must be resisted through the right of complaint, as well as the right to appeal against the actions or omissions of the relevant official. In this regard, K.S. Belsky correctly noted that "the law of administrative justice constructively contains the institution of a complaint and an administrative claim, as well as proceedings on a complaint and an administrative claim" ^[44]. In this approach, it can be seen that constructively, the "law of administrative justice" includes both administrative and judicial components. This position was held by many representatives of the "old school." Thus, V.I. Remnev wrote that "a reasonable combination of judicial and administrative procedures for resolving complaints makes it possible to solve the problem of division of labor, exercise mutual control between various state bodies, strengthen the rule of law, and also ensure the protection and protection of citizens' rights" ^[45].

It should be noted that administrative justice is connected with the subjective public right of a citizen, namely, the right of complaint or the right of appeal. The main right of complaint is the Federal Law of March 2, 2006, "On the procedure for considering appeals of citizens of the Russian Federation." According to this law, a "complaint is a request of a citizen for the restoration or protection of their violated rights, freedoms or legitimate interests or the rights, freedoms or legitimate interests of other persons" (Article 4). The provision of the law on the fact that the complaint is a citizen's request does not seem to be entirely correct. The complaint in its content, the basis, and the emotional background of its submission is most likely not a request but a demand. In this regard, I.Sh. Kilyaskhanov correctly noted at the time that "a complaint is an indication of an actual or alleged violation of a citizen's rights by the governing bodies and their officials, as well as a demand for their restoration and a solution to the issue of the responsibility of the perpetrators" ^[46].

As it seems, this approach largely reflects the nature of the complaint the essence of the appeal, as elements of the law of administrative justice. Both the right of objection and the right of appeal are universal. However, abuse of this right is also not permissible. It is necessary to agree with Yu.M. Kozlov, who noted many years ago that "the democratism of the institute of the law of complaint is manifested in the absence of any restrictions on the range of actions of public administration bodies (officials) that can be appealed" ^[47]. This is precisely the essence of administrative justice, implemented in a pre-trial form.

In some cases, administrative justice is identified with the work of an administrative court or other structure performing the functions of dispute resolution (conflict). In particular, a system of administrative tribunals has been formed in France, a State Council has been established, and their subject functionality as subjects of administrative justice has been determined ^[48]. In the domestic doctrine, there is also an opinion about a specialized understanding of the law of administrative justice. Thus, Yu.N. Starilov understands the Institute of Administrative Justice quite narrowly. The designated author writes that "administrative justice as a legal entity in the system of administrative law is an administrative and judicial law of claim" ^[49].

This approach seems pro-Western, where the court has traditionally been of great importance in the legal system. It should be noted that Yu.N. Starilov's approach takes the subject of administrative justice beyond the boundaries of administrative law and makes it an intersectoral legal entity. It should also be noted that the term "claim" does not directly relate to classical administrative law, yet this term is somewhat related to civil procedure. If we do not find fault with the category of "justice" and, thereby, carry out a broad interpretation of such a definition as "administrative justice," then it should be understood as administrative proceedings, complaints proceedings, and proceedings on administrative offenses, which are carried out in courts. B.V. Rossinsky expressed the provision that the proceedings on administrative offenses relate to administrative proceedings. Thus, this author, based on the analysis of the competence of administrative courts, wrote that "it seems appropriate to include some categories of cases of administrative offenses in the competence of administrative courts, whose judges will specialize both in certain areas of administrative legislation and the activities of subjects of administrative offenses" ^[50].

The law of administrative justice, with its procedural and organizational properties, ensures the protection of citizens' rights. But functionally, this institution can also solve other social problems. In this regard, we can agree with V.V. Boytsova and V.Ya. Boytsova, who noted that "administrative justice, undoubtedly, in addition to the function of ensuring the rights of citizens, can make a certain contribution to the fight against corruption in the public service" ^[51].

The protection and protection of citizens' rights is one of the key tasks of law, as well as law enforcement activities. As V.A. Yusupov wrote at the time, "Influencing the economy, the state puts the rights and freedoms of citizens in first place in the field of administrative and legal regulation. Ensuring human rights is the most important function of the entire system of organs of the rule of law" ^[52]. However, it does not explore idealizing objective reality, as well as forming inflated expectations from the work of the protective and protective institutions of the state. There are many problems in their activities for protecting and protecting citizens' rights. In this case, citizens must have independent organizational and procedural capabilities to resist this. Therefore, it is no coincidence that in a legal and democratic state, these opportunities are provided to citizens. For example, the Federal Law of February 7, 2011, “About the police," defines that "actions (inaction) police officers who violate the rights and legitimate interests of a citizen may be appealed to a higher authority or a higher official, to the prosecutor's office or the court" (Article 53).

It should be noted that citizens often go to court with complaints about the actions of police officers who unlawfully restrict and thereby violate the rights of citizens. Abstracting from the political background of the issue, let us pay attention to the situation of citizen V.I. Sergeenko, whose right to carry out a single picket (Article 31 of the Constitution of the Russian Federation) was violated by the actions of police officers, which was stated by the Constitutional Court of the Russian Federation in its resolution No. 8-P dated March 17, 2017 "On the case of checking the constitutionality of the provision paragraph 13 of part 1 of Article 13 of the Federal Law "On the Police" in connection with the complaint of citizen V.I. Sergienko." V.I. Sergeenko appealed the actions of police officers in courts of various levels, but did not achieve the result of restoring his rights. As follows from the case file, "Citizen V.I. Sergienko on May 1, 2015, at 15.00 began a single picket, which police officers demanded to stop at 15.25—at 15.40 police officers forcibly escorted the applicant to the police department, where he was taken at 15.55 and where a protocol was drawn up on his delivery. At 16.50 V.I., Sergienko was released from the police department without drawing up a protocol on an administrative offense or bringing any charges against him. The decision of the Oktyabrsky District Court of Belgorod of February 4, 2016, left unchanged by the appeal ruling of the Belgorod Regional Court of April 28, 2016, in satisfying the requirements of V.I. Sergienko, "On recognizing as illegal the actions of police officers to stop a single picket held by him by delivering him to the premises of the police department, keeping him in it, as well as compensation for non-pecuniary damage in connection with these actions was refused."

"Leaving V.I. Sergienko's claims without satisfaction, the courts proceeded from the fact that further holding of single picketing by him could provoke illegal actions against him by persons who do not share his views and pose a threat to the safety of citizens. In their decisions, the courts indicated that when the applicant conducted a single picket, a real threat to his life and health was brewing, the possibility of reprisals against him, and it was to eliminate such a threat that he was taken to the premises of the police department. The Constitutional Court of the Russian Federation, in its decision No. 8-P dated March 17, 2017, "On the case of checking the constitutionality of the provision of paragraph 13 of Part 1 of Article 13 of the Federal Law "On Police" in connection with the complaint of citizen V.I. Sergienko," recognized the article of the law "On Police" as constitutional. However, he pointed out that "the use of detention by the police against citizens conducting solitary picketing, in the obvious absence of grounds for its use, can be regarded as an unlawful restriction of constitutional rights to freedom and personal inviolability and to hold public events."

This court decision is very indicative. Currently, citizens, in some cases, face facts of excessive administrative influence implemented in various forms, which, of course, does not contribute to the protection of their rights, as well as the realization of various civil liberties. It has already been noted that the work of law enforcement agencies should not be idealized. Therefore, citizens should be allowed to protect their rights and freedoms independently. Attention has already been drawn to this provision in the scientific literature, but this idea has not lost its relevance. Thus, the previously quoted I.S. Kilyaskhanov proposed the practicality of creating an "institute of necessary protection" in administrative law. The essence of this idea is to enrich the legal status of a citizen with additional powers so it would be possible to protect their rights and freedoms without involving state authorities in the human rights process ^[53].

There are already elements of self-defense in the law. Thus, the Civil Code of the Russian Federation provides for self-defense of civil rights. As follows from this Code, "Self-defense of civil rights is allowed. The methods of self-defense must be proportionate to the violation and not go beyond the actions necessary to prevent it" (Article 14). For self-protection of labor rights, an employee, having notified the employer or his direct supervisor in writing, may refuse to perform work not provided for in the employment contract (Article 379 of the Labor Code of the Russian Federation). Self-defense is quite an "interesting" legal tool; it may well be used in the field of administrative and legal regulation and complement the existing administrative and legal means of protecting the rights and legitimate interests of citizens. We emphasize that today, one of the main subjects ensuring the protection of citizens' rights in public relations is the court or the institute of pre-trial appeal.

The right of administrative justice from the point of view of the protection and protection of citizens' rights can be considered an absolute right, access to which should not be restricted, including by law. If we identify administrative justice with justice in administrative cases, then access to this justice should be free. This is the constitutional and legal meaning and purpose of the legal institution we are considering. And therefore, it is impossible to agree with the position of The Federal Law of July 31, 2020, "On State Control (Supervision) and Municipal Control in the Russian Federation," which determined that "judicial appeal of decisions of the control (supervisory) body, actions (inaction) of its officials is possible only after their pre-trial appeal" (Article 9). It seems that the pre-trial form of appeal (protection) should be optional if the party considers the form of pre-trial protection to be more effective for itself, choosing it. If he considers this form unacceptable, then the relevant person should be able to immediately, without wasting time, apply to the court to protect his rights and legitimate interests. And, thereby, to protect their rights, including through administrative proceedings.

Various legal forms of protection of citizens' rights and freedoms should complement each other and, to some extent, "compete" with each other regarding their protective effectiveness. As A.I. Stolmakov noted, "The problem of the correlation of administrative and judicial methods of ensuring legality is not to oppose them to each other, but to use them correctly based on both of these methods, given that both of these methods are means of protecting and protecting the rights of citizens" ^[54].

The dispute about which method of protecting the rights and freedoms of citizens in administrative legal relations is more effective, administrative or judicial, as it seems to us, is devoid of practical meaning. Effective is the method that, in a specific, private situation, allows you to restore the violated right of a citizen to ensure legality and law and order. The choice of the method and form of protection is determined by the citizen himself, whose rights and legitimate interests are violated by the action or inaction of officials of state authorities and management. In this regard, one cannot agree with V.M. Savitsky, who noted that "it has long been known that judicial proceedings have huge advantages over resolving a dispute administratively" ^[55].

This thesis was formulated at a time when there was a certain legal "romanticism" in the minds of people, the judicial system was being reformed in the country, the world justice was being recreated, the judges of the Constitutional Court wrote their dissenting opinions on the subject of the judicial dispute on the pages of the Rossiyskaya Gazeta. At that time, attempts were made to democratize society, as well as the law enforcement and judicial system; laws were then adopted in an atmosphere of political competition, which affected their legal quality and regulatory potential. Thus, at one time, the Law of the Russian Federation of April 27, 1993, "On appeal to the court of actions and decisions violating the rights and freedoms of citizens," ensured the variability of legal protection of citizens' rights.

This law stipulated that "a citizen has the right to file a complaint against actions (decisions) violating his rights and freedoms, either directly to the court or a higher-ranking state body, local government body, institution, enterprise or association, public association, official, public servant" (art. 4). The indicated order comprehensively ensured the realization of the right of citizens to access justice, as well as the realization of the right of complaint.

It should be noted that many ideas of the nineteen nineties regarding the court's role in the administration of justice, ensuring law and order, and protecting the rights and freedoms of citizens have not been fully implemented. The assessment of the role of the court in the modern state and society was carried out in our country some time ago through an analysis of the activities of the European Court of Human Rights (ECHR), as well as the work of courts in several Western European countries, where the institute of administrative justice was formed, including. Attention was drawn to the specialization of courts that resolve public law disputes. It should be noted that a relatively detailed judicial system has been formed in Germany, in which there are administrative courts, social courts, courts resolving labor and financial disputes, etc. ^[56]

Such differentiation within the judicial system is a guarantee of the legality of the consideration of a legal dispute in the relevant court. However, not every State can afford such an approach in the organization of the judiciary. In our country, the idea of administrative proceedings, which was very actively discussed in science, was still implemented. So, currently, the Code of Administrative Procedure of the Russian Federation of March 8, 2015, defines that "courts consider and resolve administrative cases on the protection of violated or disputed rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations that arise from administrative and other public legal relations" (Article 1). As follows from the CAS, it does not apply to proceedings on administrative offenses. At the same time, it should be noted that the role of the court in considering administrative violations and the imposition of administrative penalties, as well as the consideration of complaints against decisions on cases of administrative offenses, is quite significant. Thus, at present, the court is meaningfully involved in applying the substantive and procedural norms of administrative law contained in the Administrative Code of the Russian Federation. In contrast, the court performs various functions related to applying administrative punishment and the protection of the rights of relevant subjects.

As O.V. Pankova noted, "Justice in administrative cases and justice in cases of administrative offenses are different concepts. They are based on different types of administrative-jurisdictional cases caused by different types of administrative-legal conflict—administrative-legal dispute and administrative offense" ^[57]. We emphasize that O.V. Pankova does not consider the consideration of cases of administrative offenses in courts to be administrative justice. At the same time, the cited author believes that the court's consideration of cases of administrative offenses is justice (p.14). Yu.N. Starilov also noted that "administrative justice is a special type of justice aimed at the activities of the police and administration, at resolving a dispute about public administrative law. The State, with the help of administrative justice, ensures that the truth of the case is clarified by the procedural procedure established by law, providing "positive services" to specific persons" ^[58].

As it seems, this approach is at least ambiguous. Administrative justice is a fairly broad category that constructively includes the work of the court and other authorities and management bodies that resolve administrative disputes and consider complaints. As we have noted earlier, the consideration by the court of cases of administrative offenses and the imposition of administrative penalties, as well as the resolution of complaints against decisions in cases of administrative violations, in our opinion, is one of the forms of administrative justice.

In conclusion, we note that the law of administrative justice includes both a judicial element and an administrative component, which are related to the protection and protection of the rights and legitimate interests of citizens, as well as economic entities. The right of administrative justice is absolute, fixing the necessary procedural forms of protection of the subjects interested in this.

As a result, we note that the problem of the subject of administrative law is a multifaceted issue that cannot be solved within the framework of a single study.

However, it is very important to pay attention to the methodological foundations of the branch of law to make an "inventory" of normative material to identify new aspects of legal regulation and exclude old ones that do not meet modern social and economic realities.

The subject of administrative law is rather diverse social relations that develop in particular in the field of public administration or general in the field of public administration. These relations are horizontal and vertical in nature; these are the most diverse intra-management relations of interaction and coordination. It should be noted that these relations are not only internal but also external; they are associated with implementing the functions of the relevant management structures. The relations connected with the civil service are relatively large-scale and of a very different nature, as well as relations conditioned by the rule-making activities of a subordinate nature. Thus, the management component occupies one of the key places in administrative law; public administration cannot exist without regulating this industry.

However, administrative law should not be reduced to administrative relations only; despite the importance and scale of such relations, the specifics of social relations of the studied branch of law are much "richer"; therefore, objectively, there are protective police relations. The police component of administrative law is very bright and informative; police law in the old days formed the basis for the formation of a holistic view of the subject of administrative law; however, unfortunately, this right has been forgotten for more than seventy years. However, objective reality forced us to turn to the component of the subject of administrative law. Moreover, the term "police" itself appeared in the legislation. Note that the term "police" originally had a different semantic meaning than the one it has now. Initially, police law is the law of cities, but over time, the terms change their semantic meaning; this is due to a language change, as well as the development of the regulatory framework in which the corresponding category is used. Police law is not the law of the Ministry of Internal Affairs or any other militarized structure; it is a system of norms and subjects functionally designed to ensure public safety and the protection of public order using coercive and positive legal means. Thus, only the organic "addition" of management and police law makes it possible to form such a phenomenon as administrative law.

We emphasize that managerial relations sometimes closely overlap with police relations; in particular, we can discuss police management. Policing without a management component is devoid of meaning and functionality. In the course of management and policing, various kinds of conflicts and violations arise, including violations of the rights of citizens as well as economic entities. In this regard, a system of norms and procedures is needed, which is designed to ensure the protection of citizens' rights. Proceeding from this, the Institute of Administrative Justice appeared, within the framework of which judicial and non-judicial mechanisms for the protection and protection of citizens' rights were created. Thus, "inside" administrative law, we can talk about such an institution as "the law of administrative justice." Based on this position, a fairly coherent system of administrative law norms is being built, which creates an integral legal education concerning all key aspects of social and managerial reality.

Within the system of administrative law, the norms of management law and the norms of police law are harmoniously combined; this is seen in the example of the implementation of administrative and police coercion and police supervision. The police component within administrative law is sometimes called negative law. Still, one should not radically look at the phenomenon of police law, that is, identify it with the police state. Police law may be an effective attribute of a democratic, legal, and social state. This position is proved by the experience of state-building in a number of countries. Thus, administrative law is designed to improve the efficiency of the state in a variety of aspects to create adequate forms and methods of administrative and police work, both in ordinary and in crisis situations.