行政协议作为公共治理体系的一个组成部分

O. Milienko
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引用次数: 1

摘要

本文的目的在于体现行政合同作为公共行政工具体系组成部分的特点。确定公共行政机关执行职能的工具系统必须满足解决管理任务的效率、执行管理决定的机动性、行政程序的可及性以及规章和行政行为的公开性等要求。公共行政工具系统包括公共当局和地方政府的决定、行动或不作为,这些决定、行动或不作为对个人具有根本的法律意义和后果。它强调,“善治”概念的实施必须符合建设法治的民主原则,实现法治需要使用现行立法所规定的工具系统。公共行政工具系统的组成部分包括规章(实际上等同于规章)、行政行为、行政协议、行政行为和行为计划。确定了行政协议的规范性法律性质,在一定程度上将其等同于权力主体的规范性行为,强调了这种关系的双边和多边性质。事实证明,行政合同具有与其他公共行政文书类似的特点,特别是需要按照既定程序缔结行政合同,目的是满足主观公共权利,等等。确立了行政协议的显著特征是其采纳的自愿性、公共关系调节的双边性和多边性,以及协议的一方始终是权力主体。认为行政合同关系在履行过程中存在当事人法律平等的情况,因此保证其履行的机制具有特殊性。认为行政协议是一种公共加入协议,其内容是履行与提供公共服务相关的管理职能。确保公共财产之间的有效使用是由权力主体主动发起的一个非政府实体。事实证明,在目前情况下,为了确保立法的可用性,并避免紧急积累一系列法规的情况,建议以以下条款补充乌克兰《行政程序法》草案:行政合同执行与提供公共服务有关的管理职能,确保公共财产的有效使用,由权力主体在非政府实体的倡议下缔结。
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Administrative agreement as a component of the system of public governance tools
: Th e purpose of the article is to implement the characteristics of the administrative contract as a component of the system of public administration tools. It is determined that the system of tools for the implementation of functions by public administration bodies must meet the requirements of effi ciency of settlement of management tasks, mobility of implementation of management decisions, accessibility of administrative procedures, and openness of regulations and administrative acts. Th e system of tools of public administration includes decisions, actions or omissions of public authorities and local governments, which have fundamen-tal legal signifi cance and consequences for individuals. It is emphasized that the implementation of the concept of «good governance» must comply with the democratic principles of building the rule of law, the achievement of which requires the use of the system of tools defi ned by current legislation. Th e components of the system of public administration tools include bylaws (actually identifying them with regulations), administrative acts, administrative agreements, administrative acts and acts-plans. Th e normative-legal character of the administrative agreement is determined, which to some extent identifi es it with the normative acts of the subjects of power, emphasizing the bilateral and multilateral nature of such relations. It is substantiated that administrative contracts have similar features that are similar to other instruments of public administration, in particular, the need to conclude them in accordance with the established procedure, aimed at satisfying subjective public rights, and so on. It is established that the distinctive features of an administrative agreement are its voluntary nature of adoption, bilateral and multilateral nature of the regulation of public relations, and one of the parties to the agreement is always the subject of power. It is concluded that in the implementation of administra-tive-contractual relations there is a situation of legal equality of its parties, so the mechanism for ensuring its implementation is specifi c. It is concluded that an administrative agreement is a public accession agreement, the content of which is the implementation of management functions related to the provision of public services, ensuring the effi cient use of public property between the subject of power at the initiative of a non-governmental entity. It is substantiated that in the current conditions in order to ensure the availability of legislation, as well as to avoid the situation of emergency accumulation of an array of regulations, it is proposed to supplement the draft Law of Ukraine «On Administrative Procedure» with the following provisions: «administrative contract implementation of management functions related to the provision of public services, ensuring the effi cient use of public property, concluded between the subject of power at the initiative of a non-governmental entity.
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