AL-FARABI KAZAKH NATIONAL UNIVERSITY FACULTY OF LAW
DEPARTMENT OF THEORY AND HISTORY OF THE SТATE AND LAW, CONSTITUTIONAL AND ADMINISTRATIVE LAW
DIGEST OF ARTICLES
International scientific-theoretical conference of students and undergraduates
«ACTUAL PROBLEMS OF ADMINISTRATIVE LAW AND PROCEDURE: THEORY AND PRACTICE OF REGULATION»
VIENNA, AUSTRIA 2016 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
УДК 342 (063) ББК 67.400 М 44
Editorial team: Useinova G.R., Ospanova D.A., Kusainov D.O.
«Actual problems of administrative law and procedure: theory and practice of regulation». Proceedings of the 1st International scientific-theoretical conference of students and undergraduates. «East West» Association for Advanced Studies and Higher Education GmbH. Vienna. 2016. – 151 p.
Abstract: In October 2016 the International scientific-theoretical conference for undergraduate and graduate students on the theme "Actual problems of administrative law and process: the theory and practice of regulation", dedicated to the 25th anniversary of the Independence Day of the Republic of Kazakhstan. The conference was organized by the Department of Theory and History of State and Law, Constitutional and Administrative Law at Kazakh National University. Al-Farabi Kazakh National University, together with the legal institutions of higher education of the CIS countries. Scientific issues of the conference included the following issues: the systematization of administrative law, the problem of administrative legal proceedings and administrative proceedings; management process and other regulatory matters of administrative law; legal problems of administrative enforcement and liability. The conference heard and discussed reports and scientific reports doctoral students, undergraduates and students. Conference Organization awarded high ratings high schools participating. The conference issued a collection of reports and speeches of the conference participants.
ISBN 978-3-903115-64-4 УДК 342 (063) ББК 67.400
Typeset in Berling by Ziegler Buchdruckerei, Linz, Austria. Printed by "East West" Association for Advanced Studies and Higher Education GmbH, Vienna, Austria on acid-free paper. Am Gestade 1, 1010 Vienna, Austria [email protected], www.ew-a.org
© Composite authors, 2016 © "East West" Association for Advances Studies and Higher Education GmbH, 2016
2 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
About creation and development of department of the theory and history of state and law, constitutional and administrative law of the al-Farabi Kazakh national university
The department of the theory and history of state and law, constitutional and administrative law has been formed in 2011 for implementation of the Development strategy of Al-Farabi Kazakh National University. The basis of department was made by department of the theory and history of state and law and the department of the constitutional and administrative law having rich history and traditions. The department of the theory and history of state and law has rich history, it was created in 1938 with formation of the Almaty State Legal Institute (ASLI). Associate professor N. I. Kondratyeva was the first head of the department. The structure of department was provided by five teachers. In the forties the XX centuries worked at department the famous scientists, such as the academician S. V. Yushkov; professors A. H. Stalgevich, S. L. Fuchs; PhD in Law, associate professors Dyukov L. V., Kulteleev T. M. Akademik S. V. Yushkov and professor S. L. Fuchs played a big role in formation of legal education in Kazakhstan. In April, 1940 Candidate of Law Sciences, associate professor Tair Muldagaliyevich Kulteleev became the director of AGYuI, laid the foundation in expansion of scientific research in the field of the state and the right, was one of organizers of legal science and legal education in Kazakhstan. From 1945 to 1950 associate professor Leonid Vasilyevich Dyukov managed department. He is an author more than 50 published works, the coauthor of a number of textbooks and education guidances on history of political and legal doctrines, history of state and law of the USSR, history of state and law of Kazakhstan. Since 1960 Aspasia Zhakipowna Zhakipowa directed department. The sphere of scientific interests of A. Zh. Zhakipova concerned a research of the family and marriage relations in the Kazakh common law. Since 1965 Candidate of Law Sciences, associate professor Aydarat Nurekelevich Taukelev managed department. He was the acknowledged scientist in the field of history of political and legal doctrines, his versatile knowledge in all fields of jurisprudence got to it the deserved respect among all lawyers of Kazakhstan. Since the beginning of the 50th years of the XX century the academician NAN RK, д.ю.н works at department., professor Sultan Sartayevich Sartayev. In 1990 he was a member of the Working commission of representatives of the USSR for preparation of the updated Allied agreement from the Kazakh SSR, was one of the chief authors of the Declaration on the sovereignty of the Kazakh SSR (25 Oct. 1990); Law "About Organization of a Post of the President of the Kazakh SSR" (1990); Constitutional law "About the State Independence of the Republic of Kazakhstan" (16 Dec. 1991); Law on nationality of RK (20 Dec. 1991); one of authors of the first Constitution of the sovereign Republic of Kazakhstan
3 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
(1993), the commission chairman on creation of the bill on languages of the republic and the Concept on language policy. In 1990 S. S. Sartayev was appointed the member first and the unique Presidential Council in the republic. As the statesman it one of the first brought up a question of the status of national language. S. S. Sartayev was elected the deputy of 12 and 13 convocations of the Supreme Council of the Republic of Kazakhstan. And still Sultan Sartayevich remains is faithful to legal education and law department of Al- Farabi Kazakh National University where he works more than 50 years. From 1994 to 1997 the department was headed by PhD in Law, associate professor Evgeny Igorevich Voytsekhovsky. He is an acknowledged specialist in the field of general history of state and law, the circle of its scientific interests is extremely extensive. From May, 1997 to September, 2008 professor Alua Salamatovna Ibrayeva directed department д.ю.н. A. S. Ibrayeva is an author more than 100 scientific works, among them there is a textbook in a state language "Memleket to the zhena құқ ы қ teoriyasa" (Astana, 2006), the education guidance "Theory of the State and Right" (Almaty, 2001, 2003, 2006); monograph "Legal culture of Kazakhstan: forming problems, development factors" (Almaty, 2004); dictionaries of legal terms in the Russian and Kazakh languages, etc. Since September, 2008 the candidate of historical sciences, professor Victor Vasilyevich Nezdemkovsky managed department. He is a specialist in the field of history of state and law of foreign countries, conducts classes in the subject "History of State and Law of Foreign Countries". At different times such famous scientists as NAN RK'S academicians, д.ю.н, professors S.Z. Zimanov, M. T. Baymakhanov, S. N. Sabikenov, G. S. Sapargaliyev worked at department; д.ю.н., professors Z. Zh. Kenzhaliyev, E. K. Nurpeisov. The department of the Constitutional and administrative law has rich history and traditions. It was founded in 1958 based on the former Almaty legal institute and was called department of State law and the Soviet construction. The doctor of jurisprudence, professor Kotov Konstantin Flegontovich was the first head of the department. From 1958 to 1982 managed department of state law and the Soviet construction. In 1962 defended the doctoral dissertation on a subject: "Essence of local national autonomy in People's Republic of China: the main problems of the theory and practice of a national construction in the People's Republic of China on the example of the Xinjiang-Uigur autonomous region in 1949-1957". During 1962-1965 the doctor of jurisprudence, professor Belson Yakov Mikhaylovich who graduated from the Leningrad legal Institute of Kalinin (1945-1950) managed department. The doctoral dissertation on a subject: "The main problems of state and legal science of Great Britain and the USA" it is protected in 1962 in Moscow. It published more than 100 scientific works. Since 1982 the doctor of jurisprudence, professor Kim Vladimir Aleksandrovich directed department. In 1952 completed postgraduate studies at
4 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Institute of the state and the right in Academy of Sciences of the USSR with protection of the master's thesis on the subject "Political System of DPRK". From 1952 to February, 1957 KAZSSR worked as the senior research associate of sector of philosophy and the right of AN. And from March, 1957 to July, 1970 the head of department the gosudarstvovedcheskikh of sciences of Institute of philosophy and the right of AN KazSSR. In 1963 defended the doctoral dissertation on the published book "Role of the People's Democratic State and the Right in Socialist Transformation of Agricultural Industry" (on the example of DPRK) at Institute of the state and right of Academy of Sciences of the USSR (Moscow). In 1964 VAK USSR gave the rank of professor. Since 1970 it is appointed to a position of the deputy chief of the Karaganda higher school of militia of the Ministry of Internal Affairs of the USSR where to it the colonelcy was given. Since 1982 began to manage department of the state (constitutional) law at the Kazakh state university of S. M. Kirov where worked for 1999. In 1996 the doctor of jurisprudence, professor Kim V. A. it is elected the full member of academy of the humanities of RK and the foreign member of the Russian Academy of Natural Sciences. In 1995 within a year Candidate of Law Sciences, associate professor Mamonov Vladimir Vasilyevich managed department. From 1999 to 2001 Candidate of Law Sciences, associate professor Akhmetov Mizami Mustakhimovich was the head of the department. Akhmetov M. M. in 1981 graduated from law department of KAZGU. In 1999 defended the master's thesis on the subject "Forming of the Executive Authority in the conditions of Modern Democratization of Society". From 2001 to 2002 the doctor of jurisprudence, professor Maulenov Kasym Syrbayevich directed department. Maulenov K. S. graduated from law department of KAZGU of S. M. Kirov in 1977. On June 24, 1983 defended the master's thesis on a subject: "Legal support of quality of capital construction (civil aspect)" at the Kharkiv legal institute. 26th 2001 defended the doctoral dissertation on a subject: "Public administration and legal regulation in the sphere of foreign investments in the Republic of Kazakhstan" in KazGYuU Almaty. From 2002 to 2011 the doctor of jurisprudence, professor Kenzhaliyev Zaylagi Zhantuganovich directed department. The working life began at Institute of the state and right of AN of RK as the junior researcher. Then he held positions of the research associate, senior research associate, head of department, the deputy director on science of this institute. From 1995 to 1997 worked as the first vice rector of the Kazakh Academic University. In development and formation of department as professors and teachers participated known not only in the republic, but also it is far beyond its limits scientists with a world name. Among them, such professors as S. N. Savitsky one of the leading scientists-administrativistov who took part in development of the Code of the Kazakh SSR about administrative offenses, Lepeshkin A. I., Imashev T. M., Zusman, Shopin V. D., Malyshev Yu.E., Shilov M. V., Binder
5 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
M. A., Sartayev S. S., Kopabayev O. K., Malinovsky V. A., K.A Colpakov, Sagindykova A. N. During this period the department of the theory and history of state and law, constitutional and administrative law is headed by the doctor of jurisprudence, professor Useinova Gulnara Rakhimzhanovna. The numerous basic and grant researches conducted by the faculty of department allow to involve actively undergraduates and doctoral candidates of PhD in scientific work. The organization and creation of scientific circles and clubs allows to cooperate with students closely. It is important to note that to the most active students grants are appointed. The main directions of research work of department for many years are studying of problems of formation of the Kazakhstan statehood, the theory of the state and the right, history of state and law, history of legal and political doctrines, studying of problems of formation and development of the constitutional and administrative law, studying of problems of formation and development of constitutional right of foreign countries, a research of problems of development of international law in Kazakhstan, studying of problems of providing and protection of the rights and freedoms of the person and citizen, participation in development and the solution of problems of the theory and practice of real interaction of executive and representative bodies. As a result of researches a number of monographs, more than two hundred brochures are written and published. Some offers of department have found real reflection in activity of the central executive authorities. The department of the theory and history of state and law, constitutional and administrative law maintains close contact with the Russian Peoples' Friendship University, the Kyrgyz state national university, the Tashkent state university, the Moscow university of Lomonosov, the Dagestan state university. The department supports scientific communications with SOROS Fund Kazakhstan, the TASIS European program, develops a cooperation with the Central European university (Budapest, Hungary), University of Tartu (Estonia), with D. Diderot's University (France, Paris).
Ospanova D. A. Candidate of Law Sciences, associate professor of the theory and history of state and law, constitutional and administrative law of law department al-Farabi KazNU
6 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
OSPANOVA D. A. Candidate of Law Sciences, associate professor of the theory and history of state and law, constitutional and administrative law al-Farabi Kazakh National university
TENDENCIES OF DEVELOPMENT OF THE MODERN ADMINISTRATIVE LEGISLATION IN THE REPUBLIC OF KAZAKHSTAN
In the conditions of the continuing administrative and legal reforms the greatest relevance is acquired by processes of upgrade of the administrative and delictual legislation of the Republic of Kazakhstan regulating administrative and delictual types of the public relations which are formed as a result of perfect administrative offenses and involvement of the offender to the administrative responsibility or releases of the person which made an administrative offense from the administrative responsibility and administrative punishment. Reforming of the administrative legislation is caused by certain difficulties in practice of law-enforcement activities of the modern period of development as imperfection of the existing administrative legislation generated uncertainty on a number of questions. For example, rather legal nature of the sanctions provided in various laws, presidential decrees, the orders of the Government of the Republic of Kazakhstan, and also an order of their application that, eventually, negatively affected protection of the rights and freedoms of the person and citizen, the organizations in the administrative and delictual relations. Considering the social and economic and political transformations happening in Kazakhstan this period of development where the main idea of activities of state bodies was creation in the Republic of Kazakhstan of the constitutional and democratic state founded on market economy it is necessary to specify that in the Republic of Kazakhstan the attempt of strict implementation of rules that borders of state regulation of the developing administrative and delictual relations shall be determined strictly by a legal framework and the legislation which aim at a problem of the maximum ensuring the principle of a priority of the rights and freedoms of the person was performed. Also rules that the most admissible borders of intervention of the state in functioning of the market relations are determined by usefulness of this regulation for formation and functioning of new types of vlasteotnosheniye and all system of a new state system were considered. In the context of reforming of the administrative and delictual legislation which main regulation the Code of Administrative Offences shall be noticeable lagging in its development was observed that it was connected, first of all, with difficulties of a transition period. At the same time it is necessary to specify that measures of administrative and legal coercion protect not only regulations of the administrative right, but also the regulations relating to other industries of the right.
7 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
At the same time, characteristic feature of this period was also that in all spheres of the Kazakhstan legislation codification of regulatory legal acts which result was an adoption of new industry codes of the Republic of Kazakhstan was performed: civil, criminal, civil procedural, criminal procedure, criminal and executive, etc. However the Code of the Kazakh SSR about administrative offenses of 1984 with the corresponding additions and changes which followed from content, specifics and essence of the created market relations worked in the sphere of the administrative right till January 30, 2001 in Kazakhstan. Adoption of the Code of the Republic of Kazakhstan about administrative offenses of January 30, 2001 allowed to affirm as opinion that the administrative and delictual legislation determining the bases, measures and an order of implementation of measures of institute of the administrative responsibility came to a new stage of the development. Adoption of the Code of the Republic of Kazakhstan about administrative offenses of May 14, 2015 became a significant event not only for the administrative and delictual legislation, but for all administrative right of Kazakhstan in general. Eloquently demonstrated the fact of implementation of its second codification which allowed to bring a considerable standard array of the administrative and delictual legislation into accord not only with the Constitution of the Republic of Kazakhstan, but also with modern social and economic realities of the country to it. It is necessary to pay special attention on the fact that the Code of the Republic of Kazakhstan about administrative offenses of 2015 not only on the amount, but also on the content strikingly differs from the Code of Administrative Offences of January 30, 2001. So, in the modern administrative and delictual legislation qualitatively new approaches to a legal regulation of regularities of implementation of institute of the administrative responsibility which regularities are determined in following provisions of the Code of the Republic of Kazakhstan about administrative offenses of May 14, 2015 are allocated: - in chapter 5 of the General part the Administrative Code of RK "The Circumstances Excluding the Administrative Responsibility"; - in chapter 8 of the General part the Administrative Code of RK "Release from the Administrative Responsibility and Administrative Punishment"; - in chapter 9 of the General part the Administrative Code of RK "Administrative Responsibility of Minors", etc. Told demonstrates that the idea about forming of qualitatively new institute of the administrative responsibility in system of the Kazakhstan administrative law of torts by the legislator is substantially realized. And it isn't accidental as judgments of this sort visually are confirmed by the following examples. So, for example, the Code of the Kazakh SSR about administrative offenses of 1984 existing before acceptance the Administrative Code of RK of May 14, 2015 contained in the structure a far incomplete list of regulations about the
8 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» circumstances excluding the administrative responsibility which in the theory of the right existed actually. In this case, the legislator was limited only to the fact that were carried to their number - the emergency which found reflection in the article 17 Administrative Code Kaz. SSR, and the justifiable defense which found reflection in the article 18 Administrative Code Kaz. SSR. As we stated above, the whole chapters devoted to a regulation of the called types of the public relations were published in the new Code of the Republic of Kazakhstan about administrative offenses. Changes in political and legal reality, new approaches in rule-making, efforts of scientists in the sphere of the administrative right led to corresponding changes in an industry from the point of view of its standard and legal filling. There was a large number of own acts, and at the level of laws which existence during the Soviet period was impossible (civil service laws, ministerial procedures, appeals of physical persons and legal entities, etc.). Further reforming of the administrative and delictual legislation of the Republic of Kazakhstan is inseparably linked with adoption of the Concept of policy of law of the Republic of Kazakhstan of September 20, 2002. Advantage of the called Concept is that within the specified document by the legislator it is determined that "the current legislation providing functioning of a system of law of the country according to the Constitution of the Republic of Kazakhstan, the conventional principles and rules of international law requires further development, in particular, of step-by-step enhancement of current laws, and also acceptance in need of the new regulatory legal acts meeting the requirements of further democratization of society and tasks of social and economic development". The concept also determined tasks of further enhancement of management and control and supervising activity of state bodies, departmental and judicial control of respecting the rule of law in case of application of measures of administrative and forced impact is strengthened, the system of centralized accounting and collection of penalties is created. In the context of the ideas promoting further development of administrative law of torts, the Concept of policy of law of the Republic of Kazakhstan for 2002- 2010 assumed decriminalization of individual clauses of the Criminal code due to strengthening of the administrative responsibility that formed the basis for origin and entering of many additions and changes in structure of RK operating the Administrative Code. Emphasizing a role and value of the Concept of policy of law of the Republic of Kazakhstan accepted in 2002 it should be noted that it determined the main directions of development of a system of law of the country for the period till 2010. In modern conditions of development of the Republic of Kazakhstan the new Concept of policy of law of the Republic of Kazakhstan for the period from 2010 to 2020 approved by the Presidential decree of the Republic of Kazakhstan of August
9 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
24, 2009 for No. 858 is accepted. In this Concept for the first time for all history of development of the administrative legislation the idea that "an important component of the administrative right is the administrative law of torts which prospects of development are connected with updating of the legislation on administrative offenses which cornerstone recognition of the constitutional regulations about the rights and freedoms of the person and citizen directly acting shall be, determining a sense, content and application of laws triumphed. The legislation on administrative offenses shall be most directed to recovery of the violated rights, the prevention of the legal conflicts in society by administrative legal measures. At the same time when forming administrative legal sanctions the principle of their harmony of degree of public danger and to nature of an offense" shall be observed strictly. Essentially that the called starting positions formed a basis for further forming of the new administrative and delictual legislation, and studying of practice of application of the Code of the Republic of Kazakhstan about administrative offenses, both judges, and other subjects of administrative jurisdictional activities, caused the necessity of entering of essential changes into the Code of the Republic of Kazakhstan about administrative offenses (2001) and in some other legal acts of the Republic of Kazakhstan regulating the administrative and delictual relations. The bases for this purpose were the numerous conflict moments which were characteristic of the existing administrative and delictual legislation: - first, remained not up to the end worked out problematic issues of a ratio of regulations of the Code of the Republic of Kazakhstan of administrative offenses with other regulations of the administrative legislation; - secondly, it was not until the end of worked a regulation about a deadline of pronouncement of the resolution on the case of an administrative offense from the moment of making of an offense. Unfortunately, it still allows its double interpretation of law enforcement by bodies. So, for example, one judges consider this term as preclusive, others carry this term only by the time of pronouncement of primary resolution on case; - thirdly, in the Code of the Republic of Kazakhstan about administrative offenses it is necessary to make changes to individual clauses of the Special part to exclude their contradictions with other articles of the Special part and other sections, and also to provide compliance to requirements of the theory and practice; - fourthly, there is still a question of feasibility of "binding" of the sizes of administrative penalties to minimum payments of work (MRP), etc. The called us above and other reasons existing for this purpose became a basis that for the first time for all history of development of the administrative right the legislator came to a conclusion about need of differentiation of the administrative and delictual legislation to two most parts: material and procedural, and based on these ideas today in Kazakhstan are developed and the Draft of the Administrative
10 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» procedural code of the Republic of Kazakhstan is widely discussed. The administrative procedural code shall govern the public relations arising in case of production on cases of administrative offenses and also the public relations arising in case of administration of law by courts by consideration and permission of the administrative disputes carried to their competence by this Code. Tasks of administrative production are protection of the violated or challenged rights, freedoms and interests of the person and citizen, legitimate interests of legal entities protected by the law, strengthening of legality and law and order, the prevention of offenses, and also timely, complete and objective clarification of circumstances of each case, permission it according to the Draft of this Code, ensuring execution of the passed decision. In conclusion it is necessary to specify that processes of enhancement of administrative law of torts to be limited to those processes and actions about which we already told can't. Dynamics of the modern administrative and delictual relations demonstrates that ahead of us wait for the new researches promoting further enhancement of the administrative and delictual legislation. In this case it is necessary to agree that the Kazakhstan administrative and delictual legislation which changed within the last decade after all still will present us the new conceptual structural changes requiring the further theoretical judgment and reflection on pages of a modern legal seal. Reference: 1. Nugmanova E. A. Theoretical and practical problems of enhancement of administrative and jurisdictional activities in the Republic of Kazakhstan: yew.... докт. юрид. sciences: 12.00.02. - Almaty, 2010. – 333 pages. 2. Suttibayeva A. A. Theoretical problems of institute of administrative suppression: yew. … edging. юрид. sciences: 12.00.02. - Almaty, 2008. – 118 pages. 3. Administrative right: A training course / Under the editorship of R. A. Podoprigora. – Almaty: Tax expert, 2010. – 368 pages. 4. Shergin A. P. Chosen works of the hero of the anniversary / Sost. and отв. edition V. G. Tataryan. – M.: Academy of an economic safety of the Ministry of Internal Affairs of Russia, 2005. – 487 pages. 5. Concept of policy of law of the Republic of Kazakhstan. It is approved by the Presidential decree of the Republic of Kazakhstan of September 20, 2002 No. 949. – Almaty: DEShKIS, 2002. – 28 pages. 6. Salishcheva N. G. To a problem of enhancement of regulations of the Russian Federation Code of Administrative Offences//Materials of the international scientific and practical conference "Topical Issues of Administrative Law of Torts" devoted to the 70 anniversary of the honored worker of science of the Russian Federation, the doctor of jurisprudence, professor A. P. Shergin. – M.: All-Russian Research Institute of the Ministry of Internal Affairs of Russia, 2005. – Page 26-30. 7. Draft of the Administrative procedural code of the Republic of Kazakhstan (July, 2009). – Almaty: A charter for human rights, 2009. – 157 pages.
11 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
GONCHAROV S. B. Al-Farabi Kazakh National University
Scientific adviser - Doctor of Law, Professor A. S. Ibraeva Al-Farabi Kazakh National University
INNOVATIVE TECHNOLOGY STUDY LEGAL AND LEGAL CULTURE YOUTH
Since independence, the Republic of Kazakhstan strive to become a law- governed state, which will honor and implement the rule of law and above all to be human rights, the citizen and the state in general. Problems of legal awareness and legal culture of youth has long been interested in mankind. In terms of renovation of all sides of society is enhanced scientific-theoretical and practical study of the need for its legal sphere. Sense of justice is a set of beliefs, ideas, feelings, moods, relating to the right. It also includes the very idea of law, legal thinking, views on the role of law and legal institutions in society and public life, the idea of human rights and its responsibility to other people, the state and society [1, p.82]. Ibraeva A.S. 3 highlights the main features of justice, direction of the impact of this phenomenon on public relations - cognitive, evaluation, regulatory. Cognitive function of justice consist in the fact that through the perception and understanding of the legal phenomena occurs, essentially the knowledge of life - social or even natural, natural. Tasks such knowledge (at the level of everyday practice) does not consist in the identification and study of the general laws and related scientific truths, and in the establishment of related legal reality of events, actions, conditions, symptoms, etc. The subject of such knowledge are both legislators and citizens: each of them uses the notions of being and proper right to carry out their tasks in the legal regulation. The evaluation function of justice is that with the help of justice assesses specific life circumstances as a legally significant. Legal assessment - a activity of subjects of rights of both citizens and law enforcers to establish (identification) of the various circumstances of life and their social and legal qualification from the point of view of the concepts of law, the rule of law, proper behavior. In order to identify (to evaluate) a particular behavior to the right position, you must have a sufficient level of legal consciousness. The regulatory function of justice is implemented through a system of motives, values, legal systems, which are the specific behaviors and regulators have specific mechanisms of formation. For information on legal norms generates in subjects right complex psychological reactions, feelings, emotions, feelings, which are associated with the occurrence of certain motivating motivation or braking behavior. In this case of justice (in the form of legal psychology) appears as a motif
12 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» specific type of behavior [1, p.84]. Sense of justice has a direct impact on the effectiveness of social and economic problems, the implementation of legal reform, the formation of the rule of law. Knowledge of the legal value-oriented society, various social strata and groups of the population, taking into account the level of legal culture and legal awareness of citizens in the formulation, adoption and implementation of government decisions are indispensable for the scientific management of social processes and reforms in society. Legal awareness plays an important role in improving the legal and social life and development is an essential factor in the establishment of the rule of law is an essential and necessary condition for accurate and complete implementation of the law. The higher the level of legal awareness of citizens of the state, so follow the instructions exactly legal rules [2]. The developed sense of justice provides for the voluntary implementation of the legal requirements, understanding their accuracy and reasonableness. It makes people a sense of tolerance for violations of the rule of law, ie, of justice is an important factor in the development of legislation, enforcement of stability, the reality of the rights and freedoms of citizens. The perfect sense of justice also reflects the high overall and legal culture of personality. Legal culture - a qualitative state of the legal life of society, which is reflected in the achieved level of perfection of legal acts, legal and law enforcement, legal awareness and legal development of the individual, as well as the degree of freedom of its behavior and mutual responsibility of the state and the individual, positively affecting the social development and maintaining the very conditions of existence of society [1, p.89]. From the above we can see that the scientific-theoretical and practical significance of the study of legal awareness and legal culture plays a significant role in building a legal and democratic state. To work effectively to improve the legal awareness and legal culture, it is necessary to fully and objectively evaluate the current level of legal awareness and legal culture in the society. To date, no single method of evaluation of justice and legal culture, mainly using classical sociological polls, which in turn is quite expensive. We propose the introduction of remote online survey of young people, in our opinion this is the most innovative and cost-effective method of studying and evaluating the level of legal awareness and legal culture of youth. Since young people are the most vulnerable group of society, which will continue to implement state reform and public administration, it needs a comprehensive study. Especially it concerns the increase of legal awareness and legal culture of the youth of the Republic of Kazakhstan. Currently public authorities held a variety of activities aimed at enhancing the legal awareness of young people. In this regard, we believe it is necessary to carry out continuous monitoring and assessment of the effectiveness of these measures, and depending on the result of analysis to correct the work in this direction.
13 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
The objectives of the assessment method will be: 1. The study of mechanisms of increase of legal culture and legal consciousness of youth of Kazakhstan, compared with the experiences of other countries; 2. The collection and analysis of electronic profiles of young people from 14 to 29 years, in order to identify the level of legal culture of the Republic of Kazakhstan and the right consciousness of young people; 3. Development of recommendations on improvement of the activities of state bodies in terms of improving the legal culture and legal awareness of young people of Kazakhstan, as well as develop their own recommendations. As part of our evaluation of this method it is planned to prepare and adapt the usual sociological profiles for specific information resource, and then carry out a large-scale remote online survey of young people into 3 categories with the support of the authorized body in the sphere of state youth policy: 1. Citizens from 14 to 18 years old (students of schools and institutions of secondary-special education); 2. Citizens of 19 to 24 years (high school students, young professionals); 3. Citizens from 25 to 29 years (young workers, young families) [3]. Following the results of the survey to analyze the collected data and with the help of experts to prepare a final report on the level of legal awareness and legal culture of the Republic of Kazakhstan youth, then comparing the current experience of public bodies, in terms of raising awareness and legal culture with international experience, to make a number of recommendations and suggestions to improve the efficiency these mechanisms. To analyze the experience of remote online survey and establish the applicability of this method in the Republic of Kazakhstan and its effectiveness. We plan to adapt and implement this method of evaluation in stages, with the active co-operation with the authorized body in the sphere of state youth policy. In the first stage, we plan to prepare a questionnaire for the respondents, in the second stage to prepare a resource for data collection and processing questionnaires after the third stage to make the youth through state bodies, public organizations and foundations. The fourth step to collect and analyze the materials and complete all the elaboration of conclusions and recommendations on increasing the effectiveness of the mechanisms of justice and legal culture used by public authorities in the Republic of Kazakhstan. As a result of testing and implementation of this method, we plan to collect the most "fresh" and reliable information about the level of legal awareness and legal culture of the Republic of Kazakhstan youth, spend analysis, compared with the experience of other countries and develop recommendations and proposals to increase the effectiveness of the measures. We also plan to adapt and test a remote online survey and install its effectiveness in the Republic of Kazakhstan, to reveal the features and drawbacks of this instrument. We also plan to establish the
14 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» objectivity and efficiency of the analysis tool, and then modify and offer the public authorities to implement this method for the analysis of other issues. Reference: 1. Ibraeva A.S. Theory of Government and Rights. Tutorial. - Almaty, 2006. 2. Komarov S.A. The General Theory of State and Law: Textbook - 3rd Edition - M .: Yurayt 1997. 3. Goncharov, S.B., Ibraeva A.S., S.S. Dyusebalieva Actual issues of improving the legislation governing the implementation of the state youth policy in the Republic of Kazakhstan // Science and life of Kazakhstan. - Astana, №6 (42) 2016 - s. 33-37.
MUKHIYEV A.S. Master of 1 year Al-Farabi Kazakh National University
Scientific adviser - Doctor of Law, professor D.M. Baymakhanova
ADMINISTRATIVE AND LEGAL REGIME OF ROAD TRAFFIC SAFETY
"What is the stability and accord? It is family well-being, safety, your own home. "- Nursultan Nazarbayev. The order of road traffic safety in the Republic of Kazakhstan is the means of implementation of the state policy in the field of road traffic and combines a variety of norms and tools that regulate the relations in the field of road traffic safety for all traffic participants, a set of local executive and central bodies, public associations and organizations, legal entities, traffic participants, measures and means that ensure road traffic safety and the elimination of the consequences of accidents [1]. Law of the Republic of Kazakhstan from April 17, 2014 "About Road Traffic", consisting of 95 articles (in the RK Law of 15 July 1996, there were 28 articles) used new institutions. Responsibility rested with new additional authorized bodies, and in ensuring road traffic safety their rights and duties were envisaged; risk management and internal control systems in the field of road traffic were settled, as well as issues of risk in the field of traffic; under the government control and supervision the rights and obligations of officials in the field of road traffic were established. There were placed governance activities aimed at ensuring the safety of road traffic and liquidation of consequences of traffic accidents, ensuring the safety of road surfaces and their capacity, ensuring the safety of motor vehicles [2]. Classification and causes of road traffic accidents. Traffic accidents are classified into: 1) collision - an incident as a consequence of the fact that moving vehicles
15 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» collided with each other, or with the rolling stock of railways, or with a suddenly stopped vehicle (for example, in the event of a fault, before prohibiting traffic light signal, suddenly emerged obstacle, etc.) ; 2) rollover accident - in case of any incident in which moving vehicle overturned. The reasons of rollover are improper placement or securing of the load, the impact of adverse weather conditions, technical failure due to the use of incorrect management practices; 3) driving over a fixed obstacle occurs in the case of a running into or hit on an immovable object; 4) automobile – pedestrian accident occurs when the moving vehicle runs over a person or the person encounters a vehicle that is in motion, or in the case of transportation of cargo (or vehicle parts) extending beyond the vehicle. Cases of pedestrian accidents can include cases of running over people that are skating, sledding, skateboarding, moving in wheelchairs without motor; children riding a four- or three wheeled bikes. 5) running over a bicyclist occurs when the vehicle in motion runs over the bicyclist or the bicyclist encounters a moving vehicle. Injury of the bicyclist is much heavier in contrast to the usual pedestrian due to the fact that a person on the bike has more speed than a normal pedestrian and is located on an eminence; 6) driving over a standing vehicle occurs when the vehicle in motion drives over the other standing vehicle or a trailer; 7) running over animal-drawn carts happens when mechanical vehicle drives over draft animals / animal-drawn carts, or draft animals / animal-drawn carts collide with vehicle in motion; 8) transport running over individuals that are not traffic participants, fall of persons from a moving motor vehicle or inside vehicle in the event of sudden braking, acceleration or change of movement direction; 9) driving over animals occurs when mechanical motor vehicle runs over birds, wild and domestic animals, or these very animals and birds hit the motor vehicle in motion causing people’s injury or material damage; 10) other accidents - these include: fall of cargo or a rebound of a thing from the wheel on a person, animal, or other motor vehicle, driving over the suddenly appeared obstacle (fallen load, tire dumps and others.) [3]. Also, accidents can be classified according to the degree of gravity of the consequences: minor injuries; injuries of moderate severity and serious; material damage; particularly serious consequences; death of the victim. Specific factors affecting the accident rate are: failure to comply with traffic rules by drivers of motor vehicles; violation of traffic rules by pedestrians, a lot of accidents happening due to their fault; low level of discipline of drivers and pedestrians; lack of willingness to comply with the prescribed traffic rules; ignorance of the rules [3]. The main causes of accidents also include inattention, insufficient qualifications of drivers, self-confidence or a sudden deterioration of
16 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» health; poor technical condition of motor vehicles (brakes, gears and components on which safety depends); poor organization of traffic; poor location and incorrect securing cargo in the vehicle [4, c.49]. At the present time addressing safety problems in the area of road traffic is a priority, a comprehensive solution which should be divided into the following main components: 1) preventive work among the population and traffic participants for ensuring road traffic safety; 2) timely repair and maintenance of roads; 3) the application of new technical means of verification in the field of road traffic. The most common causes of road accidents are: 1) going out to the roadway at an undisclosed location close to the vehicle in; 2) going out to the roadway because of the trolley or other vehicle and other obstacles. In this case, the driver cannot always react to sudden occurrence due to the object; 3) games on the roadway, often children unconsciously start to play in places of vehicles movement, especially in the private sector, since there are no domestic platforms unlike apartment buildings; 4) walking on the roadway. It is dangerous even in the way to your vehicle , or when you call a taxi on the road. [4] The main objective is to build a system of preventive security measures in the field of road traffic, to reduce mortality due to the road accidents and total number of accidents’ victims on the territory of the Republic of Kazakhstan. For the occurrence of a positive situation in the field of road traffic and achieving these goals there is a necessity to address the following tasks: 1) to achieve efficiency of the regulatory framework on safety prevention of road traffic; 2) to ensure the participation and improvement of the law enforcement bodies’ coordination in the prevention of road traffic offenses; 3) to identify and address specific conditions and factors that contributed to the commission of an accident; 4) to prevent risky behavior of participants in road traffic; 5) to reduce child road traffic injuries; 6) to implement and improve the organization of movement of vehicles and pedestrians productively. Organization of interaction and mutual respect both drivers and pedestrians. [5] Solving these tasks will allow: a) to ensure the effectiveness of the road accidents’ prevention system; b) to improve the regulatory and public awareness provisions to ensure the prevention of traffic accidents;
17 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
c) to coordinate the activities of local self-governing bodies and public organizations for the prevention of road accidents [3]. Implementation of the measures on the line of traffic safety will provide an opportunity to improve the quality of the facilities and maintenance of public roads of local importance. Reference: 1. Code of the Republic of Kazakhstan of administrative offences: from 5th July of 2014 year (with changes and additions as of 07/26/2016.).// http://online.zakon.kz, 2016. 2. Law of the Republic of Kazakhstan from the date April 17, 2014 № 194- V «About Road Traffic" (with changes and additions as of 29.03.2016 r.) //http://online.zakon.kz, 2016 3. A.E. Mamontov Legal problems of safety traffic relations in Almaty city. - Almaty, 2014.- 24 p. 4. Bershadskiy V.F., Dudko, N.I., V.I. Dudk: Management bases to control motor vehicles and traffic safety. Publisher: Dicta- M., 2008.-458 with. 5. Transport in the Republic of Kazahstan.2009 - 2013. // Statistical Yearbook. - Astana, 2014. - P.47. 6. V. Yesimov: In Almaty city will operate more than 1,000 ecologically clean buses. // Http: //strategy2050.kz 2016 .
MOLDAKHMETKYZY A. 2-year master degree student of Al-Farabi Kazakh National University
Scientific adviser - acting professor Department of the theory and history of state and law, constitutional and administrative law Akhatov U.
PROBLEMS OF ACTIVIZATION OF SOME ASPECTS OF LAWS OF NATIONAL CUSTOM IN THE MODERN PERIOD
For strengthening of statehood of the Republic of Kazakhstan it is necessary to use legal heritages in the laws left by ancestors. Roots of laws of custom lie deeply and take the millennia. Nomads of Eurasia first of all recognized human rights, and delivered protection of interests of a sort on the first place. As a result of development they analyzed criminal actions, and appointed responsibility for this actions within morality. The legal culture of ancestors was high. They systematized the forms providing the state interests, legal relations and the public relations regulated by the law, legal institutes, legal regulations, and his norms and have created public (institute of biy, Council of Elders) and state organizations (council of the khan) providing their execution [1, 192 p.].
18 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Thus, ancestors who could connect the above-stated signs and forms reached big achievements. For effectiveness of these achievements first of all they comprehended amounts and methods of ownership of legal values in society, and used them in protection of interests of the person, attached special significance to human rights. Thus, ancestors of Kazakhs made use of experience of comparison of the rights and obligations of the person with interests of society and state which helped to make the correct decision in legal issues, and also correctly make decisions. Unfortunately, now such succession in our legal reform are lost. Now for continuous operation of our laws it is necessary to use technology of ancestors and it is necessary to implement universal undertakings in laws. Their implementation in modern laws will promote increase in its culture and its active functioning. Now, because of not achieving of stable functioning of laws, many changes are brought in laws. The understanding of such laws for ordinary people is heavy. For the prevention of each criminal act, for a fair solution of the considered criminal case certainly the criminal proceedings holds a specific place. The criminal proceedings works only then when one person makes illegal action. In age-old times in this process participated defendant, witness, claimant, biy, khan, sultan, and other persons. Generally criminal case was considered by biy, who was chosen by the victim and the defendant. The main objective of biy first of all was to reconcile both parties, not to allow distribution of hostility in society and if on condition of not achievement of this purpose - fairly consider case. Biy was psychologist who has mastered all aspects of proceedings, speaker, good historian who knows the past of his people. Therefore, of that time biy always achieved the objectives. Biy by consideration of criminal case reached the main point, considered case within morality. With the decision of biy all disputing parties, even criminals were satisfied[2, 168 p.].Iс жариялы жағдайда, көптiң алдында, қағаз-қаламсыз өткен. Өйткенi, кез- келген iстi жариялау қарау, қылмыстық iстiң әдiл шешiлуiне, сөз байласып, пара алуына тұсау болып, бидiң бiлгiрлiгiн, пайымдағыш қасиетiн көрсетедi. The main objective of biy was to prove that actions of the criminal or the defendant was incorrect, to explain him danger of his actions, to direct him to a right way and to impose to it the corresponding punishment. In the Kazakh custom law there was a set of ways and mechanisms of impact on conscience of the criminal. Also, it was considered, that public consideration of the case will be effective. It is necessary to recognize that now we treat with neglect laws of the Kazakh custom law. At the present stage it is necessary to implement, take positive sides of laws of the Kazakh custom law in current laws of Kazakhstan as we should not think only about current and future our society, but also not forget our past. It influences sense of justice, national interests, preserving independence and sovereignty of the state, and establishment of peaceful society.
19 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Nowadays implementation of some aspects of court of biy is considering. It is a historical link of legal cultures of the present and past. The court of biy at the moment exists in some regions, for example in Saryagash in the Southern Kazakhstan, Keles, Abay, in the Makhambet region in Atyrau [3, 2-3 p.]. Decisions of biy have no legal force, however they have big authority, and are a prerequisite of future development of this institute in modern society. Implementation of court of biy, establishment of its legal status will entail only positive results in modern society. The Council of Elders also exists in different regions of Kazakhstan. But so far it is only public organization, but it specifies the strong future now. Therefore, we consider, that it will be productive to implement in law departments of the special courses preparing "court of biy" in which will be considered heritage of our ancestors. Biy generally executed function of judges. This social category was since ancient times. At the beginning this function was executed by elders, khans, the separate group - biy was allocated then. Being biy was considered as talent, and nobody was elected as biy. Biy is not only the lawyer, he is a historian, politician, speaker. Biy in any dispute could reconcile easily the parties and pass a fair solution. Therefore, among society they had very big authority. If in the Kazakh society instead of biy would be jury, in that case they couldn't perform completely functions of biy. Therefore the Kazakh custom law kept its features, and didn't give in to laws of Sharia. As the famous lawyer of Kazakhstan M. Narikbayev said "Since ancient times wide earth of Kazakhs is a gold cradle for the school of biy, which passed from the father to the son, from the ancestor to descendants" [4, 7p.]. Therefore, renewal of institute of biy is one of the main objectives. Since the Republic of Kazakhstan proclaimed about its independence, in the world there were many cardinal changes. It is obvious that the large states at a stage of globalization influenced other states not only economically, but also spiritually and morally. In such situations, each state, each people, each nation can lose its features. In such cases the unique exit is renewal of last cultural and moral values. It is necessary that the undertaken reforms were connected with the past, history. In the Kazakh custom law there also was board of biy. They was not same as court of biy, but it had the same functions. They also established principles of fair, legality, morality. It shows, that Kazakh custom law had an effective influence in the society. As crime is unlawful action and it violates rights and interests of people, society conducts a continuous battle with it. But it does not stop. And if we established legal culture of our ancestors, it would have an effective affect. In ancient society of Kazakhs when laws of the Kazakh custom law were applied, in society there were no such concepts as prison, however crimes were. But by establishment of strong legal culture of crimes were stopped.
20 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Reference: 1. Kenzhaliev Z. Legal culture in the society of kazakh: theoretical issues, history: Zan. - Almaty, 1997. - 192 p. 2. Zimanov S.Z. Kazakh custom laws and its bases: 10 v. – Almaty: Zhety zhargy, 2001. - v. 1. - 15 - 168 p. 3. Zhapparkhan O. Board of biy // Egemen Kazakhstan. - 1995. - 27 May. 4. Narikpaev M. From biy to the superior court. - Almaty, 1999. -7 – 64 p.
ALPEIS S. 1st year master student of the Faculty of Law оf Al-Farabi Kazakh National University
Scientific adviser - Ibraeva A.S. doctor of juridical sciences, professor Department of Theory and History of the State and Law, Constitutional and Administrative Law
LEGAL CULTURE AS A BASIS OF FORMATION OF CONSTITUTIONAL STATE AND CIVIL SOCIETY
Problem of relations between civil society and constitutional state is one of fundamental scientific problems, which always worried advanced people and progressive thinkers of ancient, medieval and modern times. This problem has appeared with occurrence of the state. Since then, the question of the relationship between government and society is in the center of attention, which was the cause of many social conflicts, political upheavals and revolutions. I think that this issue is relevant today. Modern democratic constitutional state presupposes a developed civil society, in which interact different social organizations and political parties, in which no ideology can be established as the official state ideology (remember the obvious example - in our country for decades operated a one-party system, and the state ideology was Marxism-Leninism). Currently in Kazakhstan the process of formation of a civil society based on the principles of liberty and security of citizens hasn’t been completed yet, and the main role of the state in the present period of time is the protection of human security, rights and freedom, as well as the development of political and legal culture, as a separate the individual and the individual societies as a whole. Civil society is the companion of constitutional state, because one of its foundations is presence more than just a community of people, and civil society. But despite the general use of the concepts of "civil society" and "constitutional state", there is still a fairly large number of different interpretations of their specific content in modern political science. The different sources are treated civil society and constitutional state differently. Scientists differ in their assessments of this phenomenon.
21 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
The ideas and principles of the constitutional state and open civil society enshrined in the Constitution of the Republic of Kazakhstan, require the formation of the legal culture corresponding to the primary objectives of the activities of the political-legal and social institutions. The complexity of the socio-economic and political situation in the country has set the domestic legal science responsible task as the development of the theory of the national legal culture and implementing it in practice everyday activities of state and public structures. It turned out that the grand challenges of society associated with the construction constitutional state and open civil society is organically connected with the formation of a new legal culture, with clear rules and principles are based on the legal consciousness and moral values. I have often thought about the fact that without real awareness of the current situation, a sober assessment of the existence and level of implementation of the rights and freedoms can not be the progressive development of civil society, the functioning of the constitutional state in a democracy. In addition, the constitutional state can not be created in a society where social conflicts, political struggle goes beyond law. Recall that the constitutional state can exist and develop only when the citizens have agreed on the principles its arrangement, where freedom and human rights are associated with the respect and trust of the citizens to the state, its institutions and to each other [7, article 9.1]. No matter how perfect principles of constitutional state, they can never been translated into reality if in the state take place political instability, lack of faith, moral and spiritual emptiness. I think that it is necessary some time to state authorities, not in words, but in fact guided by the idea of human rights as the supreme value, to these rights and freedoms are really determined by the meaning, content and application of laws, the activities of the legislative, executive and judicial powers, local self-government. Today in the scientific world there is a continuous in-depth study of the problems of development of civil society and constitutional state. In modern juridical literature marked two developed separately concepts: constitutional state and civil society. The appearance of the two concepts is not accidental, it captures the emerging and deepening for more than a century the gap in understanding the nature of the state in the broad sense as "powerfully organized by the people", "it is the people as a whole", as "a lot of people connected by common spiritual destiny, and existing in unity on the basis of spiritual culture and sense of justice" [6]. The idea of building a civil society has become one of the priority directions of the state reform strategy, which is based on a program of democratization and political reforms proposed by the President. The fundamental principles of civil society in Kazakhstan became the recognition of ideological and political pluralism, separation of state and public institutions. The legislation reserved the
22 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» right of citizens to form political, social, professional associations [5, p. 24]. We know that the population of Kazakhstan is diverse ethnically. There are representatives of 130 nationalities. The largest native ethnic cultures in their population are indigenous ethnic group Kazakhs - 53.4%, Russian - 30%, Ukrainians - 3.7%, Uzbeks - 2.5%, Germans - 2.4%, Tatars - 1.7%, Uighurs - 1.4%, Belarusians - 0.7%, Korean - 0.7%. Many nationalities have moved to Kazakhstan not on their own, but as a result of political persecution and repression. During the period of Stalinism Kazakhstan took one and a half million exiled political prisoners from Russia and other regions of the USSR. And about one million three hundred thousand persons were deported here as representatives of unreliable people. All of these people have found understanding and support of the Kazakh people, found on the ground of Kazakhstan their second Motherland. In Kazakhstan people adhere to the principle of equality of nations, living in our country. For every citizen of Kazakhstan created all conditions for the full national self-expression, and given right to engage their ethnic and cultural interests. Legal safeguards and respect for all languages used in the country protect the inalienable right of citizens of all nationalities to develop their language and culture. About 40% of secondary schools and 70% of higher education institutions of the republic carried out the educational process in Russian. There are schools with Uighur, Uzbek, Tajik, Ukrainian, German, Polish and other languages of education in areas densely populated by ethnic minorities. Sunday schools of national-cultural associations get government support in learning the native language. Currently, 23 languages of ethnic groups of Kazakhstan is studied in 170 Sunday schools and 3 national revival schools. Interethnic policy is based on the principle of unity in diversity. The civil peace and accord in Kazakhstan is the result of hard work of the state and whole society. Today in Kazakhstan there are 2993 religious associations, including 2563 as legal entities and subsidiaries. There are 1638 Muslim communities, 237 – Orthodox, 949 – Protestant, 73 – Catholic, 21 – Jewish and 75 – unconventional. On the territory of the republic preached 262 foreign missionaries, located 2225 places of worship. The fundamental principles of interaction between the state and religion, as well as the relationship between different confessions are defined by the Constitution of the Republic of Kazakhstan, which in the first article proclaims our Republic as a democratic, secular, legal and social state. The legislation approved by the principle of separation of religion from the state, according to which: The State and its agencies do not have the right to control the attitude of its citizens towards religion and do not keep records of citizens on this base. Our state does not interfere in intra-activity (if this does not violate applicable laws). Kazakhstan does not provide religious associations material or any other, including financial,
23 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» support. Religious associations do not fulfill any governmental functions. Religious associations do not interfere in the affairs of state, and deal only with issues related to the satisfaction of the religious needs of the citizens. The State undertakes to protect the lawful activities of religious associations, it does not shy away from legal regulation of their status, engage in legal registration of their activities, which provide a balance of relations between religions and authority [1, p. 19]. Thus, the Constitution of the Republic of Kazakhstan guarantees the rights of parties and movements, associations, with the exception of those whose activities are aimed at "a violent change of the constitutional system, violation of the integrity of the Republic, undermining of state security, inciting social, racial, national, religious, class and tribal enmity". "Formation of unauthorized paramilitary units" not allowed [7, article 2]. Today a capable information market has formed in Kazakhstan. These include the emergence of a dominant segment of the non-state media, a significant differentiation of the thematic fields, the creation and operation of fairly large media companies. If before 1990 were published in all 10 national (government) newspapers and magazines in the country and aired 21 television and radio, that on January 1 of 2003 there are 1824 media, including 1202 newspapers, 483 magazines, 124 TV and radio companies, 15 information agencies in Kazakhstan. Only in 2002 the number of media outlets increased by 19%. 80% of the mass media in Kazakhstan are private. The owners of the 159 publications are associations, 11 - political parties and movements, 10 - religious organizations. Such thing as a legal culture of personality is the knowledge, understanding and respect for the rights, manifested in the conscious performance of his prescriptions. Every citizen of the Republic of Kazakhstan shall have legal culture. This is reflected in learning the basics of her legal knowledge, respect for the law, the right, in the conscious observance of the law, within the meaning of the social, legal liability, in the intolerance of the offenses in the fight with them. Knowledge of citizens of their rights, freedoms and responsibilities of the state and society is an integral part of the legal culture. Legal human consciousness involves a sense of conviction that he will find in the state, its agencies assist in the protection of their rights and legal interests of the state fair requires it to fulfill its responsibilities and that he is equal in rights with other citizens, equal before the law and the court [7 article 4.4]. The highest level of legal culture of the individual is a legal activity. It is manifested, firstly, in the readiness of the person to active conscious, creative activities, both in the sphere of legal regulation, as well as in the implementation of law, and secondly, in conformity to law (or the law) behavior (activities), in the basis of which is the belief the need to serve the law as the highest value. A special kind of group and individual legal culture make vocational and legal culture of lawyers [4, p. 166].
24 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Legal culture is a necessary and natural environment of formation, development and implementation of legal consciousness. As an integral part of the legal culture legal consciousness reflects its, objectifying in other components of the legal culture. The highest of these are the orientations toward universal human values and their core is a human personality, with its natural rights. [3, p. 46]. Raising the level of legal education and culture of the population, overcoming legal nihilism is an important part improving the legal culture of society. In the same way the problem of state arrangement is closely connected with the increase the level of legal culture in practice and administrative- organizational level [7, Article 1]. Thus, the legal culture is the basis of formation of constitutional state and civil society of the Republic of Kazakhstan. Reference: 1. General Theory of Law and the State: textbook / Ed. Lazarev V.V. – 3rd ed., revised and edited. - M .: Jurist, 2001. - 520 p. 2. Ibraeva A.S. Theory of State and Law: textbook. 2nd edition with addition and edited. – Almaty: Zheti Zhargy, - 424 p. 3. Kaminskaya V.I., Ratinov A.R. Sense of justice as an element of legal culture // Legal culture and issues of legal education: Coll. scientific works. - M., 1974. - P. 46. 4. Absattarov G.R. Legal consciousness in the public policy system. – 2009, number 1, - P. 50-51. 5. Nurpeisov E.K., Kotov A.K. State of Kazakhstan: from the Khan's power to a presidential republic. – Almaty: Zheti zhargy, 1995. – 88 p. 6. Magaziner Y.M. The general theory of the state. – 1922, P.107. 7. Law of the Republic of Kazakhstan "About the state service"
ANUARBEKOV B. student 4 courses of the Faculty of Law Al-Farabi Kazakh National University
Scientific adviser - Ph.D., associate professor Ospanova D.A
IMAGE OF CIVIL SERVANT IN THE REPUBLIC OF KAZAKHSTAN
Kazakhstan needs competent staff with knowledge, skills and abilities that will be used in their professional activities. Not by chance in his message to the people of Kazakhstan "Kazakhstan-2050" President Nursultan Nazarbayev says that "an official of the new generation - a servant of the nation, patriotic and fair, dedicated and professional" [1, p.159]. In the transition to a market economy, which is accompanied not only by social and economic crises, but also when human behavior is difficult to legal and moral regulation, there is no doubt the special importance of spiritual and moral and legal education of public servants. "The crisis of morality, - academician of
25 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
NAS RK notes, Doctor of Law, Professor MT Baimakhanov - supplemented and aggravated by the crisis in the legal sphere of society "[2, s.32-33]. Government officers should be aware that the service in the state bodies - is an expression of special confidence in them by society and the State, as reflected in the provisions of the Code of honor of government officers of the Republic of Kazakhstan, as well as in the text of the oath of administrative government officers of the Republic of Kazakhstan. Carrying the public service places high demands on the moral and ethical image of government officers. The duty of the civil servant as a state representative, his professional honor and dignity are especially significant. For the image of the civil service is of great functional value and status. It is an indicator of the level of trust in the population and the criteria for assessing the effectiveness of community management activities carried out by the state change. It captures the extent to which the actions of state bodies' requirements and expectations of specific social groups, and society as a whole. As a result, the image largely determines the behavior of citizens in relation to public authorities, determines the degree of public support for the public service activities. Creating a positive image of the civil service and government officers is a prerequisite for the efficient functioning and development of a social institution, as well as a condition for increasing the efficiency of public bodies and the civil service system. Government officers - that face the state and its representatives is a powerful apparatus of power. A civil servant must have qualities such as high moral responsibility, professional knowledge and ability to apply them in practice, honesty, integrity, active life, have a sense of patriotism, the moral character of the civil servant. This is all very fine words, but should reflect on their meaning. It does really modern public servant all these qualities? What is the reason for this low level of prestige and authority of the civil servant to the public? Generally speaking, the answer is - well known to all of us, this "moral disease" as corruption. I will not dwell on the argument that all the same is the cause of corruption in our country. I will say one thing: the corruption of the state apparatus today has reached unprecedented heights, and that it is the cause of, say, not very positive opinion of the population of government officers. The state tries to fight corruption, but the results, unfortunately, are currently extremely scarce. We skip over the fact that the government "fights" corruption in the face just the same of its employees. So, what steps should be taken to create an improved public service, to create not just positive, but positive authoritative image of public servant? I propose to draw on foreign experience, to learn the most effective methods of working in other countries, but not blindly copying their experience, and carefully observing, studying the most positive aspects and carrying out a thorough adaptation to the conditions of Kazakhstan during their implementation.
26 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Take as an illustrative example of Singapore. The Singapore model of organization of the public service is widely recognized as one of the best in the world. The main factors that determine success are responsive and professional guidance; management, where the public service plays a crucial role, and the inherent positive qualities of people. That they built an efficient and honest civil service in Singapore. Experience in some countries shows that the corrupt, incompetent and inefficient civil service leads to bureaucracy, poverty, misery and degradation of the economy. To avoid this requires a political leader who can maintain a good, spotless, efficient and responsive public service. Management should be responsible, excluding the life of luxury on the background of poverty of the people. [3] Success and excellence of Singapore civil service is ten principles underlying its activities requiring intensive and careful use and maintain. A fundamental principle of the organization of the civil service in Singapore is the principle of meritocracy, which is the opposite principle (a system) patronage. [4] Principle (the system) is based on meritocracy, merit-civil servant and is aimed at efficient use of human resources. Also, competitive salaries of government officers are a guarantee that the talented and competent staff will not go to work in the private sector. High level of remuneration of officials provides parsimony principle. "Only two people are forced to work incentive: thirst wages and fear losing it" - Henry Ford once said. One of the main principles of the Singapore public service are integrity and anti-corruption discipline. Singapore's anti-corruption strategy is to adopt a stringent laws and regulations, the payment of the corresponding decent salaries to government officers, severe punishment of corrupt officials, the efficient functioning of the Office for Combating Corruption, personal example of senior executives. High efficiency and effectiveness of Singapore's civil service is the result of strict discipline, diligence and assertiveness officials, their professionalism and excellent training; hiring the most capable candidates on the basis of meritocracy principle, low levels of corruption, high requirements on the part of political leaders of the country, the relentless pursuit of excellence and the achievement of concrete results. Therefore, to form a positive image of government officers need to cultivate in each of them patriotism and rejection of corruption, strict and rigorous observance of the Code of honor of government officers. Kazakhstan should carefully examine the Singaporean model of public service, as it is by following certain principles, it has become one of the best in the world. In Singapore does have a lot to learn. It is a strong, effective, fair and sensitive public service is the basis of excellent management of Singapore and its impressive social and economic achievements [5]. Reference: 1. NA Nazarbayev Message from the President of the Republic of
27 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Kazakhstan Nursultan Nazarbayev to people of Kazakhstan. January 17, 2014 "Kazakhstan's way - 2050: Common goal, common interests, common future." - 01.18.2014. - Astana, Akorda, 2014. 2. Baimakhanov MT et al. The interaction of the legal consciousness of morality and morality in a society in transition. - Almaty "Zheti Zhargy", 1995, p. 32-33. 3. Mark Hong. The State Service of Singapore: efficient, fair and sensitive. Lecture at the Russian Academy of Public Administration under the President of the Russian Federation. Moscow, December 15, 2000 4. The principle of patronage - (production system), in which the selection of the civil service derives from principles of personal loyalty, political affiliation, family ties or friendships. 5. Turisbekov AT, Ph.D. "What can learn from Kazakhstan's public service experience Sigapura?".
ARZHAN N. 4st year student of the Faculty of Law Al-Farabi Kazakh National University
Scientific adviser - PhD, associate professor Kusaynov D.O.
EVOLUTION AND MODERNIZATION OF AN ADMINISTRATIVE DELIKTOLOGIYA IN THE REPUBLIC OF KAZAKHSTAN
During the modern period of the politician of decriminalization of criminal acts and transferring of certain standards of the criminal legislation to the sphere administrative is not a casual, but natural result of stage-by-stage reforming of the legal sphere of the Republic of Kazakhstan. In this regard the questions connected with use of standards of the administrative legislation demand deep studying. Fight against administrative offenses from the scientific-theoretical point of view puts forward such urgent and perspective direction as a research of questions of improvement of measures of the prevention and suppression of various forms and types of antisocial behavior, judgment of the mechanism of their interrelation and interdependence. Set of administrative offenses can quite be considered as the mass social phenomenon which, as well as crime, is characterized by such indicators as the level, dynamics, structure, territorial distribution, etc. According to experts, the total economic damage from administrative offenses is quite comparable to damage from many types of dangerous crimes. Crime is object of studying of general-theoretical science of the criminal cycle "criminology" and is presented in the form of system and structural education, rather independent and specific social phenomenon having criminal and legal character. Active development of criminology in the former USSR falls on the 60th years of the twentieth century. Acting as the social and legal science
28 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» comprising as components: studying of the social nature of crime, the reasons and conditions of commission of crimes, and also a legal side of fight against it, it left studying of problem aspects of the reasons of commission of administrative offenses outside a research. In this regard such direction in science as an administrative deliktologiya – science about a state, dynamics, prevalence, the reasons and conditions of administrative offenses and measures of fight against them gained development. In an intensive form it developed in the territory of the former USSR since the end of the 70th – the beginning of the 80th years of the twentieth century. During this period the first attempt to concretize separate theoretical aspects of an administrative deliktologiya was made by the Soviet researcher V. I. Remnev. He suggested to consider this direction in science as "an administrative deliktologiya – the doctrine about an administrative deliktnost". After it, in the first half of the 80th some Soviet scientists (A. B. Agapov, D. N. Bakhrakh, I. I. Veremeenko, E. V. Dodin, M. I. Eropkin, A. P. Korenev, F. E. Kolontayevsky, Yu. M. Kozlov, B. M. Lazarev, L. L. Popov, A. P. Shergin, etc.) began to conduct the corresponding researches of the reasons and conditions of commission of administrative offenses, the mechanism of formation of antisocial behavior which showed existence of interrelations between separate types of administrative offenses and crime and also the fact that norms of administrative law governing the public relations in the sphere of public administration is predetermined specifically by other relation and other approaches to the solution of pressing problems in the stated context. Unfortunately, in Kazakhstan channelized scientific practically did not develop. It is thought, on that there are good reasons. First, in the territory of the former USSR the administrative deliktologiya underwent the same repressive influence from public authorities and ideology what was rendered also on criminology. These sciences, rendering a surgical and deep research of the social and legal reasons and conditions of emergence of offenses, in fact, called in question ideologically settled idea of the USSR as the state where crime and a pravonarushayemost is almost eradicated. In this situation in Kazakhstan which was on the periphery, especially it did not gain even small development. The doctoral candidate did not find any monographic research, during this period, even in scientific and educational literature of Kazakhstan now. Secondly, an administrative deliktologiya, without having got due support from the state, since the beginning of the 90th years of the XX century prior to the beginning of the XXI century practically ceased to use attention of a wide range of scientists. Further the collapse of the USSR, change of a social and economic formation (transition from administrative socialism to a phase of market economy) almost completely slowed down development of this scientific direction. Only since the beginning of the XXI century the attention of scientists
29 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» was drawn to this science again. As it appeared, democracy – not anarchy and permissiveness and society even more than needs an accurate order in the public relations in the sphere of public administration earlier. Especially glubinno, at the level of doctoral dissertations, the considered science gained development in Russia. It should be noted works of the Russian scientists: E.E. Genzyuka "An administrative deliktologiya", N. P. Myshlyaeva "Theoretical and applied bases of an administrative deliktologiya", M. I. Nikulina of "Problem of science of an administrative deliktologiya". Fragmentary also such scientists-lawyers as V. P. Lozbyakov, N. D. Eriashvili, V. G. Tataryan, etc. were engaged in studying and the analysis of separate problems of an administrative deliktologiya. From the Kazakhstan scientists it is necessary to select publications A.A. Taranova, B. A. Zhetpisbayev. Some urgent problems of an administrative deliktologiya were considered in the master's thesis of the doctoral candidate. Thirdly, scientists and practicians of Kazakhstan, researching, having global character (organized crime, terrorism, etc.), involuntarily missed from the sphere of studying fight against administrative offenses, including their insignificant. Therefore it is quite possible to agree that both in Kazakhstan, and in Russia "fight against them in most cases has departmental or local character, and its results, as a rule, are not considered when developing the strategic questions ensuring safety of the personality, society and state". Though as it was already stated above, according to experts, the total economic damage from administrative offenses is quite comparable to damage from many types of dangerous crimes. Fourthly, administrative offenses in Kazakhstan are characterized by the high level of latency that a priori promotes emergence at a considerable part of the population of feeling of confidence in impunity of asocial and illegal behavior, doing such phenomena as if habitual and not condemned that generates new administrative offenses, and often moves some and on crime execution. Fifthly, administrative offenses in Kazakhstan are closely connected with commission of crimes in the financial sphere. Therefore the progressive tense existed opinion that public authorities, carrying out fight against crimes, in passing use organizational measures of fight against administrative delicts. Though such fight has to be special and purposeful. In this situation, in our opinion, it is necessary to carry out search of new ways, receptions, means for suspension of growth of administrative offenses within science – an administrative deliktologiya further to create conditions to a steady tendency to their decrease, and also to direct corrective actions to all set of the made administrative offenses in the country. Sixthly, relevance of introduction of organizational and methodical fundamentals of science – an administrative deliktologiya in Kazakhstan is also defined by the fact that now the huge number of the public authorities given
30 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» administrative and jurisdictional authority is involved in the sphere of fight against administrative offenses, besides specialized administrative courts exist and work, information and statistical providing and supervision of legality are exercised by bodies of prosecutor's office. However, as reality shows, each body of the state in this sphere carries out fight against administrative offenses without having the uniform direction. Many legislative, organizational and methodical aspects are interpreted in different ways though in general work in one direction based on norms of administrative law is carried out. It predetermines need for creation of the Concept of administrative policy of law of the Republic of Kazakhstan founded on the Concept of policy of law of the Republic of Kazakhstan of 20.09.2002. The specified prerequisites once again emphasize relevance and need of further improvement of science – an administrative deliktologiya for effective use of all system of its methods in fight against an administrative deliktnost in the Republic of Kazakhstan. Owing to the developed objective and subjective reasons it is difficult to refer an administrative deliktologiya in pure form to category of legal sciences. In our opinion, it is synthesis of many sciences (right sociology, legal philosophy, legal psychology, the theory of the state and the right, constitutional right, criminology, the information right, a financial law, administrative law, etc.) though in the basis it is connected with administrative precepts of law. Therefore there is a need for a complex research of an administrative deliktnost through a prism of the specified legal institutes, in our opinion, will help ontologic and gnoseological knowledge of the social and psychological and legal nature of administrative offenses, development of the scientifically based and practical approved organizational and legal measures of fight against an administrative deliktnost (pravonarushayemost). It, undoubtedly, is urgent at the present stage of development of administrative law of torts, as in the Republic of Kazakhstan, Russia, and in other states of the CIS. Relevance and need of an administrative deliktologiya as one of effective tools of the present in fight against administrative offenses, is defined also by the fact that during the modern period in Kazakhstan "scope" of application of criminal and legal corrective actions will have to decrease due to use of other methods and educational tools and coercion. Thus, we consider that theoretical provisions, conclusions and recommendations of an administrative deliktologiya as the independent science studying regularities of an administrative deliktnost will help further improvement of administrative and jurisdictional practice of authorized public authorities and administrative courts with the Republic of Kazakhstan, elaboration of uniform administrative policy of law in Kazakhstan. Also the role of the general laws of science in expansion of scientific knowledge in the field of an administrative deliktologiya in the Republic Kazakhstan, and also recognition by the Kazakhstan
31 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» scientific world of an administrative deliktologiya as independent scientific direction and subject matter in law colleges seems not less important.
AUGANOV S. undergraduate of 1 course of law department Al-Farabi Kazakh National University
Scientific adviser - doctor of jurisprudence, professor Ibrayeva A. S. Department of the theory and history of state and law, constitutional and administrative law
THE LEGAL BASIS FOR THE FORMATION OF AN ANTI- CORRUPTION CULTURE
Today the corruption has become widespread throughout the world. The problem of combating corruption is one of the most urgent and pressing in our society and the State. Corruption is a serious threat to the national security of any State, to the functioning of public authorities on the basis of justice, to the rule of law, democracy and human rights, equality and social justice. It hinders economic development and endangers the foundations of the market economy. Therefore, anti-corruption is an important priority of State policy of the Republic of Kazakhstan. Anti-corruption is an important priority of State policy of Kazakhstan. Corruption introducing a systemic threat to the security of Kazakhstan endangers the stability of the State and society. It hinders the ongoing economic and social reforms, creates a negative image of the Republic of Kazakhstan on the international scene, has a negative impact on national economies. It in advance puts corrupted and honest businessmen in unequal position and breaks the competition in domestic and foreign markets. The message of the President of the Republic of Kazakhstan - the Leader of the Nation Nursultan Nazarbayev "Strategy “Kazakhstan-2050" as a new political course of the hardened State” says that corruption is not just a delict. It undermines faith in the effectiveness of the State and is a direct threat to national security. However, the efforts made in the field of combating corruption still does not have the desired results. High corruption risks and threats for the life of the State, society and man still persist and it raises the question of the effectiveness level of legal measures in this area [1]. Implementation of anti-corruption policy at the present stage should be accompanied by comprehensive anti-corruption measures in all fields. It should be based on the principles of morality, partnership and priority of measures for preventing corruption. So, in Kazakhstan for the first time in the post-Soviet space competitive
32 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» selection was implemented for all State services. State offices were divided into political and administrative. The measures for improving the professional level of State servants were brought into action. Corruption is a serious threat to the national security of any State, to the functioning of public authorities on the basis of justice, to the rule of law, democracy and human rights, equality and social justice. It hinders economic development and endangers the foundations of the market economy. Therefore, anti-corruption is an important priority of State policy of the Republic of Kazakhstan. The State anticorruption policy strengthens the social, economic and political stability, increases the degree of protection of the rights, freedoms and legitimate interests of both citizens and society in general [4]. Anti-corruption policy is an integral part of Government policy, including measures aimed at achieving the following objectives: organization of the fight against corruption; the narrowing of the field of conditions and circumstances that are conducive to corruption; improving the effectiveness of the detection and punishing of corruption offences; influence on the motives of the subjects of corruption offences; creation of an atmosphere of public rejection of corruption in all its manifestations. The aim of anti-corruption policy is to reduce the level of corruption and to protect the rights and lawful interests of citizens, society and the State from the dangers of corruption. The aims of the anti-corruption policy: -prevention of corruption offences; -creation of a legal mechanism for preventing bribery of persons having public status; -creation of a legal mechanism for preventing bribery of citizens in conducting the referendum and elections of State rule and local self-government authorities; -ensuring the punishing for corruption offences in all cases covered by legal acts; reparation for the injury caused by the corruption offences; monitoring of corruption factors and effectiveness of anti-corruption policies. Combating corruption is the responsibility of all State power and local self- government authorities, institutions, organizations and officials [3]. The legal basis for the anti-corruption policy consists of the Constitution of the Republic of Kazakhstan, the rules covered by the legal acts regulating combating corruption, as well as in legal acts regulating measures of corruption preventing, suppressing and punishing. The law basis of fighting corruption in the Republic of Kazakhstan is formed in accordance with existing international standards. Anti-corruption policy of the Republic of Kazakhstan is consistent and focused, and in the society at the moment it is maturing more and more healthy forces understanding that corruption threatens the national security of the country,
33 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» hinders economic development and has a negative effect on the international image of the State. The formation of an anti-corruption culture is the activities of anti-corruption authorities within their competence aimed to preserve and strengthen the system of values in society that reflects intolerance to corruption. The formation of an anti- corruption culture is carried out by a combination of educational, informational and organizational measures. Anti-corruption education is an ongoing process of teaching and training aimed to the moral, intellectual, and cultural development and formation of active civil position containing the personal rejection of corruption. Informational and organizational activities are realized by advocacy in the media, organization of socially significant events, State social order formed in accordance with the legislation of the Republic of Kazakhstan and other measures provided by the legislation of the Republic of Kazakhstan [5]. Planning of anti-corruption measures should be based on regular monitoring, analysis, evaluation, ranking and forecasting of corruption offences, corruption factors and effective measures of anti-corruption policies. Many international and national organizations form and publish various indexes of countries corruption. Some indexes try to cover all the countries of the world. Other ones describe only a certain category of countries. Mostly such indexes are based on aggregation of a large number of various studies, and some of them are quite independent in nature. Statistics allow us to make comparisons and analyse international events on the base of specific quantitative indicators [2]. Reference: 1. Republic of Kazakhstan. President (1990-; N. A. Nazarbayev). About measures for strengthening of fight against corruption, strengthening of discipline and an order in activities of state bodies and officials: The presidential decree of the Republic of Kazakhstan of April 14, 2005 No. 1550, with amendment of 18.02.2011 [An electronic resource]//the Information system "Paragraph" / "Infotekh&service Company". – Almaty, 2013 2. Abilkairov M. R., the judge of the Supreme Court of the Republic of Kazakhstan, Kamnazarov M. M. the judge of the Supreme Court of the Republic of Kazakhstan Rakhmetov S. M., the head of the department of the criminal law ENU of L. N. Gumilev, doctor of jurisprudence, professor "Corruption as socially negative phenomenon" 3. Alaukhanov, E. Anti-corruption policy of law / E. Alaukhanov. - Almaty: For ң debit і, 2009. - 254 pages. 4. Information portal www.zakon.kz http://www.zakon.kz 5. Fight against corruption in state bodies of the Republic of Kazakhstan: education guidance. Under the editorship of E. O. Alaukhanov – Almaty: 2008
34 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
ABSHEKENOVA B.S. 3-year Student of the Jurisprudence Department Al-Farabi Kazakh National University
Scientific adviser - PhD, associate professor Ospanova D.A.
ADMINISTRATIVE JUVENILE DELINQUENCY
Individuals’s public conduct is regulated by different norms – primarily, by moral and legal regulations. Scope of these requirements, obligatoriness level differs but all of them exist to make us follow them in our actions and behavior. Noncompliance and breach of these requirements result in responsibility to the society and under the law. And this is the most critical in the sense of the responsibility. Every adult bears a full responsibility. [1.98] The academic Russian Language Dictionary explains this word as "a responsibility put on somebody on accounting for the activities and taking the blame upon themselves for any possible consequences". Therefore, the responsibility is a liability which is very close to the meaning of obligation. There are two main types of the responsibility: moral and legal. They cover all relations of an individual with other people, groups, society and the state. Primarily, an individual breaching a moral code incurs public disfavor as well as the same of the labor collective, specific people and accounts for them. Breaching a moral code leads to moral sanctions such as sense of shame, feeling of guilt for action of immorality; public disfavor, blame by colleagues in a form of negative judgement of an individual and his/her action; measures of social pressure, burlaw court. When a teenager lies, shows rudeness to friends, teachers, refuses to help their friends seeking for their aid he/she breaches moral code and bears a moral responsibility for this.. However, the norms regulating public relations also include those that are being controlled by the state represented by the law enforcement agencies such as police, court and procuratorate. These norms are set forth in special state acts. Their combinations form a law. Therefore, such norms are legal or judicial. These norms are mandatory to all, they are established and maintained by the state.[2.23] Committing offences assumes lack of distinct moral and legal principles, pro-active public stand and moral responsibility. Delict is a direct result of soullessness, lack of culture, a will to cushy life. Noncompliance with the norms is an offense. Rule of law may prohibit both actions and inactions if the latter results in hazardous public consequences. The most severe and hazardous type of offense is a crime, i.e. breaching the criminal code norms. Also the crime includes administrative and disciplinary infringements, civil, family, housing laws etc.
35 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
The violations result in a legal liability. This type of liability assumes a responsibility for breaching any legal norms. There are few types of legal liability. The Soviet law assumed a criminal, administrative, disciplinary and other type of legal liability. Let us study the administrative and juvenile liabilities. A young generation of our country is well cared. The state agencies and public organizations do everything so the young people could develop and have intellectual wealth, moral education and physical development. Special attention the state draws to the battle against juvenile delinquency. Minority are monitored by the schools, children and public organizations. Teenagers committing the crimes for which they can’t be liable due to their age under the criminal code as well as the teenagers who can’t be rehabilitated by common schools or colleges are sent to special education centers of closed type where enforcement and education measures are being applied. Such closed education centers provide with training, labor and public work. The students are under strict control and they are to follow special regime requirements. Thus, the society tries to influence on teenagers refusing to comply with life norms through educational measures by providing them with an improvement tool. However, not all teenagers appreciate and understand such humane treatment and policy of the state. [3.85] The individuals who by the time of administrative offence come to age of 16 should be liable. However, according to a general rule the measures provided in the Juvenile Commission’s Provisions should be applied to the individuals of age 16 - 18 and who committed the administrative offence.[4] They should be obliged to submit public apologies of any form. Be provided with warning. Reprimanded severely. Individuals who came to age 15 should be liable for compensation of any material damage. Individuals who came to age 16 and have an independent income should be liable for fines. Minors should be controlled by their parents or guardians or social educators as well as by labor collective or public organization. Any such minor should be admitted to bail. Minors should be sent to a special treatment and educational center. Disorderly conduct: Disorderly conduct, i.e. strong language in public places, abusive conduct or other actions demonstratively breaking the public peace and order should result in the following: - administrative charges in the volume of five to fifteen minimum wage indices (SMWI) or administrative arrest for a period of up to fifteen days. Drinking bear and drinks made on its base, alcohol and spirit-containing products or drug taking or taking any psychotropic agents in public places. 1. Drinking alcohol and spirit-containing products on the streets, squares, parks, public transport and in other public places should result in the following:
36 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
- administrative charges in the amount of one to three SMWI. 2. Taking any drugs or psychotropic agents without doctor’s prescription or taking any dopey agents on the streets, stadiums, squares, parks, public transport and in other public places should result in the following: - administrative charges in the amount of three to five SMWI. 3. Taking any drugs or psychotropic agents without doctor’s prescription or taking any dopey agents on the streets, stadiums, squares, parks, public transport and in other public places result in the following: - administrative charges in the amount of ten to fifteen SMWI. Appearance in public places in a state of intoxication results in the following: - administrative charges in the amount of one to five SMWI. Appearance of minors under sixteen in the state of intoxication as well as drinking bear and drinks made on its base, alcohol and spirit-containing products, taking drugs or psychotropic agents in public places should result in the following: - administrative charges imposed on their parents or other guardians of minors in the amount of three to five SMWI. Reference: 1. RK Constitution, August 17, 2014 2. Agapov, A.B., Administrative Liability: Studybook —М.: Statute, 2000.-198 pages. 3. Ovsyanko D. М. Administrative Law: Studybook for Jurisprudence Students (editor: Professor, Tumanov G.A.— М.: Jurist, 1996.-225 pages 4. RK Code On Administrative Offences, July 5, 2014
BAIMAGAMBETOVA A. T. 3rd year student of the law faculty Al-Farabi Kazakh National University
Scientific adviser - candidate of law, associate Professor Ospanova D. A.
ADMINISTRATIVE LIABILITY FOR CORRUPTION OFFENCES
The formation and establishment of the Republic of Kazakhstan to the independent stage of development as an independent, democratic and legal state corruption is a particularly dangerous phenomenon. It undermines the credibility of democratic institutions of the state, slows down the progress of economic reforms. Moreover, corruption violates the legal rights and interests of citizens, negatively affects the moral state of society, which ultimately undermines trust of citizens to the government. In accordance with the Law of the Republic of Kazakhstan from November 18, 2015 No. 410-V "On combating corruption" corruption this is an illegal use of
37 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» persons holding a responsible public office, persons authorized to perform public functions, persons equated to persons authorized to perform state functions of the officials of their official (service) powers and related opportunities to obtain or retrieve personally or through intermediaries of property (non-material) benefits and advantages for themselves or third parties, a is equal to the bribery of these persons by providing benefits and advantages.[1] "The fight against corruption will become more consistent and systematic," writes Nazarbayev.[2] He noted that the basis for this will be "improving the efficiency of the state apparatus", which adopted a new law on civil service, created the Ministry of public service, the structure of which the national Bureau for anti- corruption. However, corruption as a kind of social phenomenon has deep historical roots and is international. The first mention of corruption offenses (bribery) refers to the Laws of king Hammurabi (1792-1750 BCE).[3] According to expert estimates, non-governmental organization Transparency International (TI) in the international rating of corruption of Kazakhstan for 2015 is 123. The corruption perception index (CPI) is compiled on the basis of the opinions of citizens about their perception of corruption in the countries in which they live. Most free of corruption country experts called Denmark, placing it at the top of the ranking of States in terms of corruption perception. Among the dozen countries with the worst rate of corruption and transparency CPI — Iraq (161st place).[4] Improvement of national legislation should be based on the study of international experience, as in many other countries in standards clearly established the mechanism of attraction of officials to administrative responsibility for committing corruption offenses. For example, French law focuses more administrative, not criminal sanctions. If this is pursued the main goal - the prevention of "improper connection of personal financial interests and the performance of official functions of a public servant"[5], whereas in our country the norms of the administrative legislation does not give such value. Perhaps the improvement should occur not only in the study of international experience, but also through the introduction of new compositions of administrative offences in the legislation. The beginning of drastic measures for combating corruption was launched when the Republic of Kazakhstan has signed the UN Convention against corruption of 31 October 2003, with subsequent ratification may 4, 2008[6]. The next step was the adoption, on 18 November 2015 the Law "On combating corruption", which for the first time at the legislative level cemented the notion of a corruption offense. Having signs of corruption illegal guilty act (action or inaction), for which the law establishes administrative or criminal liability referred to corruption offenses. In addition, the adopted Law establishes system of measures of counteraction of corruption are considered the subjects of combating corruption and their powers and elimination of consequences of corruption
38 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» offences. As you know, at the time of independence in 1965, Singapore was a country with a high degree of corruption. Tactics for its reduction were based on the performance of a special anti-corruption program of the Ministry of Finance, which included a range of measures such as: - regulation of the actions of officials and their rotation to avoid the formation of stable corruption ties - ensuring of confidentiality to prevent leaks of important information, which can be used for corrupt purposes, - simplification of bureaucratic procedures, - establishment of the rule of law and the tightening of legislation, - increase the independence of the judiciary (with high salaries and privileged status of judges). The code of administrative offences of the Republic of Kazakhstan from 2014 Chapter 34 provides 6 components of administrative offences of corruption[7]. It is concluded that the existing mechanism against corruption in Kazakhstan is flawed and contains a number of shortcomings, namely: the big alienation of the state and its authorities from the society and citizens; the lack of effective legal frameworks; inadequate work of controlling and law enforcement agencies; weak legal culture of citizens. In addition, the experience of combating corruption in foreign countries indicates that episodic and individual measures cannot effectively counteract this social evil of our time. To fight corruption as a complex socio-legal problem, you need a combination of use a variety of measures and means, uniting the efforts of the state and society, as well as anti-corruption policy in the civil service and effective mechanism for its implementation. Reference: 1. The law of the Republic of Kazakhstan from November 18, 2015 No. 410-V "On combating corruption" (with changes and additions as 06.04.2016 g) the Constitution of the Republic of Kazakhstan. – Almaty: YURIST, 2015. – 32 p. 2. The Article Nursultan Nazarbayev.A. "The plan – the Path to the Kazakhstani dream" 6 Jan 2016 3. The great Soviet encyclopedia. - T. 27. - M., 1977. 4. http://rus.azattyq.org/a/transparency-kazakhstan-index/27514143.html 5. A conflict of interest in the civil service // Legal Advisor // ATP "Consultant Plus". - http://www.jk.ru/analiticheskaja-informatsija/konflikt- interesov. 6. The law of Kazakhstan "On ratification of the UN Convention against corruption", dated 4 may 2008 No. 31-IV LRK. 7. Code of the Republic of Kazakhstan on administrative offences dated 5 July 2014, No. 235-IV (with changes and additions as 26.07.2016)
39 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
BAINAZAROVA D.S. 3rd year student of the law faculty, Al-Farabi Kazakh National University
Scientific adviser - candidate of law., associate Professor Ospanova D. A.
ADMINISTRATIVE LIABILITY FOR TRAFFIC ACCIDENTS
Today world great importance has the question of road safety. This problem affects the inherent social and political situation of the society. Road traffic injuries in the Republic of Kazakhstan, as well as in other countries of the world, is health and social urgent problem, not only because of the high rates of death on the roads, and heavy social consequences for the victim and society. Estimated road expert of the TRACECA project (Transport corridor Europe-Caucasus-Asia) "road Safety II", among the countries of Central Asia Kazakhstan has the highest mortality rate for traffic accidents — 30.6 deaths per 100 thousand inhabitants, and the best statement of the Republic of Uzbekistan to 11.32 persons per 100 thousand inhabitants. When comparing mortality rates on the roads of Kazakhstan (30.6 deaths per 100 thousand inhabitants) are significantly higher than the global level, which belong 18.8 deaths. Also data provided by UNESCO, these days every year due to accidents in the world are dying to 350 thousand people, about 10 million people temporarily lose their health or become disabled. The problem of reducing road traffic injuries was widely reflected in the message of the President of the Republic of Kazakhstan "Build the future together!" where priority is the development of transport medicine with the provision of helicopter air medical service, creation of mobile medical complexes, medical and rescue points on emergency hazardous sections of roads of national significance; and in the State program of healthcare development for 2011-2015 "Calamitate".[1] In Kazakhstan, for 12 months of 2015 was recorded about 18 890 traffic accidents[2]. Despite the fact that, according to the Ministry, in 2015 in the Republic of Kazakhstan in comparison with last year the level of road accidents decreased by 6%, the number of accidents remain high. According to statistics, about 29.4 percent of all registered road traffic accidents have on the city of Almaty. This figure is the worst among the cities of Kazakhstan. In accordance with the Law "On state legal statistics and special accounts" by the Committee on legal statistics and special records only traffic accidents that caused death or injury. Also the causes of the accident are not changed, they mainly occur due to gross violations of traffic Rules. [3] Road traffic crashes not only affects the economy of Kazakhstan, but also endanger the life and health, like a particular person and the whole society. Road accidents affect national security and public safety of the country, therefore, this issue is a national and mandatory. One of the important causes of accidents road traffic accidents are conditions such as: time of day, the status of the village, street
40 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» category, the value of the road and its category, plan and profile of road, condition of roadway lighting while driving, weather and other. Official statistics on road traffic accidents on the following: road traffic accidents often occur in the daytime, in a large city or village, street or local road or at the intersection. The most often, accidents occur when the roadway is either wet or Packed snow. Special attention should be given to such conditions as uneven road surface (more than half of accidents take place for this reason) and its low quality. Regardless of any subjective and objective circumstances, the safety of public relations in the field of traffic depends on level of legal culture of participants of traffic, the effectiveness of the current administrative legislation, compliance with the Rules of the road. According to N.. Nazarbayev, on the security Council considers the overall problems of road accidents, which killed a huge number of people. Among the reasons for this is the poor roads, quality of vehicles and repairs, and that the rights just sold to people who do not know how to ride. The legislation of Kazakhstan regulating the activities of road accidents consists of: the Code of administrative offences of RK of 2014[4], Rules of the road[5], the Resolution of the Government of the Republic of Kazakhstan dated 13 November 2014 "On approval of traffic Rules, Main provisions for the admission of vehicles to operation, the list of operative and special services, transportation equipment which is subject to special light and sound signals and painting in special color schemes"[6].Normative legal acts, regulating this area, reduce the number of accidents. From our point of view, the legislator ought to consider in detail the problems of administrative responsibility for conditions involving emergency on the roads, which entail accidents. The special part of Cao provides more than two hundred compositions of administrative offences. For example, Chapter 30 of the administrative code includes seventy-six components of administrative offences in the field of traffic. In turn, the objective side of an administrative offense under article 594 of the administrative code, violations are defined by intersections (p. 13 Rules of the road code). However, both composition and other compositions included in Chapter 30 of the administrative code, in General, establish a uniform procedure for traffic on the entire territory of the Republic of Kazakhstan (clause 1.1 of the Rules of the road code). Thus, maintaining this order is not that other, as a legal obligation of all road users; the breach of a legal duty is an additional sign of a particular administrative offense. Additional features allow to correctly qualify the actions of the guilty in committing an administrative offense. The rule of law in the application of administrative liability is the result of a thorough examination of the particular situation, taking into account characteristics of perfect accidents. 2016 amendments to the Law "On road movement", the document about the changes and additions in the legislation of Kazakhstan has paid great attention to the audit of road safety. About a dozen amendments to the draft devoted to this topic.
41 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Many adjustments and waiting for legislation on transport. Changes and additions mainly relate to the permits for the carriers, as well as a number of concepts and wording. The main objectives of the adopted 29 Dec 2014 law of the Republic of Kazakhstan "About modification and additions in the Code of the Republic of Kazakhstan on administrative offences" were: reduction of traffic accidents on the roads of the Republic, reduction of the number of victims in road accidents tightening responsibility for violation of traffic Rules. The legislator increased the size of penalties for violations of traffic Rules were also amended on the bringing to administrative responsibility for the offenses. Of course, such changes will affect the situation in the field of traffic in a positive way. The legislator also introduced the requirement of road lighting all moving vehicles with headlights (or fog lights, daytime running lights) in daylight. This requirement is also an important and correct decision to prevent road accidents. The violation by the participant of the road traffic regulations, entailed the creation of an emergency situation, that is, forcing other road users to abruptly change speed, direction of movement, entails a fine in the amount of ten monthly calculation indices. Undoubtedly, such conditions as road condition, road condition, road illumination affect the occurrence of road accidents. But at the same time, the above reasons and the conditions for the creation of a traffic accident are only part of the circumstances and events that in one way or another can contribute to its occurrence. In addition, traffic accidents are the specifics of the development, defined: short-term transience and events; causal relationships, complexity and intractability of the mechanism of the accident; shortage of investigative information; opposites of the interests of drivers and pedestrians (victims), witnesses, and witnesses interest. It must be remembered that the underlying causes and conditions create a situation in which can happen a traffic accident is traffic violation as a driver, pedestrian, and other road users. Reference: 1. The Message Of The President Of The Republic Of Kazakhstan N. Nazarbayev to people of Kazakhstan. January 28, 2011 2. https://vlast.kz/strana/15263-kazahstan-v-cifrah-statistika-za-18-anvara- 2016-goda.html 3. The law "On state legal statistics and special accounts" 4. The code of administrative offences of Kazakhstan from 2014 5. The rules of the road Republic of Kazakhstan from 2015 6. Resolution of the government of the Republic of Kazakhstan dated 13 November 2014 "On approval of traffic Rules, Main provisions for the admission of vehicles to operation, the list of operative and special services, transportation equipment which is subject to special light and sound signals and painting in special color schemes"
42 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
BAKHYTZHAN D. 4th year student of the Faculty of Law Al-Farabi Kazakh National University
Scientific adviser - master of laws Useinova K.R.
LEGAL STATUS OF WOMEN IN KAZAKHSTAN
Gender (English gender, from the Latin genus «gender»..) - It is a given society a certain standard male or female behavior. These are the aspects of male and female, are defined primarily by society as a certain social norm. Sometimes the term "gender" is used as a synonym for "male and female", meaning any mental or behavioral characteristics associated with masculinity and femininity and presumably distinguish men from women. With this approach, there are always two genders - male and female. In modern science, the concept of sex and gender are not distinguished. It is used to refer to both men and women. Gender man is the foundation and the first cause of social division between men and women. In carrying out various studies it was reported that, between men and women far more similarities than differences. You can come to the conclusion that sex is not the main factor in the differences of social roles, available in different societies. Gender is used by society as a social model of women and men that determines their position and role in society. Gender System - is the institutions, behavior and social interactions, which are prescribed in accordance with the floor. Gender system are determined in each society differently. But in most cases, it is manifested by the fact that men are considered to be the primary and dominant and women as secondary and subordinate. Gender inequality. It is also an integral part of any society is the inequality. Inequality- form in which separate individuals, social groups, strata, classes are at different levels of the social hierarchy and have unequal life chances and opportunities to meet the needs. Gender inequality - social characteristics of the device, according to which different social groups (in this case - men and women) have a persistent differences and the resulting unequal opportunities in society. Gender inequality has been realized by researchers in the social sciences and humanities through the emergence of the concept of gender in 1980 as the basis of a feminist concept. Conceptualizing Gender shed light on the process of social construction of masculinity and femininity as the oppositional categories with unequal social value. Since the active suppression of the similarities and differences in the design demands of social power, domination is the central problem in the theory of gender. A variety of roles, relationships, attitudes lead to differences between people in any given society. The problem boils down to the fact that some - some way to streamline the relationship between the categories of people, differing in many aspects.
43 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
What is inequality? In the most general form of inequality it means that people are living in conditions where they have unequal access to scarce resources, material and spiritual consumption. In sociology, one of the first explanations of inequality given Emile Durkheim in his work "On the division of social labor." The author's conclusion is that the different activities are evaluated differently in society. Accordingly, they form a hierarchy. In addition, the people themselves have a different measure of talent, skills, etc. The Company must ensure that the most capable and competent to perform the most important functions..; in turn, determines the various awards. Within the framework of structural functionalism developed the concept of stratification of American sociologists K. Davis and W. Moore. Inequality in this case acts as a natural method of self-regulation and the survival of the company, its organization, as an incentive to progress. Thus, society is not just differentiated but hierarchically structured on the principle of "superior" - "below." In considering the problem of social inequality is fully justified on the theory of socio - economic heterogeneity of labor. Fulfilling qualitatively unequal types of labor, to varying degrees, to satisfy social needs, people sometimes find themselves involved in economic heterogeneity of labor, because these types of labor have a different assessment of their social utility. This socio - economic heterogeneity of labor is not only a consequence but also the cause of assigning some people power, property, prestige, and the absence of all these signs of advancement in the social hierarchy of others. Each group develops its own values and norms, and rely on them, if they are placed in a hierarchical manner, they are social layers. The status of women in Kazakhstan. Gender roles and define the differences and the differences in how the transition has affected men and women. Social and economic situation of the majority of women worse than men, which means inefficient use of human capital. Gender development index Indicators (GPI) in the transition economies of Eastern Europe and the CIS is slightly higher than in other emerging economies. However, these successes are far from satisfactory. Kazakhstan, although it is the first among the Central Asian countries, behind Russia and Eastern Europe. The concern is that Kazakhstan is losing its position in the rating games. In Soviet times, it was carried out on an incredible scale experiment on the transformation of family relations and social change in the status of women. Many traditions, hallowed customary law, were not simply declared to be "harmful", but also banned at the state level. The Soviet government announced that a ban on such "harmful remnants of the past," as dowry, polygamy, “amengerstvo”, underage marriages. Soviet government declared the gender equality of rights, opportunities and responsibilities, and one of the first in the world to grant women equal rights with men voting rights. Political changes radically affected the status of women, their role and occupation in society. The
44 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» woman changed the terms of their rights and responsibilities, replacing the original terms of its active social functioning - the house - the male opposite - the outside world. As a result, during the Soviet era a dual situation in Kazakhstan. On the one hand, the state encouraged the emancipation of women, on the other hand - at home and kept the traditional ethical norms, greatly curtailed the state ban, but continue to exist on an informal level, especially in rural areas. It is for Central Asia is characterized by a profound differentiation in the position of urban women and rural women. Women who live far from the cities, are far more dependent on "ancestral traditions" than urban women. Following the European way of life made it possible for the social advancement of women, meant to improve the social status that is largely (in Soviet times) was determined by ideological criteria. But at the same time, a departure from the tradition seen in society as a departure from national traditions, as the loss of ethnic identity. There is a conflict of two standards of conduct. And often the choice is not dependent on the inner convictions of man, but from external circumstances. The legal status of women in Kazakhstan is poor, and most of the Kazakh laws on women's rights, according to national experts are not fully compatible or in some cases, is contrary to international treaties and conventions to which the country has acceded and ratified. Many lawyers believe that the national legislation of Kazakhstan should be brought into line with the ratified international legal instruments, including against women. While this Parliament work in its entirety is not done, which negatively affects the enjoyment by women of their rights, freedoms and responsibilities. Legislation of the Republic of Kazakhstan can significantly affect the social development of women, to prevent deterioration of the trends of its social situation - because the legal status of women in the country represents a certain level of the state of society. In the Republic of Kazakhstan legislation social rights of women are reflected in the Constitution of the Republic of Kazakhstan, the laws of marriage and family, labor, housing relations, on pensions, on social benefits, in the criminal and criminal-executive legislation, and other laws and regulations. At the heart of the Republic of Kazakhstan legislation from a gender perspective is the principle of equality of rights and opportunities for men and women in all spheres of society. The prohibition of discrimination on grounds of sex is enshrined in Article 14 of the Constitution. Particularly important for the advancement of Kazakhstani women and children is the ratification of the accession of the Republic of Kazakhstan and the UN Convention "On the Elimination of All Forms of Discrimination against Women" of 18 December 1979 (Law of RK of 29 June 1998), "On the Nationality of Married Women" of 29 January 1957 "on the political Rights of women" of 20 December 1952 (Law of the Republic of Kazakhstan dated December 30, 1999) The gender dimension of the division of society. Actual problems of sex (or
45 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» gender) division of labor, by which we mean the distribution of employment between women and men, based on customs and traditions, formally or informally embodied in practice and in the minds of people. The gender division of labor, retains a strong position: the world each branch is characterized by the dominance of either women or men. Rarely where you can meet the equal participation of both sexes. Even in highly urbanized countries, there are purely male and purely female profession (for example, women predominate in the composition of nurses). Stable trend of employment of men and women strictly defined professions, industries and official positions referred to in the scientific literature of gender occupational segregation (or occupational segregation by gender). Although quantitatively the participation of women in gainful employment is constantly growing, there remains an obvious gender inequalities in relation to employment status and the quality of jobs for men and women. Women are often employed part-time and temporary places, while men are employed in well- paying and permanent jobs. Differences in unemployment rates between men and women may also serve as an indicator of gender inequality in the labor market. In addition to gender differences in the structure of working hours, the additional factor of inequality is the fact that men and women perform different jobs, and so-called "female" jobs are considered less valuable in terms of qualifications and awards. Thanks to the development of new methods of job evaluation is often that the place occupied by women, in fact, requires skill, responsibility, ability to solve more complex problems, which are similar to those which are necessary for men to engage in high-paying jobs. Men and women are not only occupy different jobs. There are also differences in how they are represented in the hierarchy of positions within individual professions. Even in occupations dominated by women, men are usually more qualified, responsible and better-paid positions. For example, the majority of teachers are often women, and senior administrators in the teaching profession - men. Similarly, in the health sector, doctors and hospital managers are very often men, while the majority of nurses and staff - women. This is usually referred to as "vertical gender segregation." Promoting women up the professional ladder to management and more responsible positions is difficult because of institutional barriers and attitudes. With regard to this kind of vertical segregation is generally used the term "glass ceiling"; crucial importance for employment of managerial positions at the same time depends on the recognition of factors such as the level of skills, wages, the nature of the responsibility of this post, its status and powers. Discrimination against women Societal discrimination against women (from the Latin word - discriminatio - distinction) from the point of view of Sillaste G.G. is the restriction or denial of rights based on sex (or gender) in all spheres of society: employment, socio-economic, political, spiritual, , family and
46 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» household. Social discrimination leads to lower social status of women, and is a form of violence against her person, and, therefore, a threat to its security. As Socrates said: "Three things can be considered happiness: you're not a wild animal, you're Greek and not a barbarian, and that you are a man, not a woman." A necessary prelude to gender equality is the overcoming of all forms of prejudice to the rights and interests of women especially in the workplace. The idea of equality between men and women, their equal opportunities, in our view, lies in the fact that in their intellectual and physical potential of a woman in no way inferior to men. For her, there is no fundamentally closed, inaccessible areas of mental and physical labor. No law should not forbid a woman to engage in this or that case, develop a particular profession. Her sacred right - complete freedom of personal choice of types and forms of activity for self-realization. But discrimination is "the weaker sex" and remained under the Soviet regime. For women, it has been closed office in the armed forces and other security agencies (with the exception of a number of technical or auxiliary professions). They were legally denied access to "hard" and "harmful" production, which completely eliminates the freedom of personal choice. The forms of social discrimination against women, depending on their areas of activity can be different (eg, unmotivated dismissal or sexual harassment on the part of the chief). According to its type discrimination can be both violent and non- violent. In any case, the basis for discriminatory acts is personal violence are women. In the history of mankind is divided into three main types of gender culture: 1. Matriarchy; 2. Patriarchy; 3. Biarhat. Analysis of the development of gender relations of different ages suggests that the formation of gender culture is strongly influenced by the installation of consciousness and gender stereotypes that are being realized in people's behavior, in turn, have a significant influence on the formation of social reality. Gender stereotypes play the role of program behavior, which are laid over the historical time in the program of heredity. Gender culture, folding and fixed in a concrete experience of generations passed, and the descendants through inheritance process is perceived as something natural, natural. With regard to the Republic of Kazakhstan -The need to continue the process of accession and ratification by Kazakhstan international UN and ILO conventions on the rights of women and children. Particular attention, in accordance with the recommendations of the Committee on the Elimination of Discrimination against Women on the initial report of the Republic of Kazakhstan should be given to the real intended use of the Women's Convention in the courts, the adoption of laws on equal opportunities, domestic violence, to develop special strategies to improve the socio-economic situation of rural women.
47 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Reference: 1. I.V. Stasevich "status of women among the Kazakhs: tradition and modernity" 2. I.O. Turin "Gender aspects of employment and management" 3. Abubikirova N.I. "What is 'gender'?" 4. Ch. Ch. Valikhanov Collected works in five volumes 5. Sillaste G.G. "Social discrimination against women as an object of sociological analysis.
BAKHYTZHANOV R. undergraduate of 1 course of law department Al-Farabi Kazakh National University
Scientific adviser - Ibrayeva A. S.doctor of jurisprudence, professor Department of the theory and history of state and law, constitutional and administrative law
LAW-ENFORCEMENT FUNCTION OF THE MODERN STATE
Any state is created by the people to assign to them function of the organization of self-defense. The choice of the form of government, political regime happens in dependence of any geographical, climatic, historical conditions of feature. The state represents set of the people who united in a single whole under aegis by the established general law and created degree of jurisdiction competent to settle the conflicts between them and to punish criminals. From all other forms of collective (family, dominical possession) state differ in only one embodies political power, i.e. the right for the sake of the public benefit to create laws for regulation and preserving property, and also to use force of society for performance of these laws and protection of the state from attack from the outside. Declaration in 1991, of state independence of Kazakhstan delivered a number of challenges, among them - the formation of state structures and the creation of a legal framework for political and economic reforms [2]. Purpose of the state, its role in life of society is expressed in its functions. Function in the theory of the state and the right means the direction, object of activity, this or that political and legal institute, content of this activity, its providing. The main activities of legislative, executive and judicial authority in the constitutional state have the general nature. Their paramount purpose is ensuring harmonious activity of society. Need of the solution of common solutuions sets certain tasks which enrollment and maintenance are various in preindustrial, industrial and post-industrial societies for the state. Thus, functions of the state are main directions of activities of the state for the solution of the main objectives facing the state at this or that stage of its
48 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» development and represent means of their realization. Law-enforcement function can be classified by the following bases: 1) depending on the orientation of the purposes and tasks which solved by the state – internal function; 2) on duration of their existence – constant function; 3) on importance and the social importance of these or those directions of the state activity – the main function; 4) proceeding from the principle of division of the authorities – it is carried out by bodies of legislative, executive and judicial authority. Law-enforcement function of the modern state is one of the major, because it first of all provides survival, or preservation, societies as integrity. In this regard it is possible to agree that the purpose of the state is protection of the objective right, i.e. providing law and order. Law-enforcement system of the Republic of Kazakhstan, being reflection of the legal policy which realized in our country is an important link of creation of the constitutional state conforming to the international standards established by the world community. During the modern period this direction of social development of the republic is characterized by the greatest reforming at implementation of legal reform [4]. The evident certificate to that occurring in the considered sphere of change. So, the Concept of policy of law of the Republic of Kazakhstan accepted in 2002 among others determined the main directions of development of law-enforcement system of the country for the period till 2010. On August 24, 2009 the Presidential decree RK approved the new Concept of policy of law of the Republic of Kazakhstan for the period from 2010 to 2020, for last years is accepted a number of the major legal acts promoting forward development of the state and public institutes providing sustainable social and economic development of Kazakhstan. In this document it is stated that for years of independence of Kazakhstan it developed and in general the law-enforcement system meeting needs of the democratic and constitutional state effectively functions, however law-enforcement activities of the state require the further development and enhancement [3]. Division of forms of implementation of the state functions into legal and organizational doesn't mean derogation or especially denial of a paramount organizing role of the right in public life. Legal forms always are organizational. However not all organizational forms - legal. Legal forms of implementation of the state functions are understood uniform in the external signs (nature and legal consequences) as the activities of state bodies connected with the publication of legal acts. Accordingly, the legal forms of realization of the state's functions include law- making and law enforcement, which, in turn, divided into operational and executive and law enforcement. Law-enforcement activity is a form of implementation of functions of the state by means of imperious operational work of public authorities on protection of rules of law from violations, protection of the subjective rights granted to citizens and
49 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» ensuring performance of the legal duties assigned to them. As a result, law enforcement issued by acts of law (resolutions of investigators, protests and representations of prosecutors, sentences and decisions of the courts, etc.). The specificity of these acts serve the purposes of the prevention of crimes and other offenses, redress, implementation of legal liability the person who committed the offense and, therefore, the protection of individual rights, the protection of citizens and the interests of society. Net actual or organizational forms of implementation of its functions which consist in the activities of the state, uniform in the external signs, which aren't involving legal consequences differ from legal forms of functioning of the state. At the same time forms of organizational, actual activities anyway are implemented within a certain legal settlement, on the basis of fulfillment of requirements of legality [5]. Thus, the question of a humanization of criminal policy of the republic, along with use of functional powers of law enforcement agencies towards release them from unusual functions, is one of the priority directions its realization at the present stage. A circle of law enforcement agencies and institutions and their competence and tasks constantly change. Time and experience inevitably introduce the amendments. The president, the Parliament and the Government of the country work on improvement of law-enforcement system, look for the most optimum solutions of the questions connected with ensuring stability of precepts of law [1]. Reference: 1. Theory of the state and right. A course of lectures under edition of professor 2. M. N. Marchenko. 1996 3. Matuzov N.I. Theory of the state and right. A course of lectures. 1995 4. "About the Concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020" the Decree of the President of RK from 8/24/2009 N 858//zakon.kz 5. Vengerov, А.B. Theory of the state and right: The textbook for law institutions. 3rd prod. – М.: Jurisprudence, 2000. - 528 с. 6. Bases of the state and right of Kazakhstan, Sapargaliyev, Almaty city, "Atamurа", 2000 pages 27
BOGOMOLOV D.V. student of 3-rd year of law school, Al-Farabi Kazakh National University
Scientific adviser - PhD, associate professor Ospanova D.A.
EVIDENCE IN ADMINISTRATIVE COURT PROCEEDINGS
Evidence Issues in administrative proceedings, and in other legal areas are relevant because the relationship in the modern world is becoming more new character.
50 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Proofs are central to a comprehensive consideration of the case in the administrative proceedings and to make a lawful and substantiated decision. In theory, administrative law under the subject of proof refers to a set of legal facts, which must be installed to solve the case on its merits. The essence of the proof of the subject lies in the fact that, if necessary for the resolution of the case legal facts not included in the item of evidence, it entails the imposition by the court illegal and unjustified decision. Proofs are central to a comprehensive consideration of the case in the civil proceedings and to make a lawful and substantiated decision. [1] As the Zhetpisbayev BA no evidence for the judge, body (official), considering the case on an administrative offense does not have a predetermined force. You can not use as evidence the information obtained via the use of violence, threats, deception, hard and degrading treatment; using face misconceptions involved in the process, with respect to their rights and obligations arising from unexplained, incomplete or incorrect explanation of it; in connection with the procedural action by a person not entitled to carry out the proceedings on the case; in connection with participation in the proceedings the person subject to challenge; in violation of the order of procedural actions; from an unknown source; with the application of methods in the course of proof contrary to current scientific knowledge. Each piece of evidence shall be assessed from the point of view of relevance, admissibility, reliability, and all the evidence together - sufficiency for the resolution of the case. [2, p.22] According st.765 CAO., Evidence in the case of an administrative offense are obtained legal way the data on which the established order the judge or the body (official), in charge of the administrative proceedings, establishes the presence or absence of the act containing all the signs of an administrative offense, act or omission of an act by a person against whom the proceedings are conducted, guilt or innocence of the person, as well as other circumstances relevant for the correct resolution of the case. [3 st.765 Code of Administrative Offences] Evidence established: explanations of the person brought to administrative responsibility; the testimony of the victim, witnesses; opinions and expert testimony, expert; physical evidence; other documents; Protocols on administrative violations and the protocols of procedural actions provided by this Code. When considering the materials on administrative violations as evidence it can be used data obtained from the use of science and technology. Due to the lack of professional methods to the scientific analysis of the process and the means of proof in cases of Administrative Offences does not allow to assess the effective implementation of the assessment and application of its results in practice. Therefore, consideration of the matter of science and practice is now very important.
51 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Evidence must be declared inadmissible as evidence if they were obtained in violation of this Code, which, through deprivation or restraint legally guaranteed rights of participants in the proceedings or in violation of other rules of the process affected or could affect the reliability of the evidence inadmissibility of the use of evidence as evidence It is set by the judge or by the body (official), a leading manufacture in the case of an administrative offense, on his own initiative or at the request of participants. If the evidence is insufficient, the court or the authority reviewing the case, can offer the participants of the process to provide further evidence or collect them on their own initiative. In this circumstance, recognized by the court, the body (official) authorized to consider administrative offense, generally known need not be proved. Also, there are circumstances be regarded as established without proof if under the due process of law is not established to the contrary, namely, correct common in modern science, technology, art, craft research methods; knowledge of the face of the law; knowledge of his or her official and professional duties; no special training or education the person has not submitted in support of the availability of the document, and does not have a school or other institution where it received special training or education. Evidence confirming the circumstances relevant to the case, in particular, are the data contained in the protocols provided by the Administrative Code (the protocol on administrative offense, personal inspection protocol inspection items, documents and seizure protocol and other things.) [4] After committing an administrative offense official commencement of the administrative process, must take measures to gather evidence guided by such methods as the interrogations, examinations, examination and other procedural actions established CAO, and in compliance with the rights contained therein. Evidence confirming the circumstances relevant to the case, in particular, are the data contained in the protocols provided by the Administrative Code (the protocol on administrative offense, personal inspection protocol inspection items, documents and seizure protocol and other things.). Based on the above, proof in cases of administrative offenses are directed to ensure that through the use of special means (eg, technical expertise) to achieve a situation in which the issue of bringing the perpetrator subject to administrative istrative liability will be settled in connection with the confirmation of the reason the appointment of administrative punishment. Reference: 1. http://infozakon.com/news/court/4551-dokazatelstva-i-poryadok-ih- predstavleniya-v-grazhdanskom-processe.html 2. Zhetpisbayev BA - Administrative process: proceedings on administrative violations in the Republic of Kazakhstan. - Almaty 2006. 3. Code of the Republic of Kazakhstan on administrative offenses on July 5, 2014 № 235-V (as amended as of 26/07/2016 was)
52 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
4. Normative Resolution of the Supreme Court of RK №18 from 26.11.2004. "On some issues of application of the law by the courts of Administrative Offences", paragraph 12.
DANIYAROV S. Master of 2 course of law faculty al-Farabi Kazakh National University
Scientific adviser - PhD, associate professor K.R. Useinova
QUESTIONS OF EMERGENCE OF THE KAZAKH STATEHOOD IN WORKS OF THE “ALASH” PARTY LEADERS
Important place in state and legal views of the Kazakh thinkers of the past including the Alash party leaders are occupied by a problem of education of the Kazakh nationality and the first Kazakh khanate. For the purpose of comprehensive illumination of this problem we will consider it in the context of the comparative analysis of various concepts of an origin of the Kazakh statehood. All these concepts can conditionally be divided into three groups. One of them appeared to the second half of the XIX century, the second are the theories formulated by A. N. Bukeykhanov and his contemporaries, the third gained the distribution to the modern period as reflect opinions of modern scientists. A. N. Bukeykhanov, one of the first, raised a question of identity of Kazakhs and Turkic peoples. According to the scientist, Kazakhs were descendants of Turkic tribes. Works of the scientist, and also that fact that, having examined scientific work of Zacky Velidi Togan "History a turkic ", A. N. Bukeykhanov convinced the author of need to include in this research of also Kazakh khans testify to it. Opening an origin and contents of the term "Kazakh", A. N. Bukeykhanov wrote the following: "The population of steppe areas "Cossack" calls himself. There are many fantastic explanations of this word" [1, page 48 - 49]. Further he brings one of them: "Was parched with thirst of the patient, left to the mercy of fate, the colonel Kopchi-Kadyr asked to send heaven to him the fastest death. But heaven took pity: the genius of kind spirit a feather, in an image of a white goose the Cossack went down; the goose flew behind water, gave to drink the sufferer and remained to live with him. Descendants of this marriage received a name the Cossack" [1, page 48 - 49]. It should be noted that the version offered A. N. Bukeykhanov belongs to the linguistic direction is the basis it as the legend of Kopchi-Kadyr. S. D. Asfendiyarov about it noted that there are various explanations of the word "Cossack". So, there are explanations connected with Islam religion. These explanations – an undoubted fruit of fabrications of the Kazakh clergy. For example, the word "Kazakh" is taken as derivative of the word "gazi-hak" that
53 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
"the fighter for true belief" means. Try to connect the word "Cossack" with separate conformable names of the people living once in the territory of Kazakhstan also: "kazhlag", "koman", "kosog", etc. Attempts to define, a semantic word meaning "cat", with the purpose to prove that Kazakhs occurred from serfs, criminals and so forth, the areas running from settled, made habitable were made. The last explanation pulls together the word "Kazakh" with the Russian word "Cossack" which designated the peasants running from serf servitude ("Cossacks"). The terms "Cossacks", "kazakovat" were used in the XV- XVI centuries in correspondence of the Moscow tsars, Crimean, Kazan khans - in sense of military people, the outlaws keeping borders of these states. In Russian, and also the Ukrainian life the word "Cossack" or "Cossack" designated the free person, the robber, "thief" ("thieves' Cossacks", i.e. the Cossacks who were not submitting to the imperial authorities of the Moscow Russia). According to S. D. Asfendiyarov, "the question of an origin of the word "Kazakh" and of an origin of the Kazakh people has to be resolved not by abstract linguistic interpretation, and by the concrete historical analysis" [2, page 89]. Trying to give the interpretation to an ethnonym "Kazakh", M. Dulatov notes that in the history of the people near the term "Kazakh" remained also other name – Alash [3, page 308, 309]. The prominent researcher of life and creativity Zh. Akbayeva Mukhtar Kul - Muhammad notes that "according to Zh. Akbayev in historical culture the word "Kazakh" is used in sense "the soldier of army, chirik, the military (military estate)" [4, page 124]. As the proof, excerpts from different historical documents are given. In particular, the Kazan khan Abdullatif wrote the grand duke Vasily, promising not to let "to be at war the Cossacks"; the Uzbek khan Ibak since 1000 "Cossacks and the Nogai murza with 15000 Cossacks attacked the Golden Horde khan Ahmed and killed him", etc. M. Kul - Muhammad emphasizes that Zh. Akbayev took these data from M. Tynyshpayev who on the basis of the given materials draws a conclusion that the population of the khanate Girey and Zhanybek was called Kazakhs. Moreover, the researcher points that M. Tynyshpayev not critically apprehended Velyaminov's statement - Zernov that in the XV-XVI centuries Kazan, Crimean and other simple tatars were ordinary called Cossacks and they called themselves Cossacks" [4, page 124-126]. M. Kul - Muhammad notes that "Kazan, Crimean and other simple Tatars " could never call themselves Cossacks as the people consist not of one "simple" people, but also of other social groups. If the simple tatars living in different places called themselves "Cossacks", so the speech could go not about all people, and about breeding layers which had common features. Thus, the facts which are carried out by M. Tynyshpayev arise upon a certain conclusion: it is not about all population, and about soldiers, about military estate. According to M. Kul - Muhammad, M. Tynyshpayev does the conclusion which did not follow from the given materials in any way. In particular he writes: "From the provided references clearly it is
54 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» visible that along with existence of the Kazakh khanate under the rule of Dzhanybek's house all people of the former Golden Horde from the Crimea and the Caucasus to Siberia were called Cossacks" [4, page 124-126]. Absolutely other conclusions as M. Kul - Muhammad notes, Zh. Akbayev does. Bringing, documentary historic facts Zh. Akbayev emphasizes that all bodies at the former people of the Golden Horde from the Crimea and the Caucasus to Siberia and Mogulistan were called Cossacks, but not people per se. According to Zh. Akbayev with Zhanibek and Girey to Zhetysu there arrived only soldiers, i.e. Cossacks. Only after certain time, in process of stay into this political association of the civilian population of their other uluses and expansion of its territorial space it turned into statehood, and the population began to be called as Cossacks that already had not military-political, but ethnic value. This process was promoted by a Turkic origin of all tribes [4, page 124- 126]. Also this issue was touched by D. Dosmukhamedov in his article "Several Words about the Kyrgyz Customary Law and National Court" published in "The Ural leaf" in 1911 [5]. One of reasons for writing of article were served, in our opinion, by D. Dosmukhamedov's disagreement with separate provisions of scientific works of the Russian and western authors-researchers using the term "structure conglomerate" in relation to the Kazakh people. According to D. Dosmukhamedov, use of this term in relation to the Kazakh people is very disputable as this term can be used also in relation to other people including to the Russian people. D. Dosmukhamedov considers that "Kazakhs originally represented one of families of Tatars. Proving the point of view, he writes the following: "The Golden Horde differently was called Kipchak, and kipchak – one of childbirth the Kyrgyz (Kazakhs) who are a part of the Average Horde and inhabit a southeast part of the Turgai region and northern Akmola. In powerful bylinas the Kyrgyz (Kazakhs) khan Mamay is sung as the khan, in the same bylinas we quite often meet that the Kyrgyz (Kazakhs) batyrs (athletes) serve at the Tatar khans. We believe that Kyrgyz (Kazakhs) undoubtedly, were involved in invasion to Russia as they one of families of Tatars, and then when Tatars settled on mouths of Volga, having formed the Golden or Kipchaksky Horde, a part them, without wishing to leave free nomadic life, separated and under a name of Uzbeks wandered through the Urals to back to Dzungarian Gate" [5]. Further the author notes that subsequently Uzbeks shared on two parts again. As a result of this division one group, having reserved the old name settled, and the second group "under the name the Cossack (Kazakh) continues to wander from Tosyk-Tau (Dzhung.Vor.) to Edil (Volga) and from Ertys, Esil and Tobol (Irtysh, Ishim and Tobol) to Aktengiz (Caspian Sea)" [5]. On the basis of philological analysis of the terms "Uzbek" and "Kazakh", the researcher comes to a conclusion that these people are related. So, sorting the term "Uzbek", he writes the following: "… the word consists of two parts of uz and
55 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» beck; uz – itself, beck – beat, the judge, i.e. to yourself the judge, the owner". The term "Kazakh", in his opinion, also consists of two parts "… kaz – a goose and zac – a crow, figuratively – free and free, as birds" [5]. Thus, D. Dosmukhamedov comes to a conclusion that "Kyrgyz (Kazakhs) an essence separated from the Golden Horde Tatars. The difference between languages Tatar and the Kyrgyz – kazaks (Kazakh) is less, than between great Russian and low-Russian" [5]. In our opinion, it is necessary to agree on this matter with M. H. Dulati living and creating exactly during this period when there was a process of formation of the Kazakh nationality and formation of the first Kazakh khanate. In the monumental work of "Tarikh-i-Rashidi" it notes: "The ulus of Uzbeks after Abu- l-haira's death came to frustration, there were big disagreements, and most of people left to Kirey to the khan and Dzhanibek to the khan so the number them reached two hundred thousand people, and their began to call the Kazakh-Uzbek" [2, page 106]. In other place the author of the chronicle notes that "everyone as far as possible for the sake of safety and tranquility resorted to the help Kirey of the khan and Dzhanibek of the khan, and those got stronger. As in the beginning they left people, moved away from them and some time lived in misery and wandered, called them Kazakhs. It was also assigned to them" [2, page 106]. Some attention to this question was also paid by E. K. Nurpeisov and A. K. Kotov in the monograph "the State of Kazakhstan: from the khanate power to the presidential republic", Erkin Abil in the research "History of State and Law of the Republic of Kazakhstan". So E. K. Nurpeisov and A. K. Kotov write the following: "The nominal word "Cossack" which was originally designating – free, the wanderer, the exile or group of nomads who were defined left some subjection and resisting to it, gained ethnopolitical sense. The Turkic-speaking tribes united under the power of descendants of Urus-khan found the self-name and finally began to be called, however, not without subjective modifications, Kazakhs, and their country – Kazakhstan. The new ethnopolitical quality of stepnyak approved on the earth Zhetysu laid the foundation for development of actually Kazakh statehood, and the terms "Cossack", "Uzbek" began to designate also division of people according to the residence outlined by already some kind of political borders [6, page 14]. Also Erkin Abil holds the similar opinion [7]. A. N. Bukeykhanov as well as D. Dosmukhamedov, held the opinion according to which a certain impact on process of formation of the Kazakh nationality was exerted by Mongols. On the example of tribes of four steppe areas: Akmola, Semipalatinsk, Turgai and Ural. The thinker analysed how there was a mixture of Turkic and Mongolian tribes. So, kere, kipchak and alchina which entered the ulus of the eldest son Genghis Khan Dzhuchi and were the center of the Golden Horde became one of the first tribes which obeyed Genghis
56 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Khan. Naymans and argyns were a part of other son Genghis Khan Dzhagatay. At the same time, according to the scientist, all these tribes managed to keep the patrimonial life and a nomadic conduct of life. Therefore, the thinker comes to a conclusion that influence of Mongols is not so considerable on Kazakhs as can seem at first sight. A. N. Bukeykhanov refers emergence of the first Kazakh state to the second half of the 15th century and connects with the names of "sultans- dzhuchidov" Girey and Dzhany-bek which used "weakness of the Uzbek khan Abulkhair, from it were postponed with the adherents" [1, page 49]. The major factor which was accompanying and caused formation of the Kazakh khanate according to the thinker, was the hostility of the mogulistansky khan Iza-Bugi to Abulkhair. Abulkhair's death, strengthening of internal war led to the fact that a considerable part of the population returned to the Kazakh khanate. During this period the population of the Kazakh state increased to 200.000 people. Bukeykhanov connects further increase in population (more than 1 million people) with the name Kasym-khan which main priorities in domestic and foreign policy was a peacefulness, preservation of the uniform centralized state. Kasym-khan urged the people to think not of war, and of winterings. Unfortunately, after death of Kasym-khan, race for power amplified that led to disintegration of the Kazakh khanate. A. N. Bukeykhanov notes that "200 years later after combiner death the Kyrgyz of Cossacks of Kasym-khan its people appeared on the historical stage in the form of three political unions known under names again: senior, average and younger horde" [1, page 49]. Reference: 1. Bukeykhanov A. N. Historical destinies of the Kyrgyz edge and its cultural progress. - Alikhan Bokeykhan. Chosen (favourites). / Under the editorship of R. N. Nurgaliyev. – Almaty, 1995. – 477 pages. 2. Asfendiarov S. History of Kazakhstan – Almaty, 1998. – 304 pages. 3. Dulatula M. Compositions.: Articles and researches. – 2 T. - Almaty, 1997. – 344. 4. Kul- Muhammad, M. Zh. Akbayev. Patriot. Politician. Jurist. – Almaty, 1995. – 326 pages; Kul - Muhammad M. Zh. "Veteran of Alash. Zhakyp Akbayev" - Almaty, 1996. - 223.; Cool - Muhammad M. Zh. "Evolution of political and legal views of figures Alash" - Almaty, 1998. – 360. 5. Dosmukhamedov D. Several words about the Kyrgyz customary law and national court//Ural leaf. – 1911. - No. 9 – on January 13 6. Kotov A. K., Nurpeisov of E. K. Government of Kazakhstan: from the khanate power to the presidential republic. – Almaty, 1995. - 88 pages. 7. Abil E. History of state and law of the Republic of Kazakhstan – Astana, 2000. – 188 pages.
57 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
DOSZHANOV G.K. Kazakh National University after Al-Farabi Faculty of Law
Scientific adviser - PhD, associate professor Useinova K.R.
CUSTOMARY - LEGAL SYSTEM OF TRADITIONAL SOCIETY
The Kazakh traditional right is a type of the only legal system which is characterized by features of deep nature. The importance of a concept of legal system is shown by additional analytical opportunities for the complex analysis of legal branch of public life. New, much more high scientific abstraction one party of legal reality and new way of its consideration. Component of legal system on the essence, the legal nature, independence, to the level of influence on the public relations not identical, however, they obeyed to some general regularities, characterized by unity. The natural and social environment influences emergence of legal system. In this regard the corresponding legal order and an ownership right were entered. Stability of the patrimonial relations of nomadic society was an obstacle to formation of the individual right. Actions of the identity of the individual in society were considered on the basis of the patrimonial right. State of emergency affected a complication of legal relations. For protection against external enemies in each member of a sort were a soldier, and the member of the sort having special ability got the right of management. In peaceful life legal relations were based on a customary law. This right covers family, economic and criminal cases. In many researches is considered that together with the traditional right there was the international, market law, it was the certificate that the people rose to the political system. The customary law defines that it is impossible to consider the individual from the patrimonial right. Therefore on the basis of the traditional right civil, criminal and other economic systems appeared. The customary law influenced formation of mechanisms of statehood in nomadic society. The customary law is the historical beginning of the Kazakh right, created in a sort changed for centuries, but kept the main essence. Historical sources of legal bases of the Kazakh right are created in very early public relations. Continuity was never interrupted. It is legality of formation of the nature. Influence of the nomadic nature certain tribes united in a certain union, on this basis the new organizations were created, different categories the authorities, similar to new provisions, and the new rights appeared, as a result members of society created a new order of the power, it was the step forward, became the basis for emergence of new public consciousness. Viability of the Kazakh traditional legal system had two reasons. The initial reason – an economic and household basis of a nomadic civilization, the second
58 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» reason - social demand, not lost world outlook importance. It is allocated with thousand-year history and vitality, support of freedom of people. Studying of history of legal system of Kazakhs opens the road for definition of difficult questions social constructing, the state political power and life of the Kazakh society. Any right is formed according to requirements of society, this case shows importance of traditional legal relations in consideration of complex problems in the Kazakh society. Regulatory actions of legal relations of the nomadic states passed through different historical stages, its activity and inner meaning are similar. The political system, a form of the political power of the Kazakh state, development of legal culture originates long since. Properties of legal system and the public relations in a natural and traditional stage and the tribes living in ancient times influenced formation of legal bases corresponding to the Kazakh society. Historical sources of the Kazakh right are made by a customary law or traditional norms. In the second period laws of a shiriat affected the Kazakh traditional legal relations. And on the third period of provision of legal laws, "government decrees" of governors of the Kazakh steppe. The fourth period make institute of the biy which were engaged in lawmaking of traditional Kazakh society. The usual provisions making system of the right of Kazakhs goes together with formation of primitive society. Complication of the public relations affected a legal basis of customary laws. Development of the first legal relations is a fruit of social process. The traditional right is an effective way in regulation of nomadic cattle breeding and continuous preservation of the patrimonial relations in nomadic society. For formation of the provisions having demand in society it is necessary to connect with an internal political system, economy and culture. These provisions appeared in society, and also were created as a result of supervision of its realization the rights and duties of members of a sort. Reference: 1. N. I. Matuzov, A. V. Malko. Theory of the state and right 2. Kenzhaliev Z.Zh. Traditional legal culture in nomad Kazakh society
59 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
KABDIEV A.A. The student of 3rd year of law faculty Al-Farabi Kazakh National University, Almaty, Kazakhstan
Scientific adviser - Associate Professor Ospanova D.A.
THE INSTITUTE OF ADMINISTRATION JUSTICE IN THE CONTEXT OF MODERN KAZAKHSTAN
Broadly, administrative justice can be defined as the activity of the ordinary courts, special administrative judicial bodies, as well as "quasi" public bodies, usually the executive branch, to resolve administrative disputes arising in connection with the appeal of individuals misconduct and decisions of executive authorities violating their rights, freedoms and legal interests [1]. Administrative justice in the narrow sense of the word - it is an activity of special administrative bodies to resolve separately in a regulated manner procedural disputes between individuals and the state, represented by state bodies over the legality of administrative acts or decisions [1]. Kazakhstan law researchers have seriously considered the proposal to establish the country's Institute of Administrative Justice. Administrative justice is one of the tools for the protection of citizens from the various types of attacks on the part of state bodies. In Kazakhstan's this problem is researched by administrative and legal science researchers such as the affected R.A. Podoprigora A.N.Nurbolatov, N.I.Mamontov and others. It is important to take into account the experience of foreign countries, particularly European, due to Kazakhstan adopted many elements of European state-building concept of this kind of borrowing is often organically can be combined with the Kazakhstan model of legal system. Classic example of administrative justice system is France. In France, at the same time there are two mutually independent judiciary: - Courts of general jurisdiction; - The administrative courts. They are independent and complement each other. Disputes between them relating to the definition of the areas of competence shall be settled by the Tribunal conflict. The administrative courts of the first instance are the administrative courts or the so-called "administrative tribunals", the administrative courts of special jurisdiction, among which also includes financial and other courts. Administrative Courts of Appeal, consisting of chambers of various specializations, act as the administrative institutions of the second instance court. The highest administrative court in France, the State Council is the institution [2, c.18-19]. What is interesting representatives of administrative justice in France are considered civil servants, but not judges [3,
60 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» c.27]. Another example of the administrative justice system can serve as the German system. The Germany administrative proceedings system includes three instances: - The Administrative Regional Court (the court of first instance); -The Supreme Administrative Regional Court (court of appeal); -The Federal Administrative Court (the court of cassation). In Germany, the jurisdiction of administrative courts in the field of public law disputes has several constraints: 1) Appeal to an administrative court is possible only if the person the complaint was rejected by the administrative authority, a higher relative to the one that issued the contested act. Thus, the claim contesting the administrative act may be filed with an administrative court only after verification of the act in order prior administrative proceedings; 2) For certain areas of public administration, there are independent branches of the judicial system: courts of Social Affairs; financial courts; 3) Disputes on compensation of public law shall be settled by the ordinary courts in civil proceedings [3, s.56-57]. Kazakhstan potential concept of administrative justice, it is different. In place of first instance raises the current specialized inter-district administrative court. The second instance is the regional judicial board on matters of administrative justice, which consists of representatives of all courts of first instance in the region. Regional College selects the representative for the Republican judicial board on matters of administrative justice at the Supreme Court of the Republic of Kazakhstan, and it is the highest authority. Specialized inter-district administrative courts should be the basis of administrative justice in the Republic of Kazakhstan. Administrative proceedings, in our opinion, should be a part of the judicial branch because: - Adjudication authority within the executive could affect the objectivity of the dispute; - It will provide an additional deterrent to the executive; - In paragraph 1 of article 75 of the Constitution of the Republic of Kazakhstan stipulates: "Justice shall be administered only by the court" [4, c.32]; - Courts of general jurisdiction are too loaded for the implementation of administrative justice body functions. Another important point is the creation of the Administrative Procedure Code, which will include the procedure for the production of challenge acts of public authorities and accompanying cases. This code, similar to the Civil Procedure and the Code of Criminal Procedure should establish strict procedure in the above areas and to limit the abuse of power by officials, it is very important for ordinary citizens, as often as possible to face the administrative law if the criminal . The importance of the
61 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Administrative Procedure Code stated in the Presidential Decree of 29 August 2009, "On the Republic of Kazakhstan legal policy concept from 2010 to 2020": "Another important area is the development of administrative and procedural law, the apex of which would be the adoption of the Administrative Procedure Code. It should be clearly defined to the subject of regulation of administrative procedure law "[5]. Administrative justice is an institution that in specific situations considering the facts of infringement of the interests of individual citizens on the part of state bodies, public checks the need for action by public authorities that have caused harm to the applicant's interests. That concept, which has been presented above, is one of the many attempts of presenting the potential of administrative law in the Republic of Kazakhstan. But the fact remains that such institutions as the administrative justice and the administrative procedural law needed today Kazakhstan. Also, for each group of public relations regulated by administrative law should be specific legislation and specialized authorities, for example in the separation of the branches of power, to increase the efficiency of work in these areas and limit abuses of the competent authorities. Administrative Procedure Code should include a procedure in such areas as the administrative justice, torts, the disciplinary process in government. We believe that the development of this sphere depends directly on the degree of realization of the constitutional principle of legality. Reference: 1. Alekhin A.P., Karmolitskiy A.A., Kozlov Y.M. Administrativnoye pravo Rossiyskoy Federatsii. M., 2001. - 433 p. 2. Solov'yev A.A. Frantsuzskaya model' administrativnoy yustitsii: Monografiya / Kafedra «Administrativnoye i informatsionnoye pravo» Finansovogo universiteta pri Pravitel'stve Rossiyskoy Federatsii / Predisl. d.yu.n., prof. M.A. Lapinoy. - M., 2014. - 242 p. 3. Nurbolatov A.N. Administrativnaya yustitsiya.Sravnitel'no-pravovoy analiz: uchebnoye posobiye. - Almaty: Qazaqˌ universitetí. - 122 p. 4. Konstitutsiya Respubliki Kazakhstan.Uchebno-prakticheskoye posobiye.- Almaty: K-Norma, 2011, 44p. 5. The Republic of Kazakhstan President's Decree of 24 August 2009, "On the Republic of Kazakhstan legal policy concept for the period from 2010 to 2020" [Electronic resource] // Information-legal system of normative legal acts of the Republic of Kazakhstan "Adilet"
62 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
KALIASKAROVA M. student of the third course of the Al-Farabi Kazakh National University
Scientific adviser - Associate Professor Ospanova D.A.
VIOLATION OF RULES OF TRANSPORTATION OF HAZARDOUS SUBSTANCES OR OBJECTS ON A TRANSPORT
Administrative responsibility is this application by public organs, public servants and public of the measures of administrative influence set by the state agents to the citizens, and in corresponding cases - and to organizations for perfect administrative crimes. In the system of defence of law and order, discipline and legality administrative responsibility plays an important role, that stimulates to the proper implementation of duties, assists warning of offences. *Mikhaleva Н.В. Judicial practice is in matters about administrative crimes, Moscow: 2008. - 350 page. In accordance with the article of a 621 Code about the administrative crimes of Republic of Kazakhstan : -Violation on the railway transport of rules of transportation of hazardous substances or articles of carry-on baggage draws warning or fine in size of one monthly calculation index. -Violation on the marine and river transport of rules of transportation of hazardous substances or objects, and also non-fulfillment by the public servants of duties on registration in the corresponding documents of operations with hazardous substances or objects, bringing of incorrect records or illegal refuse to produce such documents to the corresponding public servants draw warning or fine in size of ten monthly calculation figures. -Violation on the air courts of rules of transportation of hazardous substances or objects draws a fine in size of ten monthly calculation figures with confiscation of the indicated substances and objects. -Transport in a bus, tram, trolleybus, rout taxi of explosive substances or objects, and also handing over of them in luggage or in a baggage room on a motor transport draw a fine in size of three monthly calculation figures. *Code of the Republic of Kazakhstan on Administrative Offences (January 30, 2001. № 155-II, has been amended for the 2012) (does not act). Code about the administrative crimes of Republic of Kazakhstan creates pre-conditions for the increase of efficiency of fight against administrative crimes, serves as the mechanism of strengthening of legality in a country. He, in particular, fills in present blanks in административно-правовой defence of citizens and organizations, contains more reliable guarantees of rights for victims; persons brought to the account, sets more hard requirements to the judicial form of decision of business. The labours devoted the problems of administrative
63 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» responsibility many scientists. The special attention some from them is brought over to such types of administrative punishments, as an administrative fine. Actuality of research theme is explained by that administrative law as compared to other fields of law, regulates more wide circle of public relations. Administrative and legal prohibitions are practically in any sphere of public life. Annually to the administrative account physical and legal persons the amount of that is calculated by millions are brought. *Bakhrakh D.N. Administrative law: Textbook for institutions of higher learning, second edition of changes and additions Moscow: 2012. - 800 page. A fine in an administrative law is one of the most widespread approvals applied for the feasance of administrative crimes. In operating Code of Republic of Kazakhstan about administrative crimes the concept of administrative fine is given the "Administrative fine is the money penalty, imposed for an administrative crime in the cases and limits, envisaged in the articles of Special part of the real division, in a size corresponding the determined amount of monthly calculation index, set under the law operating in the moment of raising action about an administrative crime". For example, in the article 25 Code of Azerbaijanian Republic about administrative misconducts from 11.07.2000 № 906 - IQ is envisaged clear formulation of concept of administrative fine : the "Administrative fine is the money sum appointed by a judge, by a plenipotentiary organ (by a public servant) and force raised from a guilty person in behalf on the state in the cases envisaged by the real Code", not only the circle of jurisdiction subjects plenipotentiary to appoint an administrative fine but also his force withholding, but also his force withholding, and also appeal of acting sums in the acuests of the state. * Code of Azerbaijanian Republic about administrative misconducts from 11.07.2000 № 906 – IQ. Historically folded so, that an administrative fine had been and remains one of the most effective administrative punishments. Both home and foreign practice give numerous confirmations to that able application of this punishment is able to render the serious psychological affecting offenders, and his material consequences - to do unprofitable the feasance of different sort of misconducts, including many kinds property, economic and another acts. * Babaeva В.К. Theory of the state and right, Moscow : 2012. - 458 page. Therefore in some international documents (for example, in the Minimum standard rules of the UNO in regard to measures unconnected with imprisonment) deployment of fine as alternatives is recommended to imprisonment. * Minimum standard rules of United Nations in regard to measures unconnected with imprisonment (Tokyo rules). To date the tendency of liberalization of criminal responsibility and toughening of administrative punishments was set. So, during only one and a half years not only the sizes of fine changed in an administrative
64 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» legislation but also their new forms of expression appeared. As a legislator asserts, fine as approval can be effective enough for the row of categories of citizens, especially if to take into account the sizes of this punishment for some types of illegal acts. Reference: 1. Code of the Republic of Kazakhstan on Administrative Offences (January 30, 2001. № 155-II, has been amended for the 2012) (does not act); 2. Mikhaleva Н.В. Judicial practice is in matters about administrative crimes, Moscow: 2008. - 350 page; 3. Code of Azerbaijanian Republic about administrative misconducts from 11.07.2000 № 906 – IQ; 4. Minimum standard rules of United Nations in regard to measures unconnected with imprisonment (Tokyo rules); 5. Convention about the protection of human rights and basic freedoms (celled in Rome of November, 4 1950); 6. Babaeva В.К. Theory of the state and right, Moscow : 2012. - 458 page; 7. Bakhrakh D.N. Administrative law: Textbook for institutions of higher learning, second edition of changes and additions Moscow: 2012. - 800 page.
KANBATYROV B.G. 2-year master of al-Farabi Kazakh National University
Scientific adviser - Zharbolova A.Z., Candidate of Law sciences, associate professor Department of the theory and history of state and law, constitutional and administrative law of al-Farabi Kazakh National University
POSITION OF THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN IN THE SYSTEM OF STATE AUTHORITIES
The Constitution of the Republic of Kazakhstan adopted by national referendum on August 30, 1995, confirms the integrity of government and its interaction with the system of checks and balances that action by the legislature, the seal is made by the executive and judicial branches. As S. Sartayev said “all three branches of power in the establishment of the rule of law should be strong and should be able to perform their functions” [1, 2 p.]. It means that legislative, executive and judicial branches of power should be developed. In other words, today the fate of Kazakhstan constitutionalism is directly related to the viability of the three branches of power. The current conditions of executive power is a complex organism of horizontal and vertical structure. All the structural elements of the executive branch has its own powers and features which was executed in the constitutional way. The specificities of their public administration and public construction
65 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» projects agreed upon in advance. So, today, with general and special powers of the executive bodies of the collective and individual, which brings together central and local authorities, is a multi-disciplinary and multi-functional complex system. In accordance with the Constitution the system of executive bodies include the Government of the Republic of Kazakhstan, central executive bodies, as well as local authorities. The Government of the Republic of Kazakhstan is the main functional body in the state system and is the central state body. Depending on the result of the work of the government we can judge the idea of stability in the country. Therefore, the level of implementation of various programs aimed at the development of the country and the pace and extent of the model can be different in each state. The Government of the Republic of Kazakhstan as an independent constitutional institution in the system of executive power is divided into a central location. According to the first paragraph of Article 64 of the Constitution of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan heads the system of executive bodies, as well as supervise their activities. Government refers to organize their activities and orientation. To this end, the Government, has broad powers of administrative and political positions in the field of economics, finance, social and cultural rights. Activity of the Government of the Republic of Kazakhstan should be directed to serve interests and goodness of human. This is the most important in the development of a modern democratic state and the constitutional principle of direction. Thus, looking at the performance of the government would be a supposition about the stability of the country. Focused on democracy and the rule that any state involvement is clear. The powers of the Government of the Republic of Kazakhstan, if you look at the focus and work services established by the Constitution of the Republic of Kazakhstan in accordance with Article 66 of the fundamental constitutional and services are the following: 1) socio-economic policy of the state, its defense capability, security, develop the main directions of ensuring public order and organize their realization; 2)the national budget in Parliament and submit a report about its performance, ensure implementation of the budget; 3) introduce draft laws into the Majilis and ensure enforcement of laws; 4) organize management of state property; 5) develop measures for the conduct of the foreign policy of the Republic; 6) ministries, state committees, other central and local executive bodies Guide; 7) cancel or suspend acts of force, in whole or in part of ministries of the Republic, state committees, other central and local executive bodies; 8) appoints and dismisses the heads of central executive bodies which is not part of the Government;
66 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
9) performs other functions [2]. In recent years, the country began to enter the market relations and economic facilities for the government controls the vast majority of relocations substantial portion of the government's regulatory obligations, whether competition is not difficult. Thus significantly reducing the size of government enforcement. This is because of the fundamental nature of the regulatory change would be affected. In particular, the former centrally planned economy’s direct market society worthy of government regulation gave the result to be replaced by other means. To give an idea of the Government in the science of the purpose and essence of the mechanism of the state, must be complete and accurate disclosure obligations. According to the statement made by the Russian scientist S. Koshkin government - executive and managerial leadership in the country, that is a collegial body with the competence of carrying out administrative activities [3,11 p.]. The variety of opinions about the appointment of the value of government and economic, political, social and many objective factors. Now the value of the Government of the Republic of Kazakhstan democratization of public life in the country, and its duties and powers, there is a new look at the issue needs to be revised. Government in the fields of economic, social and culture, combines the services administrative and political construction, the actions of law enforcement with a wide range of competence of the central executive bodies (ministries and agencies), administer and guide of their actions. In addition, the Government of the Republic of Kazakhstan will be known as a great role in the development of society. As for the influence of the Government of the Republic of Kazakhstan for the social sphere, it is always the focus of attention of the Government and the industry in most cases, the government regulates the legal ways of issues like pensions, support for low-income people. The function of the Government in the current period is determined taking into account the above. In this regard, it is used with success in many countries of the world by the experience. In the system of executive power Government is an independent constitutional institution. Paragraph 1 of Article 64 of the Constitution of the Republic of Kazakhstan Republic shows that Government as an executive authority manages the state system, as well as the management of their actions, coordination and guidance. In recent years, many members of the Government of the Republic of Kazakhstan, in particular the ministries of the central executive bodies has undergone countless transformations distributions reforms. Ministries and departments of these bodies are often subjected to achieve certain business entities engaged in public relations damage could occur, which means that some part of the Government of the Constitution of the Republic of
67 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Kazakhstan and the Government of the state bodies and other constitutional acts captures the shadow of the implementation of the services. According to the Constitution of the Republic of Kazakhstan, and Constitutional law on the Government of the Republic of Kazakhstan the activities of the Government of the country has a wide scope of powers. At the same time, taking into account the domestic and international experience and with the understanding that the principle of separation of powers does not require the other branches of government interference in the implementation of the Government of the Republic of Kazakhstan and the assignment of powers of the executive branches should be noted that led to independence. In conclusion, taking into account that the Government of the Republic of Kazakhstan is the state system, the main official body I want to say that the responsibility of the government is to expand and improve the state system. Therefore, the challenges facing the country, including condensed and professional, to the most basic services capable of and involved in the implementation of the priority goals and interests, it is necessary to establish a way to protect the national interests and the government. [4] Its difficult transition and creating part of the cargo of the responsibility of the Government of the Republic of Kazakhstan in contact with the same approach. References: 1. S. S. Sartayev About establishment of a post of the President of the Kazakh SSR and modification and additions in the Constitution (Basic law) of the Kazakh SSR//the Kazakhstan truth. April-1990-25. 2. Constitution of the Republic of Kazakhstan – Astana: Elorda, 2010. – 56. 3. The constitutional (state) right of the foreign countries / under. edition of Strashun B. A. – Beck print, 1995. - 278 pages. 4. K.O. Tleubayev. The Government of the Republic of Kazakhstan in accordance with the principle of separation of powers, constitutional and legal authorities. Avtoreferate of dissertation for the degree Cand.Jur.Sci. A., 2006
KANBATYROV Y.G. master student 1st course Faculty of Law Al-Farabi Kazakh National University
Scientific adviser - Doctor of Law, Professor A. S. Ibraeva Al-Farabi Kazakh National University
THE CONCEPT AND ESSENCE OF LEGAL STATE
Questions of legal state widely discussed at nowadays. Cause this type ofcautionto legal state not only in humanism of idea, but of its appearance, but also in the ways of searching the most right design and effective implementation. The main provisions of the theory of legal state, how and other concepts
68 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» were upswing during civil revolutions during transforming traditional states in to constitutional states. Traditional states had unlimited powerunder citizens, denied equality of all people. It is for example slave-holding states and medieval monarchies. The constitutional states is the source of country power, it forms legislation branches, state subordinated society spherelimited its activities, and concedeguaranteed rights Human Being. The essence of the rule of law in the analysis means ratio is not so much the state and law, that the name suggests much of the state and the individual. The main point of the theory of rule of law states: in any situation, the individual interests take precedence over the interests of the state. The man, the personality is never a means , even pleased , and achieve great and noble goal. This - the initial principle of rule of law, the principle of humanism. Taking into account historical data , public and state practice and from the standpoint of modern scientific knowledge are the following rule of law . The principle of priority of law. It is through the right most likely to express and implement the public interest, that is, unlike the other social norms (morals, customs and religious rules), is formally defined, mostly written in nature and can thoroughly regulate on the one hand, the competence and the limits the powers of the state and government officials, on the other - the rights and responsibilities of citizens, their legal status. These qualities were the right objective basis, allowing you to use it as a kind of "medicine" from the abuse of power by state officials [1, p. 32]. Ultimately, the priority right means : a) deal with all matters of public life from the perspective of law ; b) a compound of universal moral and legal and formal regulatory values with the legitimate rights of the public power by force; c) the need for ideological and legal basis of any decision of government and public bodies; d) presence in the country and necessary for the expression of the right forms and procedures (laws , the system of material and procedural safeguards ) . The principle of legal security of the person. This principle is the primary , comprehensive and absolute. Man as a rational and social being in your life, to communicate with their peers creates different organizational forms of its existence and sets acceptable for themselves the rules and norms of behavior . In this sense, the law and the state are derived from human [2, p.41]. The complexity lies in the fact that the said principle is the basis of all relationships as a citizen to the state and its agencies, and with other public entities, other citizens in the framework of the legal relationship regarding a wide variety of objects. The absoluteness of this principle is that all relationships of the individual with the state (its institutions, officials) should be based only on a legal basis. If they are outside of the right, then the state can turn this arbitrariness, extralegal violence, disregard for the needs of the person. The principle of unity of law . In a state of law any legal act should not only
69 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» in form and name , but also the meaning and content to be legal . This means that it should reflect the natural legal principles , comply with international legal standards on the rights of man and citizen , to be accepted as legitimate by a public authority , duly elected or appointed . Finally, in its edition to be used the entire set of legal tools and techniques developed by the international practice. The principle of legal delimitation of activities and different branches of government. The traditional concept of separation of powers into legislative, executive and judicial powers in relation to the modern state must be understood not as a division of power, and how to create a system of checks and balances to facilitate the smooth implementation of each branch of its functions. The legislature elected nationally, reflects the sovereignty of the state. The executive branch, appointed by representative bodies, is implementing laws and operational and business activities. The judiciary is the guarantor of redress. Signs of the rule of law . With the development of public- legal institutions, primarily , the essential question of the rule of law is the problem of the relationship of power and personality. The solution of the issue gives rise to the idea of popular sovereignty , which, in essence , is the main feature of the rule of law . The problem of sovereignty is connected and a sign of the rule of law as the rule of law (law) as legal sovereignty involves organization of supreme state power, the legal procedure for its implementation, the principles of relations between the individual and the government. State activities should be carried out only in the legal form and in accordance with the law. This fully applies to the legislature and the judiciary. In theory, the rule of law reflected in the fact that it is not simply a product of the will of the state, and is an implementation of the legal ideas of justice formed by individuals with whom the government is publicly legal relations [3, p.68]. Among the important features of the rule of law are: - Availability of a developed civil society ; - The creation of democratic political institutions that prevent concentration of power in one person or body ; - The rule of law and legal action , holding , in fact the sovereignty of the government; - The elevation of the court as one of the means to ensure the rule of law . On the basis of consideration of the substantive provisions of the theory of the rule of law, as well as the study of literature can be concluded. In domestic and international law, political science and philosophical science, there is no common understanding of the concept of the rule of law. Various authors, arguing essentially in one direction, give a different set of principles and attributes of law, focus on those or other problems of the concept. Therefore, it never existed, and there is no generally accepted understanding of the rule of law. This is due to various factors, among which are the following: features of historical and cultural development; democratic, political and legal traditions; the originality of the political and legal systems. However, no matter how different versions of the rule
70 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» of law, it is possible to identify some common features: the maximum and the real protection of rights and freedoms, the responsibility of the state to the citizen and the citizen of the state, the rise of the authority of law, effective law enforcement. Thus, legal state - it is a state in which conditions are created for the fullest rights and freedoms of man and citizen, as well as the most consistent of binding using the right of political power in order to prevent abuses. Generally, referring to the problems and the factors that determine the construction of the rule of law, including the priorities, indicate those which are material in nature, for example, the institution of an independent judiciary, separation of powers, etc. All this is true and there is no doubt [4, p.113]. And still need to some extent to shift the focus in the first place to talk about the events of the ideal properties. In this regard, it deserves serious consideration that the history of mankind, its stages and can be interpreted as a change of different worldviews, beliefs. In other words, the theoretical structure of the legal state was realized only because it has reached a "critical mass" that can rebuild the human being. The idea appears as a response to the need of human practice, gradually acquires a relative independence, influence on public life. Formation of the rule of law requires a balanced effort. It is impossible to carry out legal reform in isolation from, say, political . All you need to link and to achieve parallelism. Well ahead of political reforms in the deteriorating economic situation rightly engenders mass protest , because what democracy is , if society just provides a simple reproduction of life at the level of basic needs . Building the rule of law is difficult where there is a long tradition of legal nihilism. Quite often you can find the argument that the shortcomings of social development are mainly the result of bad laws. With this we can agree only on the parts, as even the perfect law that could change little, if members of the public do not have the habit to tailor their actions to the law. We must strive for a quality society where law-abiding behavior becomes stable, massiveness, typical and stereotyped, that is, when it does not require significant intellectual efforts, and will be implemented in "an unconscious algorithm."[5, p.122] The rule of law is both a category and due is ideal, transforming reality. The path to the rule of law long and difficult, full of danger, delusions and illusions. Many states have gone to hundreds of years of democracy, sometimes paying for it too expensive social cost . Building the rule of law must be based on an elaborate strategy and tactics. Without taking into account the experience of other states are unlikely to do , but this experience should be combined with their own traditions and realities. Reference: 1. Baymahanov MT Problems of realization of the principles legal state in the Constitution of the Republic of Kazahstan . // Legal and state. - 1992. - № 8. - S. 34-35 . 2. Sartaev RS The formation of a multiparty system in the context of the
71 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» political transformation of Kazakh society . - Almaty :Zhetizhargy , 1996. - 170 p. 3. Nersesyants B.C. Problems of the general theory rights and state . Textbook for High Schools . - M .: Norma - 2012. - 340 p. 4. Vladimir Vlasov History of political and law exercises. -M :Yurayt , 2014. -411 p. 5. Hegel , the work of different years in two volumes . - M .: Thought , 1973. - V.2 . - 358
KENZHINA V.E. 4st year student of the Faculty of Law Al-Farabi Kazakh National University
Scientific adviser - PhD, associate professor Ospanova D.A.
INDIVIDUALS AS SUBJECTS OF ADMINISTRATIVE LAW
When we say individuals the citizens of Republic of Kazakhstan, citizens of other states, and also persons without citizenship, are understood. An individual, as well as any other legal subject, possesses a legal capacity, capability and capacity for performance of legal act. Legal capacity of citizens is an ability to have civil laws and carry to the duty (civil legal capacity) confesses in an equal measure after all citizens. The legal capacity of citizen arises up in the moment of his birth and ceases with his death. A citizen can have property on the right of ownership, including foreign currency, both within the limits of Republic of Kazakhstan and after her borders; to inherit and bequeath property; freely to move on territory of republic and choose the place of inhabitation; freely to abandon the limits of republic and return on her territory; to carry on any activity not forbidden by legislative acts; to create legal entities independently or with other citizens and legal entities; to accomplish any not forbidden by legislative acts and participate in obligations; to have a right of intellectual ownership on inventions, work of science, literatures and arts, another results of intellectual activity; to demand refund material and moral harm; to have other property and personal rights. All of it makes basic maintenance of legal capacity of citizen. A capability is ability of citizen to acquire the actions and carry out civil laws, create for itself social duties and to carry out them (civil capability) arises up in full with the offensive of full age, after the achievement of eighteen-year age. But there are some exceptions, so at entering into marriage to the achievement 18, and also if he works by labour agreement or from a consent his legal representatives carries on entrepreneurial activity, this citizen acquires a capability in full since entering into marriage or start-work. Emancipation is produced in decision of organ of guardianship and patronage from a consent his
72 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» legal representatives or in default of such consent in decision of court. The emancipated minor possesses civil laws and carries to the duty (including obligations arising up because of infliction to them harm), except for those rights and duties, for acquisition of that the legislative acts of Republic of Kazakhstan are set age qualification. Legal representatives do not carry responsibility on obligations emancipated minor. A citizen that because of abuse of strong waters or narcotic substances puts the family in a tight material situation can be limited by the court in a capability in the order set by the civil procedure code of Republic of Kazakhstan. The patronage is set above him. He is right independently to accomplish shallow domestic transactions. To accomplish other transactions, and also to get earnings, pension and another acuestss and dispose of them he can only from a consent a trustee. As soon as abuse ceases a court abolishes limitation of capability. Because of more serious reasons, such as psychical rejections or imbecility, from that he can not understand the values of the actions or manage them, he can be confessed by a court incompetent, in this connection above him guardianship is set. On behalf of the citizen confessed by incompetent, transactions are accomplished by his guardian. In case of recovery or considerable improvement of health incompetent, a court acknowledges him capable, whereupon from him guardianship is taken off. No another terms, except those, that straight indicated in a law, can not limit or deprive the citizen of capability. Failure to observe of the terms and order of limitation of legal capacity and capability of citizens or their right to engage in an enterprise or ineffectiveness of act of state or another organ setting corresponding limitation draws another activity set by legislative acts. Minor in age from 14 to 18 have a particular capability. So they can accomplish transactions from a consent their legal representatives, and also right independently to dispose of the earnings, grant, another accuses and objects of right of intellectual ownership created by them, and also to accomplish shallow domestic transactions. But also there are certain terms at that their rights can limit. In a counterbalance to it they also bear responsibility for the transactions accomplished by them. Capacity for performance of legal act is an ability of person to give a report to the actions and to bear the responsibility for them. As well as for a capability, the offensive of capacity for performance of legal act is related to age of subject. A person attaining 16 confesses in the administrative law is the owner of capacity for performance of legal act. Foreigners and persons without citizenship also have rights and some duties, id est also are administrative legal subjects. But here they can not possess certain rights ( to take part in the election, id est to carry out a management the state (direct or indirect)), have some duties that is not imposed on the citizens of РК, (for example, necessity to be marked about the movements) and on them kinds can be imposed punishments inapplicable to the citizens of РК (turning
73 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» out). Principles of administrative status of citizens : 1. Social equality. All people are equal before a law and court. The state guarantees equality of rights and freedoms of man and citizen regardless of sex, race, nationality, language, origin, property and post position, place of inhabitation, attitude toward religion, persuasions, belonging to the public associations, and also other circumstances. 2. Humanism. In RК rights and freedoms of man and citizen confess and guaranteed according to the universally recognized principles and norms of international law and in accordance with Constitution. 3. Democracy (democracy). The carrier of sovereignty and only source of power in RК are her multinational people. 4. Presumption of innocence. A citizen is considered not guilty in the feasance of offence regardless of degree of weight, while his guilt will not be well-proven in the set judicial order and envisaged in an entering into legal force individual правоприменительном act. 5. Legality. All subjects of state administration are under an obligation to observe and carry out the legislation of RК. One of the elements of administrative status of citizens of RК are right and duties in the field of state administration. Administrative status of foreigners and persons without citizenship is such: persons, being not the citizens of RК, use all rights and freedoms, and also carry all duties set by Constitution of RК, by laws and by the international agreements of RК, except for withdrawals, envisaged by intergovernmental agreements. All foreigners being on territory of RК can be divided into three large groups: citizens sojourning in to the republic, citizens are constantly resident in RК and citizens passing through territory of RК by transit, although on the whole they have the same rights and duties, what Kazakhstan, for them some withdrawals are envisaged or limitations: they do not carry a military duty; they can not be civil servants, except as on the personal to the order of President RК and international agreements. on them a duty to advise specialised organs about a journey on territory is laid republics (for temporally being); they are under an obligation to register foreign passports (for temporally being) and execute the row of the actions envisaged by Constitution of RК and by other laws, international agreements and agreements; deprived political rights (to elect, to be elected, be a member of political parties). Legal status of citizens of Kazakhstan is set by Constitution of RК, and similarly by international legal acts, in particular, by Universal declaration of human rights. Administrative status of citizens of Republic of Kazakhstan makes
74 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» major part of their general legal status and fastened in many laws and subordinate acts. The table of contents of administrative status of man and citizen is made: -it is a complex of their rights and duties, envisaged by the norms of administrative law; - guarantees of realization of these rights and duties, including their guard a law and mechanism of defence by the organs of the state and local self- government; Legal status is a complex category, reflecting the mutual relations of personality and society, citizen and state, individual and collective. Reference: 1. The Code of Administrative Offences of the Republic of Kazakhstan 2. Bachrach DN "Administrative law" 3. Podoprigora RA "Administrative law"
KOZHABAY A. 4 course student, Al-Farabi Kazakh National University
Scientific adviser - PhD, associate professor Akhatov U.
HISTORICAL DEVELOPMENT OF THE LEGAL ASPECTS CONFEDERATION ASSOCIATION OF SWITZERLAND AND THE UNITED STATES
The most common example of a confederation in a historical context is Switzerland. In Switzerland, the majority comes from the fact that there was a confederation since the emergence of a confederal union on the basis of the agreement in 1291 three cantons - Uri, Schwyz, and Unterwalden. Some authors year of creation of the Confederation of Switzerland consider 1315, linked content cantons victory over Austrian forces at Morgarten. [1, 102]. Also, there are authors who believe that it was created in 1648 and that the Swiss Confederation goes back to the year of international recognition. At the end of the XI century and the Tsering Kiburgter, Savoyskiler,Habsburg. Habsburg tried to subdue the forest cantons of Uri, Schwyz, and Unterwalden. In the middle of the XIII century as a result of the fight against the Habsburgs , according to AN Chistozvonova sign the following agreement:"forest cantons concluded an August1291" everlasting covenant", laid the foundations of the Swiss Union (Swiss Confederation) as virtually an independent state within the framework of the "Holy Roman Empire" [2,25]. Currently in Switzerland on August 1st is celebrated as the day of confederation, a national holiday. Emperors, preserving their dependence cantons of the empire, from the power of the Habsburgs freed diplomas in 1291,1297,1309 years. Habsburg attempts to subdue the forest
75 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» cantons failed as a result of the war in 1315 in Morgarten. HIY-XY centuries Union of Switzerland in the territorial and political-military plan become stronger. The structure of the Swiss Union 1332 Lucerne came in the power of the Habsburgs, and in 1351 Zurich, 1352 Glarus and Zug, 1353 Bern. Further development of the Swiss Union according to RV Popov developed as follows:"The Confederation was formed in constant wars with the Habsburgs who sought to subdue the newly liberated lands. In the late thirteenth century, the Allies defeated the Habsburgs at Zemnahe in 1388 when Nfelse. The Habsburgs were forced to acknowledge the existence of the Confederation of the 8 cantons(1389).In 1481, they joined the Union of Fribourg(Freiburg) and Zoloturp. The so-called Swiss or the Swabian War in 1499 ended with the establishment of a de facto independence from the empire of Swizerland. In 1501 the Union have been taken on a canton of Basel and Schaffhausen, v1513 city - Appenzell thus formed Confederation of 13 cantons (which lasted until 1798) [3,18]." The structure of Swiss Confederation along with cantons, individually solve their internal and external policy also includes allied land (St.Gallen, Graubunden, Geneva, etc.) in the Confederation until 1978, there was no central system of state bodies, but instead from time to time All-Union convened the Diet casting vote had only cantons owning rightfully. The union also absent bodies administration, military, financial authorities and others. Next, The Swiss Confederation evolved in the following directions: "In the spring of 1978, French troops entered Switzerland, on March 5 took Bern. Confederation of 13 cantons broke. April 12 in the town of Aargau with the support of France was proclaimed Helvetic Republic (part of it, along with the previous 13 cantons, entered Vale, Lehman, Aargau, Bellinzona, Lugano, Rhaetia, Sargans, Thurgau and St. Gallen), introduced the constitution (complied by the model of the French Constitution of 1795). Switzerland became a centralized unitary state. Simutaneously, deployed in Switzerland and the Federalists and Unitarians. In February 1802, it adopted a new, so-called constitution Malmaison (from the name of the city of Malmaison, where there were negotiations with the Unitarian Federalists) cantons of limited self-government. February 19,1803,Napoleon issued the I "Act of meditation," reducing(with some modifications) existed before 1798 polity Switzerland. In addition to the previous 13 cantons, the Union included Grisons,Aargau,Thurgau,St.Galdlen,during,Ticino"[3,p 102].United States of America declared its independence in 1776. November 15, 1777 the Second Continental Congress adopted the "Articles of Confederation". July 9,1778,as a result of ratification were approved and signed by the states, March 1, 1781 entered into force. The Confederation of North American independent state gained international recognition September 3,1789 on the basis of the Treaty of Versailles.September 7,1787, the Philadelphia convention was adopted by the US Constitution,which formally came into force on July 26, 1788(according to some 4 March 1779 [4,67]. In the scientific literature,the existence of a confederation in
76 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» the United States associated with different periods. Thus, the exact time of the existence of Confederation established a system of different points of view. Some suggest that the confederation existed in 1776-1787,respectively,[5,16], some- 1776-1789 years[6,67], the third-1777-1787 years, the fourth-1781-1787 years[7,67] fifth -Years 1787-1789 [8,67]. Also, there are opinions that indicate the period of the Confederation of North America 1778-1787 years [9,37] or years1778-1789 or even 1176-1788 years. Some studies do not indicate the exact timing [10,67].However, mainly in the legal aspect of the legalization of a federal state in the US, most associates with the Constitution of 1787. The arguments about the existence of the US federal structure in the years 1861-1865, before the Civil War, controversial in the scientific literature. If some writers tell us about the existence of the Confederation in this period [11, 165] other completely refute this opinion [11, 67]. Resolution 7 July 1776, the Representative Virginia State Congress, said: "The United colony there and of right ought to be free and independent states" [12, 18]. Taking into account this fact we can consider that the US states are confederal state (de-facto) since the declaration of independence, that is, all power concentrated in the hands of the hands of the states. Considered a national constitution in US history - the Articles of Confederation, also kept this form of state structure. In June 1776 First Continental Congress appointed a committee to prepare the Articles of Confederation. The project prepared by this Committee was approved by Congress in November 15, 1777. However, approval of the document 13 states lasted for more than three years, the Articles of Confederation entered into force on 1 March 1781. Articles of Confederation legalized, consolidated the "everlasting covenant" between the states of the North American continent. The main purpose of these actions is the - the world, the strengthening of relations between states, join unions, freedom, flowering of software. In the article ІІ- specifically noted that: "each state retains its sovereignty, freedom and independence, as well as all the power, all the jurisdiction and right, which is not by this Confederation expressly United States, in Congress assembled" [13]. The name of the Confederation, Article I marked as "USA", which implies the notion of "United States of America." This includes your 13 independent states. Confederated 13 independent states (states) have set ourselves the goal to solve foreign policy problems. This means that the pressing need of the time the problem was the struggle for independence against Britain. For the same reason, most post-independence Union lost its necessity. mainly in the legal в основном в правовой Majority - большинство basis of the agreement основе соглашения
77 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Swiss Confederation швейцарская конфедерация Habsburg Габсбургов laid the foundations of the Swiss Union заложил основы швейцарского Союза preserving their dependence cantons of the empire - сохраняя свою зависимость кантонов империи in the territorial and political-military в территориальных и военно- политических according - согласно to subdue the newly liberated lands. чтобы подчинить освободившихся земель. were forced to acknowledge были вынуждены признать with the establishment с установлением cantons кантоны includes allied включает союзников owning rightfully владея по праву introduced the constitution представил Конституции negotiations переговоры signed by the states signed by the states established a system установил систему the strengthening укрепление do not indicate не указывают between states между государствами, между странами, между состояниями its sovereignty ее суверенитет, его суверенитет, суверенитет was the struggle была борьба result of ratification результат ратификации References: 1. Gradovskij A.D. Gosudarstvennoe pravo vazhnejshih evropejskih derzhav. – SPb., 1885. – 425 s. 2. Chistozvonov A.N.Ocherki po istorii Shvejcarii HІІІ-HҮІ vv. – M., 1968. – 325 s. 3. Popov R.V. Konfederacija gosudarstv: istorija i sovremennost': Diss… na soisk. kand. jur. nauk.: 12.00.01. – Moskva. – 2002. – 200 s. 4. Konstitucija SShA: Istorija i sovremennost' / Pod red. A.A. Mishina, E.F. Jazykova. - M.: Juridicheskaja literatura, 1988. - 320 s. 5. Aleksandrenko G.V. Burzhuaznyj federalizm (kriticheskij analiz burzhuaznyh federacij i burzhuaznyh teorii o federalizme). - Kiev: izd-vo AN Ukr.SSR, 1962. - 356 s. 6. Sil'vestrov S.N. Osnovnye harakteristiki konfederacii i federacii // Vlast', 1994. - №12. – S. 38. 7. Pustogarov V.V. SNG-mezhdunarodnaja regional'naja organizacija //
78 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Rossijskij ezhegodnik mezhdunarodnogo prava. - Spb.: 1994. - S. 43-44. 8. Lysenko V.N. Federacija v zarubezhnyh stranah. - M.: Juridicheskaja literatura, 1993. - S. 5. 9. Topornin B.N. Novyj Sojuznyj dogovor: teoreticheskie podhody // Novyj Sojuznyj dogovor: poiski reshenij. - M.: 1990.- 182s. 10. Klimenko B.M. Problemy pravopreemstva na territorii byvshego Sojuza SSR // Moskovskij zhurnal mezhdunarodnogo prava. - 1992. -№1. - S. 4. 11. Konstitucii i zakonodatel'nye akty burzhuaznyh gosudarstv XYII-X1X vv. Anglija, SShA, Francija, Itapija, Germanija: Sbornik dokumentov / Pod. red. P.N. Galanzy. - M.: Gosjurizdat, 1957. - 413 s. 12. Kozlova NJu. Burzhuaznye uchenija o federalizme HҮSh-HІH vv. - M.: Nauka, 1988. - 144 s. 13. Sbornik dokumentov po istorii novogo vremeni stran Evropy i Ameriki (1640-1870). - M.: Vysshaja shkola, 1990. - 425 s.
KOZHAGELDIEVA D. 4th year student of the Faculty of Law Al-Farabi Kazakh National University
Scientific adviser - Ph.D., associate professor Kusaynov D.O.
BUILDING IN MEDICAL DETOX AS ONE OF THE ADMINISTRATIVE RESPONSIBILITY PROCEDURAL MEASURES
Under the measures of administrative suppression refers to a range of measures aimed at something that would not allow to complete the already initiated offense. These measures are clearly regulated by legislation, and most of them can be used only by law enforcement officials. Preventive measures are addressed in the future, keep in mind the imperfect illegal act and allow the application of administrative sanctions or precede it. Preventive measures are used to stop the objectively wrongful acts committed by persons including insane. Circle entities in respect of which can be applied a preventive measure is broader than the scope of entities subject to administrative penalties. Detoxification center- medical institution, which aims at the content of individual average degree of intoxication in a state, until they sober up. Persons suspected to be present in a state of alcoholic intoxication, delivered sobering officers of the Interior, which are inspected on arrival by paramedics, as well as establish their identity. In recognition of a person in a state of alcoholic intoxication, moderate, requiring sober, made detention until sober. Persons who are in a state of severe intoxication, alcoholic coma, delivered in health facilities (hospitals), where, most often, are admitted in the intensive care unit. Administrative detention, ie temporary deprivation of individual personal
79 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» liberty, in particular, freedom of action and movement with positive content for a certain time in a medical detoxification center for the purpose of curbing the illegal activities carried out by bodies of internal affairs (police) in cases of disobedience employee of the internal affairs (police), offending human dignity and public morality when given person drinking alcoholic beverages in public places or appearance in public in a drunken state. The very fact of being a person in a state of intoxication in a public place without symptoms, can not serve as the basis for his arrest and placement in a medical detoxification center. Bringing a medical sobering-up of persons who are intoxicated, carried out, as a rule, his crews in special vehicles. Crew Medical Detox with conveyance of a person in a state of intoxication, take the necessary measures to avoid harm to their health, ensuring the safety of existing things with him, documents and valuables (money, watch, jewelry, etc.). There is also a list of persons who can not be delivered to medical sobering-up stations: • Deputies of the Parliament of the Republic of Kazakhstan and local representative bodies. They are transmitted respectively responsible duty of the highest representative body of the Republic or the territorial (regional, municipal, district, town and village) Maslikhats • Women with obvious signs of pregnancy, people with disabilities with obvious signs of disability are sent to hospitals. • Foreign nationals enjoying diplomatic immunity. Upon detection of such persons shall report to the senior crew on duty at the urban area authority and acts according to his instructions. a person suspected of committing a crime, a medical detoxification center is not placed. They are transmitted to the duty of the City District Authority. Located in public places while intoxicated servicemen and reservists called up for duties, dressed in uniforms or are in civilian clothes and with identity documents, submitted by the representative of military commandant, commanders of military units or departments for defense affairs; employees of the Interior, the National Security Committee, financial police, prosecutors, court - relevant representatives; state awards of the Republic of Kazakhstan Order of "Altyn Kyran", "Halyk kaһarmany", "Otaң", "Danқ", "Aibyn", "Parasat", "Dostyk", "Kurmet", Heroes of the Soviet Union and Socialist Labor, persons awarded orders "For service to Motherland in the Armed Forces of the USSR" three degrees, three degrees Glory, Labor Glory of three degrees, as well as citizens aged 60 years and older are sent to relatives. If unable to transfer such persons, they are delivered to the medical sobering detoxification center on a common basis and placed in a separate room. All persons delivered to the medical detoxification center, registered in
80 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» the register of persons placed in medical detoxification center. On the basis of identity documents as well as oral statements delivered them to workers or citizens of each of them is filled with accounting and statistical card, which is kept for a year. Accounting and statistical cards for citizens with special signs, the identity and place of work which have not been established, shall be retained for three years. Personal search delivered to the medical sobering-up by the person of one sex to inspect in the presence of two witnesses of the same sex. In cases of objective impossibility of the presence of witnesses, the inspection is carried out with the participation of the paramedics, as well as employees of the Interior, with the exception of those who participated in the detention and habeas inspected. On the corresponding record in the protocol is the personal search and examination of things, which is a document of strict accountability and a typographic print a serial number. Shall be drawn up in two copies and signed by the duty of medical detoxification center, police officers engaged in surveillance of persons placed in the sobering and a paramedic. The first instance of the accounting and statistical card is sent to the City and District Line authority to decide on the imposition of administrative liability or transfer of material to the public at the place of work or residence, the second - is a medical detoxification center. Administrative detention of an individual in a medical detoxification center is carried out for the time necessary to ensure the proceedings on an administrative offense, and can last up to three hours. The term of administrative detention of a person in a state of intoxication, is calculated from the time of sobering, certified by a medical professional and can not be extended. At discharge from the medical detox inspector on duty returns a receipt in the journal and in the protocol of the deposit seized belongings, documents, money and valuables. Placement in a medical detoxification center is a measure of administrative suppression and is used in the public interest and in the interests of the person concerned is the protection of public security, public order and the offender's health.
KUANYSH M. 4st year student of the Faculty of Law, Al-Farabi Kazakh National University
Scientific adviser - Kenzhalyev Z.Zh. Doctor of Law, Professor Al-Farabi Kazakh National University
PROTECTION OF HUMAN RIGHTS AND CIVIL EMERGENCY IN OPERATION
In Kazakhstan, the rights and freedoms of man and citizen are designed to the highest value and guaranteed by the Constitution. Ensuring the constitutional
81 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» rights requires legal consolidation of some of the limitations of the rights and freedoms of citizens within the framework defined by the Constitution itself. This is the case in any country, and they were required in the Republic of Kazakhstan (RK). They contain the general principles of certain specific sectoral restrictions are criterion of constitutionality, ensure compliance with the necessary balance between the freedom of the individual and the interests of society and the state. In any state set limits of lawful restrictions on rights and freedoms of man and citizen. According to paragraph 5 of Article 12 of the Constitution, which stipulates that "the exercise of the rights and freedoms of man and citizen shall not violate the rights and freedoms of other persons, infringe on the constitutional system and public morals." In other words, man's freedom ends where the freedom of another begins human. Thus, the constitutional and legal bases of limitation of rights and freedoms are part of the mechanism for proper coordination of individual and public interests, and the relationship between individual interests and the interests of society and the state, to ensure their unity and meet their common interests of both society and the state and the person. There are private purposes and private procedure limitations of certain rights and freedoms, but they should be fleshed out only in legislation in accordance with the constitutional and legal framework limits the rights and freedoms of man and citizen. If we turn to the Constitution of the Republic of Kazakhstan, we find legislative consolidation of restrictions on human rights and citizen in Article 39, which provides: 1) The rights and freedoms of man and citizen may be restricted by laws and only to the extent that this is necessary in order to protect the constitutional order, public order, human rights and freedoms, health and morals. In theory and practice the relationship between the state and the individual in the sphere of freedom should be regulated only by laws. The law is the standard formula for human rights. 2) declared unconstitutional any actions capable of upsetting interethnic concord. Inter-ethnic accord involves mutual respect, mutual understanding and of mutually different nationalities forming the people of Kazakhstan. 3) It is not allowed any form of restriction of the rights and freedoms of citizens on political grounds. Paragraph 3 of Article 39 of the Constitution of the Republic of Kazakhstan includes the establishment of prohibiting the restriction of rights and freedoms in whatever form for political reasons. In no event shall not be subject to the rights and freedoms on the grounds: the acquisition and termination of citizenship (Article 10), protection and patronage of the state abroad (Article 11.), Law (Article 13), equality before the law (Article . 14), the right to life to all people, regardless of origin, social, official or property status, sex and religion (Article 15), the inviolability of human dignity (Art. 17), the right to choose the language of communication, education, training and creativity (art. 19), freedom of conscience (art. 22), property rights (Sec. 2, Art. 26) [1, p.60]. This form of the general limitations contained in many constitutions. For
82 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» example, in paragraph 2 of Article 17 of the German Constitution says that restrictions may be imposed only by law. If the restriction serves to protect the free democratic basic order or the existence or the Federal Security or one of the land, the law may specify that on the limitation of not reported to the person concerned and that, instead of appealing to obschesudebnom procedure introduced control by the formed the people's representatives of special and subsidiary bodies [2 ]. Article 16 of the Italian Constitution contains a provision on the admissibility of restrictions on movement in the interest of safety. [3] Currently, the legislation is designed to be the foundation of order in society, the most important part of all regulatory, law is a legal form of implementation of the constitutional provisions, including those dedicated to the limits of the rights and freedoms of man and citizen. However, this legislation does not fulfill the constitutional norms with new content, but only specifies the basic constitutional provisions in the relevant field of legal society. All kinds of restrictions should be considered as special cases of manifestations of the constitutional and legal framework of limitations and should be considered in terms of matching each specific use rights and freedoms with the legitimate interests of different individuals or the state. Therefore, all the sectoral restrictions must meet them. Studying the human rights issues, the lawful restriction of the rights and freedoms acts as an element of the legal mechanism of emergency management. Law "On State of Emergency" provides for the restriction of citizens' rights in all spheres of social life: in state-legal, administrative, economic, ie essentially occurs limit administrative, civil, labor capacity nationals [4]. The main burden of implementing the regime of legal restrictions under the state of emergency shall be organizational and Managerial activity controls. SD Hazanov notes that in its implementation the order of the regulation is the acquisition of certain rights and freedoms, with the result that many people can not be realized by citizens own actions [5, p.60]. Due to limitations of certain rights is an increase poln5omochy public authorities and officials. AG Bratko is considering limiting the administrative capacity of citizens, manifested in the activities of the management bodies, in two forms: a proactive state controls on the use of administrative coercion, narrowing the possibility of citizens to exercise their rights and freedoms, which is reflected in the application of administrative and preventive measures (restriction of freedom of movement on the territory where a state of emergency) introduced. In the second form of additional duties are set a special kind - administrative and legal prohibitions. They are expressed either in the form of issuance of individual prescription to perform certain actions, either through the establishment of a relatively or absolutely prohibiting standards [6, p.39]. As you can see, there is a direct relationship between rights and responsibilities, rights and prohibitions. In the first case, an increase leads to an
83 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» increase rights duties. In the second case, the rights are limited. It would seem that in this situation, must be less than the requirement to comply with a limited amount of rights. However, on the contrary, there are additional charges. Most of the general norms contained in international instruments. In paragraph 1 of Article 4 of the International Covenant on Civil and Political Rights says that during a state of emergency in the state in which the life of the nation is threatened, may take measures derogating from obligations undertaken by the state [7, p.10]. Compliance with this standard requires the fulfillment of certain conditions, first of all, on an emergency needs to be officially announced, ie state, not any organization shall declare the commissioning of such a provision. Secondly, the official announcement of the introduction of such a provision implies that the state informs the population located within the country, as well as such information is of international importance. Third, the deviation from the commitments made, the application of special measures should be proportionate to the arisen situation. In connection with the recent December 16, 2011 riots in Zhanaozen, Mangistau region, in order to ensure public safety, restore law and order, protection of the rights and freedoms of citizens, was the state of emergency for a period of 18 hours 00 minutes December 17, 2011 for a period up to 7 hours 00 minutes, January 5, 2012 [8]. In times of emergency the following measures and temporary restrictions have been taken: - Strengthening the protection of public order, the protection of critical and strategic public facilities as well as facilities that provide vital functions of the population and the operation of transport; - Establishing restrictions on the freedom of movement, including vehicles in Zhanaozen; - Ensure the verification of identity documents of individuals, searches of individuals and their belongings, vehicles; - Restriction of entry to the city of Zhanaozen, Mangistau region, as well as departure from it; - The prohibition of holding meetings, rallies and demonstrations, marches and picketing, as well as entertainment, sports and other public events; - The prohibition of strikes and other means of suspension or termination of activities of legal entities; - The restriction or prohibition of the use of key-duplicating equipment, radio and television broadcasting equipment, audio and video recording equipment, as well as the suspension of sound-amplifying equipment; - Banning the sale of weapons, ammunition, explosives, special means, of poisonous substances, to establish a special regime of circulation of medicines, narcotics, psychotropic substances and precursors, as well as ethyl alcohol, alcoholic beverages;
84 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
- Providing a temporary exemption from individuals of arms and ammunition, toxic substances, and legal persons temporary withdrawal, along with weapons, ammunition and poisonous substances, and combat and training military equipment, explosives and radioactive substances. These restrictions are due to objective circumstances and aim to strengthen the protection of public order, the protection of critical and strategic public facilities as well as facilities that provide vital functions of the population and the operation of transport. Restrictions imposed thus only defined by law, must be necessary and justified by the situation at a certain time entered. According to the Law of the Republic of Kazakhstan "On State of Emergency", in section 5 secured guarantees of the rights and responsibilities of individuals and legal entities, as well as officials in emergency situations. In this section, we can determine the permissibility and the limits of restrictions on rights and freedoms of citizens of the Republic of Kazakhstan in the conditions of a state of emergency. Measures applied in a state of emergency and restriction of the rights and freedoms of natural persons, as well as the rights of legal persons placing on them additional responsibilities should be carried out within the limits of which are caused by circumstances which warrant the imposition of emergency. [1] The use of such measures on the territory of the Republic should not contradict international agreements in the field of human rights. Due to limitations of certain rights is an expansion of the powers of public authorities and officials. Therefore, a detailed regulation of the powers of public authorities in times of emergency. This will ensure that the legal order, help to ensure that the restriction of a fundamental right to be proportional to the intended purpose and nature of fundamental rights will remain unbroken. References: 1. DA Ospanov Constitutional and legal restrictions imposed under the state of emergency in the Republic of Kazakhstan. // Herald TREASURY: a series of legal, 2008. - Special Edition. - S. 60-64. 2. Basic Law of the Federal Republic of Germany of 23 May 1949 (with subsequent amendments and additions until October 20, 1997). - Www.vivovoco.rsl.ru/VV/LAW/BRD.HTM. 3. The Constitution of the Italian Republic. on December 22, 1947. - Www.italia-ru.com/page/konstitutsiya-italyanskoi-respubliki. 4. of the Republic of Kazakhstan Law "On State of Emergency" on February 8, 2003 №387. - Www.mod.gov.kz. 5. Khazanov SD Lawful restriction of administrative and legal status of citizens in emergency situations // Proceedings of the universities. Jurisprudence. - 1991. - №5. - S. 60. 6. Bratko AG Prohibitions in Soviet law. - Saratov, 1979. - S. 39. 7. International Covenant on Civil and Political Rights, New York, December 19, 1966 .: ratified by the Republic of Kazakhstan in accordance with
85 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» the Law of 28 November 2005 № 91-III // Coll. international instruments, and the Republic of Kazakhstan legislation on human rights. - Almaty NGO «OST- XXI Century", 2007. - P. 9-20. 8. introduced a state of emergency in Zhanaozen. 17.12.2011. - www.tengrinews.kz.
KUDABAEV A. Student 4 courses of law faculty Al-Farabi Kazakh National University
Scientific adviser - Ph.D., associate professor Kusaynov D.O.
THE CAREER AND WAGE CIVIL SERVICE SYSTEM IN WORLD PRACTICE
The diversity of the civil service is the number of countries in the world. It may be noted that the country's membership of a particular legal family plays an important role in the aspect of legal organizations public service. Comparing it can be seen that countries with a Romano-Germanic legal system always were considered closer to the lower career system, while the Anglo-Saxon countries or the common law system to the positional system. But on the other hand, the traditional trend of decreases and most countries have a mixed system, taking over from each other certain features. With all the variety and uniqueness of public services around the world are the two main systems: the career and wage. The career system is characterized by the fact that the civil service may only the most lower positions of the control system after the pro-walking long trial period and training in specialized school. State employee entered the service, beginning his career at specific specialty and performing career with appropriately wage increases. This process carried in strict accordance with the legislation. legally set a minimum threshold of education required for admission to the civil service. Staying in the public service is practically a lifetime, once concluded the contract with the state, the citizen to achievements retirement age remains at state service, and can be fired only after the heavy-dis-disciplinary offense. "Career" model implemented in countries such as France, Germany and Japan. Its main feature - the focus on the "closeness" of career and non-material benefits and guarantees in the public service (social protection of civil servants, pension guarantees, the status of stability). Admission to the civil service takes place on the competitive examination on the basis of the principle of equality of all the candidates. The prerequisites for admission are the availability of basic education and special preliminary training. Thus, the public service is based on career development, which is a
86 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» basic principle of "dedication to the service of the state." Salary is determined by a fixed wage grid and legally approved salary. The level of payment depends on the position, length of service and rank public servant. In addition to these "deficiencies" with the common CIS point of view, there is still one¸ that threatens the development of the economy and the state as a whole - the lack of inter-departmental mobility of officials, which became one of the most acute problems of the career model. The main characteristic of wage system is that a public servant was adopted not in accordance with a particular specialty, and in the fief-defined position in accordance with the requirements established public authority and the authorized body of the Public Service. Permanent tenure is not granted, and not a civil servant is promoted, as is the case within the career system. Working conditions, wages and pension depends mainly on the collective agreement. The employment contract is quite flexible and take into account the personal interests employee and needs, as a contracting public authority and the employee shall be settled in the framework of the collective agreement. The legal regime of stay in the public service compare with the regime in the private sector. Review of public services of foreign countries show that there is a tendency to combine typical elements both systems. "Mercenary" model implemented in the US, UK and Canada. The main characteristic of the model is the emphasis on the concept of New Public Management and the system of assessing the quality and performance. Admission to the civil service on the basis of the general type of written exam. At the same time the Anglo-Saxon system of promotion is rugged at all levels. The whole system of administration, education and promotion is organized to create the type of professional manager, administrator generalist. Wages depend on the wage scale and differentiation based on the results of the work. At the same time, for example, the British Civil Service Commission ensures that the establishment of the salaries were competitive with the private sector. In addition, these countries created a flexible system of bonuses and bonuses based on the valuation techniques of government agencies and personnel. Progress through the ranks for the majority of officials is made according to the principles of merit system - selection of the best candidates for promotion on competitive examinations, as well as on the basis of the annual evaluation of their performance.
87 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
KURENKEEVA A. The student of the 4nd course of the law faculty, Al-Farabi Kazakh National University
Scientific adviser - Ph.D., associate professor Kusaynov D.O.
TO THE QUESTION OF THE JUDICIARY IN THE SEPARATION OF POWERS THEORY: THEORETICAL AND LEGAL ASPECTS
For the first time the idea of separation of powers arose in Ancient Greece: Aristotle wrote that in any country it is necessary to distinguish three parts:"A legislative body (national Assembly); administrative or governmental body (master) ; judiciary [1, p. 414]. In the classical form of the idea of separation of powers was formulated W. L. Montesquieu in the book. "The spirit of laws (1748). He warned that the biggest threat generating despotism and injustice, is the concentration of all political power in the same hands. In order to prevent this kind of abuse, it is necessary that one power was restrained by another. Political freedom can only exist where there is no abuse of power. When the separation of powers among the Executive, legislative and judicial in you being Interdependent the scope of their competence, monitor each other and prevent dangerous to the democratic process of concentration of power in one hand. In the system of separation of powers dominant position belongs to the Parliament, because the legislature has the right to define the scope of the activities of the Executive and the judiciary. However, already in early stages of development of the legal aspects of parliaments agree on their content with government agencies. In a presidential Republic head of state has the right to veto (ban ) on legislative acts or to require modification. In turn, the Parliament is able to cancel or slow down the decision of the Executive. All Executive institutions are obliged in some way to coordinate their actions with the Parliament: report to him, and if we are talking about parliamentary republics, even to obtain from Parliament a mandate to carry out its functions. Many parliaments have the right to bring charges against senior government officials and hold them accountable (impeachment proceedings), if they acted in a manner prejudicial to the national interest. However, the main guarantor of the observance of legality in the activities of the Executive and legislative powers, the arbitrator in the event of any contradictions between them is the judiciary [2, p. 216]. As noted by N. A. Nazarbayev, the national judicial system has become a reliable guarantee of stability in society, rule of law, strict observance of the interests of society and state, protection of the rights and freedoms of the people
88 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» of Kazakhstan. "That is the highest meaning of service to the people of the judicial community of Kazakhstan. This is the main duty of judges of Kazakhstan in hard work to implement the Strategy-2050. I am convinced that more than two- thousand judiciary Kazakhstan will contribute to the realization of our goals and objectives for the renewal and strengthening of our country", - said the President of Kazakhstan[3]. However, the classical understanding of the theory of separation of powers implies, in the words of K. H. Khalikov said: "the three branches of power are interrelated and operate within a common strategic objectives of the state, and at the same time each of them is independent and has definitely specific action space. Such an organization of state power, with its reasonably-optimal implementation may rely on the effect of the policy and its effectiveness"[4, p.3]. The high status of the laws, according to L. M. Abdullins, is a critical tool for the preservation and expansion of individual freedom and to protect people from abuse[5, p. 26]. These opinions could not be more consistent with the author's definition of the concept of the judiciary, proposed by A. N. Jailganovs, and consists in the fact that it is "an independent branch of state power represented by state agencies established pursuant to the Constitution and the law, working to resolve legal disputes in the society and needs of the society in the protection of his interests"[6,p. 39]. Established in the majority of countries with democratic regimes, including Kazakhstan, the system of separation of powers means this form of organization of state power, where possible, in the words of R. M. of Shaekin, "the constitutional unity of interacting state and non-state social institutions that ensure the participation of the people in the management of the Affairs of society and state" i.e. the possibility of legal consensus [7,p. 8]. It is at such a functional institutional arrangements in society can be secured guarantees of freedom, independence and ownership. The reality of law reflects a compromise of colliding interests and will of the various social groups and forces, and is guaranteed by the interaction between the legislative and Executive authorities. The absolute sovereignty of power, if he ever was in nature, excludes the possibility of mutual influence and mutual control of the authorities. However, political practice, in retrospect, shows that, essentially, element of good governance, the principle of separation of powers at the same time can serve as an objective basis for the origin and development of legal conflicts, namely the debate about the competence of the authorities, based on the inconsistency of regulations, disputes about the forms and procedures of the relationship of the authority; conflicts arising from the weave of internal
89 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» problems, relations with political parties and movements, and others In the broader context of the conflict involved all elements, including those which is not identified with branches [8, p. 27-28]. Strict separation of powers into legislative, Executive and judicial theoretically makes it impossible or significantly restricts administrative and judicial arbitrariness, subjecting the state power in the interests of society and individuals in it. The theory about the need for the full balance, independence, and even the separation of powers in combination with the concepts of balance of powers and checks and balances put in the basis of the state system in the countries of traditional democracy. In legal doctrine, the traditional competence of the separation of powers has been fairly criticized. So, I. J. Foinitskii wrote: "In the system Montesquieu certain types of state authority have not uniting their item and is not organic parts of the whole, and forces hostile to each other and are constantly fighting for their independence" [9,p. 159]. According to N. N. Polanski, "the Supreme power is indivisible... in fact it's all one and the same state power, but manifested in legislation, administration and justice." He noted that "three equal authorities, or the authorities could not be; one of them must belong to domination over others"[10, p. 14-17]. Domestic legal science more impressed views about the unity of the Supreme power belongs to the people and manifests in three different forms - legislative, Executive and judicial authorities. The development of these teachings helped to create the basis for a harmonious theory of separation of powers in a modern state. He was one of the first identified the functional role of the court as the guarantor of inviolability of human freedom. In the rule of law the judiciary alongside legislative and Executive authorities, acts as an integral system component referred to as the "Separation of powers". The principle of separation of powers implies not only functional autonomy and independence from each other selected sectors (branches) of government - legislative, Executive and judicial - and their coordination, coherence in the interaction, as well internal control. Functional autonomy and independence of each of the authorities is not possible to speak of leading value, primacy, priority of any of them. Thus, "the doctrine of separation of governmental functions" can be completely integrated into the system of the denial of the separation of powers as such with replacing it with a system of separation of functions. As the "Soviet model", denying the separation of powers and the concept of "separation of functions" can be opposed to the separation of powers inherent in Western democracies. There is no doubt that the theory of separation of powers is the idea of the
90 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» unity and integrity of the government. But it requires additional consideration of the issue of hierarchy in the system of separation of powers. The most common is the assertion against the hierarchy and functionality of power, preference is given, as a rule, the functional principle of separation of powers. Typical is the statement: the separation of powers into legislative, Executive and judiciary is not hierarchical, and functional principle. So, if J. Lock identified three branches of government: legislative, Executive (government and judicial authority) and Federal (powers in foreign policy), B. Constants believed that there are the following branches: 1) Royal (Neutral or intermediary) power; 2) the Executive power; 3) permanent representative power ( the power of the hereditary house of peers); 4) the power of public opinion (the power of selective lower chamber); 5) the judicial power, as well as special (now sixth) is the branch of municipal government[11]. By way of implementation of the judiciary is the administration of justice, and the relationship between the concepts of "justice" and "judicial power" in legal science solved ambiguous. Of course, both concepts are closely interrelated and interdependent, justice-the kind of state activity, which is carried out by the courts in procedural form to protect the rights of citizens and enforcement of laws and is in the resolution of conflicts arising from the application of the law, submission to oblige them solutions and applications in necessary cases, significant measures of state coercion [6, p. 78]. But justice is not the only possible implementation of the judiciary. You should take into account the fact that the peculiarity of the judiciary as one of the branches of government is that its competence extends to all without exception, the President and the government, and Parliament, and on all public bodies, to all the institutions of civil society. In addition, the judicial power is manifested and a public element, in particular, the courts with the participation of jurors, particularly it is distinguished from Executive power [12, p. 17-[18]. The judiciary is a separate and independent branch of the single state authority of the Republic of Kazakhstan, created for authorization on the basis of the Constitution and laws of social conflicts between the state and citizens, by citizens, legal persons; protection of the rights of citizens in their relations with the Executive bodies and officials; Control over observance of the rights of citizens in the investigation of crimes and carrying out the operational - search activity; establish the most important legal facts and conditions. "The court is a necessary element of the normal functioning of civil society, says in this regard, K. A. Mami, the guarantor of observance of rules and the needs of society. The court is a sort of illustration of the reality of the
91 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» intentions of the authorities to maintain public order, and in this sense it should be considered as an important component of the rule of law is a social phenomenon that support the best possible balance of interests of social, economic and ideological stratified society" [13, p 17]. Reference: 1. Aristotle. Policy. Op. 4 T. - M.,1983. - T. 4. - p. 514. 2. Philosophy: an encyclopedic dictionary. - M.: Gardariki. edited by space A. A. Ivin. 2004.-566 p. 3. http://strategy2050.kz/ru/news/3435. 4. Khalikov K. H. Problems of the judiciary in the Republic of Kazakhstan ( theoretic value and the criminal procedure study): author. ... Prof. jorid. Sciences: 12.00.01, 12.00.09. - Almaty, 1998. - 50 p. 5. Abdulina L. M. Personal human rights in the constitutional law of the CIS countries: a comparative legal study: Diss. ... candles. jorid. Sciences: 12.00.02 - Almaty, 2008. - 131 p. 6. Jailganova A. N. Organizational and legal support of court activities in the Republic of Kazakhstan: Diss. ... candles. jorid. Sciences: 12.00.11. - Almaty, 2002. - 135 p. 7. Shaekin R. M. The constitutional basis for the functioning of the political system of the Republic of Kazakhstan: Diss. ... candles. jorid. Sciences: 12.00.02. - Almaty, 2006. - 130 p. 8. Kopabaev O. K. Constitutional and legal basis for the organization and functioning of state authorities of the Republic of Kazakhstan: author. ... Prof. jorid. Sciences. - Almaty, 2000. - 51 S. 9. Foinitskii I. J. The course of criminal proceedings - SPB.: Alpha, 1996. - 552 S. 10. Polanski N. N. The criminal process. Criminal court, its structure and activities. - M.,1911. –S. 14-17. 11. Constants B. Acting On the freedom of the ancient in its comparison with the freedom of modern humans //http://www.humanities.edu.ru/db/msg/81517 12. Buleyliev B. T. legal basis of the jury in the Republic of Kazakhstan: history and modernity: author. ... candles. jorid. Sciences: 12.00.11. - Almaty, 2007. - 23 p. 13. Mami K. A. Formation and development of the judiciary in the Republic of Kazakhstan. - Astana: Elord, 2001. - 352 p.
92 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
ABDRAHIMOV L.R. Graduate student of the law faculty of Al-Farabi Kazakh National University
Scientific adviser - Doctor of Law, Professor G.R. Useinova
ISSUES OF LEGAL LIABILITY
It's no secret that one of the main tasks of the state is to ensure the rule of law, prevention and suppression of offenses, the maximum possible removal of the damage caused by them to society and the law-and-order. In this regard, a greater role is given to the science of law. It should be noted that the legal liability issues are analyzed and elaborated by a general theory of law and legal industry disciplines. Often, the legal liability is considered in close connection with the offense, since the latter is the only basis of liability. The Kazakh and Russian legal literature few works specifically devoted to the legal liability institution. However, this problem in various aspects considered in the works of S.S. Alekseev, V.D. Ardashkin, B.T. Bazylev, D.N. Bakhrakh, J.M. Brainin, S.N. Bratusya, I.A. Galagan, V.M. Gorshenev, M.V. Zadneprovskaya, A.S. Ibrayeva, S.G. Kelina, V.I. Kurlandsky, V.M. Lazarev, N.S. Leikina, O.E. Leist, B.L. Nazarov, P.E. Nedbaylo, A.A. Piontkovsky and others. In the development of this issue, there are several undeniable achievements. However, the very concept, and a number of key problems associated with it - the subject of ongoing multi-year debate. So far, in jurisprudence there is no unity of opinion on the concept of legal liability institute, its legal nature and the functional purpose, as well as the number of elements that make up this legal institution. Often, in scientific research there is a mixture of terminology, the identification of the concepts of "legal liability type" and "specific legal liability institute», controversial issues on classification of the types of legal liability institutions, also there is no unity of opinion about how much there are legal liability branch institutes and whether all branches of law contain it in their structure. The problem of legal liability excited the best minds of mankind since those distant times when the right arose and there was his inseparable companion in the early class society - an offense. For many years the theoretical and legal thought looking for an answer to the question: "What are the causes of the offense? Why illegal behavior arises? " Liability is an integral attribute of freedom. Liability and freedom are inseparable categories. Freedom without liability is transformed into its opposite - arbitrariness. Liability presupposes freedom: the fuller the freedom, the greater the liability. These well-known provisions are embodied in the Constitution of the Republic of Kazakhstan.
93 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
According to art. 2 of the Constitution of the Republic of Kazakhstan: "Man, his rights and freedoms are the supreme value. The recognition, observance and protection of the rights and freedoms of man and citizen are the duty of the state "[1]. Legal liability is one of the fundamental categories of jurisprudence. In its study, it must be borne in mind that it is a one of the types of social responsibility of the individual. The peculiarity of legal liability as a form of social responsibility is in its application exclusively by the state and its bodies. Legal liability is incurred in the case of the crime regardless of the will and desire of offender. This is state-coercive nature of legal liability. It is always associated with endurance of certain hardship; a person for a specified period of time may be deprived of his liberty, any special rights, as well as a certain part of civil, political and economic rights. What does the term "legal liability" mean? In general, there are many interpretations of legal liability. The most common interpretation of the legal liability concept is a state coercion as a reaction to the crime, i.e. an infringement of the law. Here you can highlight a number of important points: firstly, the liability is inextricably linked to the offense; secondly, the liability is reflected in the use of state coercion to the offender; thirdly, in the very act coercive the actions of the offender are condemned. Legal liability is a complex social phenomenon. It comes as a result of violations of the requirements of legal norms, and manifests itself in the form of application to the offender of state coercion. An important feature of the legal liability is the fact that it is determined by the state and is used by its competent authorities. The basis of legal liability is an offense. . If the subject's behavior does not fall under the indications of a crime, that person shall not be subject to legal liability. Subjective prerequisite for any legal liability in any of its value is the freedom of the will. Without free will there is no fault, no fault no liability for the wrongful act. Even F. Engels believed that "a person only responsible for his actions, if he made them, having complete freedom of will." A person deprived of free will cannot be blamed. An innocent person cannot be considered to be liable. There are four main types of legal liability for the offense (crime) in the theory of law: disciplinary, administrative, civil and criminal. Each type of crime creates a corresponding form of legal liability. The role of legal liability, in general, is reduced to an embodiment of the three fundamental directions in public life: repressive and punitive, preventive and educational and restorative and compensatory. Wherein restorative, punitive and educational (preventive) legal liability functions are not performed separately but in combination. [2] Legal liability can be imposed only under certain legal and factual grounds. These grounds are: rule of law providing the possibility of liability for a wrongful act; offense, legally significant signs of the last reflect the design of "corpus delicti". The offense is a legal fact that entails which entails the emergence of legal enforcement. Enforcement act which is specified watchdog rule of law, is determined by the specific type and measure of legal liability (verdict, the decision
94 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» on the imposition of an administrative penalty, etc.). Defining the grounds of legal liability depends on its understanding, as well as the determining of the moment of its occurrence [3]. If the legal liability is a duty to endure certain hardships, it may occur from the time of a crime, or from the time of the perpetrator’s detection (who should bear the corresponding liability) and application of restrictions relevant to his unlawful conduct or from the moment of the enforcement act: in this regard, there are different points of view. In the first two cases, the basis of legal liability will be just the rule of law and fact of the offense; enforcement act which identifies the specific type and measure of punishment, acting as a base of not occurrence but the implementation of legal liability. In the third case the act of enforcement is the base of occurrence of legal liability. If to talk about legal liability as a measure of state coercion applied to the offender, then it arises from the moment of the enforcement act, and among the essential grounds of its occurrence indicates the rule of law, the fact of the offense and the enforcement act. The main objectives of legal liability should be considered the maintenance of the law-and-order and education of citizens to respect the law. In our opinion we need constant work to improve the system of application of legal liability, to increase its effectiveness (persuasion measures, measures of social influence) in order to successfully solve the task of the crime eradication in the Republic of Kazakhstan. It will encourage the proper performance of the legal duties by the citizens, being thus a mean of crime prevention in the future [4]. References: 1. Constitution of the Republic of Kazakhstan dated August 30, 1995 2. Theory of state and law: the textbook / A.V.Malko - M: Knorus, 2006 3. Theory of state and law: the textbook / under the editorship of A.U. Beysenovoy - Almaty, Atamura, 2006 4. Hachaturov R.L., R.G. Yagutin Legal liability. - Togliatti, 1995.
ZHANGABYLOVA M.G. Faculty of Law, Al-Farabi Kazakh National University
Scientific adviser - Tursynkulova D.A., Candidate of Law, associate professor of the Chair of State and Law Theory and history, Constitutional and Administrative Law, Faculty of Law, al-Farabi Kazakh National University, Almaty, Kazakhstan
FEATURES OF LEGAL REGULATION OF OBLIGATION RELATIONS IN TRADITIONAL KAZAKH SOCIETY
The current legal system of the Republic of Kazakhstan, the traditional ancient law system is divided into public law and private law. Civil rights as law into its own as one of the daily life of society, to the everyday life of people with him, the state itself, its administrative-territorial
95 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» excrement, so to speak, a certain state is closely related to the life of the system. Therefore, it is very difficult to identify the subject of civil law. To determine its civil law, regulation, public relations skills. Well, it is a multifaceted relationship, even a variety of political and economic situation be changed a little bit, it could lead to new types of relations. However, the right to determine what belongs to the field of knowledge, through the use of its subject and method of legal regulation of deprivation of the distinction between the spheres of civil law other law and it is quite possible to identify the specifics of the industry. After all, the law is disconnected from the system such methods branches of law. Then we will be analyzing the right commitment. Traditional Kazakh stock exchange or the subject of civil rights based on the fairness of the equality of participants in the commodity-money relations and other relations, as well as made not to relations arising from personal relationships. Also, does not allow the relationship to personal relationships, which stipulates the rules of customary law. Thus, all governed by civil law, public relations, material well-being in the relationship, Kazakh customs sector classification, separating the criminal or civil trial by jury was not to be reviewed. Today, property, liability, inheritance, family relations, civil rights, then the acquisition of property, possession, transfer and use of relations with the traditions, but relations do not wear that heading, given to the jury. Even the traditional legal system in the current constitutional law, civil law, administrative law, criminal law, civil law, environmental law, etc. that room. Civil relationship with the participants of a right-fledged, independent entities, each of which is equal to the relationship between private property from one of the subjects of the degree of civil law that cannot be a one-sided obligation. As well as traditional law system, one-sided contracts and commitments. Commitment Kazakh society as the legal responsibility of bilateral legal relations. That is, free of responsibility until the bilateral legal relations. Now, unilateral legal relationships, sharing regard to the legal relations, unilateral commitment, called a shared commitment. Civil rights arising from compliance with the requirements and standards is the relationship between the parties based on civil law relations. Civil law relations are reflected in the day-to-day life. For example, there is between the seller and the buyer in the purchase. The obligation on the buyer to pay a certain fee to the property of the buyer and the seller sold the property, if the quality is poor, it is an object exchange, for which there is no return. Liabilities contractual deal with the foundations for the emergence of some damage to property and livestock. In general liability as part of a large complex chemical structure of its content, the features of objects and subjects of commitment on the obligation to read a positive and negative depending on the nature of the contents of a unilateral commitment, partnership of mutual commitment, a clear definition of the
96 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» behavior of the debtor liability, alternative liability, contractual liability, unilateral can be identified as free of obligation. Mostly bilateral commitment Kazakh society is often used. Commitment to a positive and negative obligation of the secret distribution of the debtor and the creditor's action is to determine the nature and depth of the customer. A positive commitment between two people has signed a deal to create a certain action, the performer will do the same, and the customer has the right to demand the implementation of the action. Negative liability as an artist a certain freedom to refuse to act, the right to say to the refusal of the customer. When, is only one of a unilateral obligation law, only the second goal. When, to each of the bilateral commitments of each party, will be right. Strict liability for another person, animal damage to property as a result of the jury verdict issued by the court. Share a common liability partnership, or livestock to meet shared between the activity engaged in actions. Defined, specific commitments attached to the performer's actions, his replacement will be made only with the consent of the customer. Alternatively, the task entrusted to fulfill the obligation by selecting one of the more exercise. When any society liability may not be simple. There is only one job to another is forced to take action in advance to find a performer of such transaction, and the agreement in the presence of witnesses. The obligation of the traditional Kazakh society itself, in the presence of witnesses (for example, boots, sewing, riding harness sew a headdress, caravan, porters, camel, rent, etc.) are carried out. Well, most of the action is not paying the current execution of orders. He (for example, digging wells logging, dam construction, livestock, etc.), the traditional ritual institutions (Asar, heating, public, mutual aid). Kazakh company mainly bilateral agreements are often used. They are buying and selling, the family loan and property in the right place supply, transportation, instructing, etc. meet. Similarly, the contract may be paid or unpaid. Paid perform the executive duties for the agreement. And free gift, car- free use, storage obligations. As for the content of the contracts, which may be different? However, its content is contrary to the norms of customary law, should not be an obstacle. For example, the second grazing hires someone to someone other payments clothes, food and drink, and watered the animals spread at the time of the artist, to prevent animal mortality. If you have a dispute with two of its obligation to review the system of customary law judge’s relations will be decided in accordance with the rules of the Rule. Commitment to the customs of Kazakh law system is simple, is the youngest and the meaning and structure of national development. Therefore,
97 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» viable and democratic characteristics. However, people's property under leadership of Russia was weakening from the yoke of colonial times, the liability relations people laugh, and points of view have been strengthened. Previously, "promises to be a god," said of the deal, an agreement was not hurt. Reference: 1. Kenzhaliev Z.Zh. Traditional legal culture in nomad Kazakh society
MAMONOVA A. A. 4st year student of the Faculty of Law, Al-Farabi Kazakh National University
Scientific adviser - PhD, associate professor Ospanova DA
MUTUAL RELATIONS OF ACIMATES WITH MASLIKHATS IN THE REPUBLIC OF KAZAKHSTAN
Local public administration - activities carried out by local representative (IGOs) and executive bodies (IPI) for the purpose of public policy in the relevant territory and its development within the competence defined by this Law and other legislative acts, as well as being responsible for the state of affairs of the respective territory. [1] Local executive body (akimat) - collegial executive body, headed by akim of the region (city of republican status, capital), region (city of regional significance), carries within its competence, the local public administration in the respective territory [1], he is the President and Government of the Republic in area. The local representative body (maslikhat) - an elected body, elected by the population of the region (city of republican status, capital) or county (city of regional significance), which expresses the will of the population and in accordance with the legislation of the Republic of Kazakhstan determines the measures necessary for its implementation, and monitoring their implementation . [1] Maslikhat is competent on the condition that not less than 3/4 of the total number of its deputies. Participating in the work of Maslikhat and its agencies, the deputies solve important questions of state, economic, social and cultural development, take-laws and other decisions according to their competence, promote the conduct of their lives, and exercise control over the observance of laws of Kazakhstan and local representative of decisions and executive bodies. [2] Maslikhat deputies working in the maslikhat on the basis of the liberated, may not hold other paid offices except teaching, scientific and creative activity, may not engage in entrepreneurial activity, enter a managing or supervisory body of a commercial organization. [2] Unlike most countries in Kazakhstan local governance is entrusted not only
98 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» to the local public administration, but also on the local elected representative bodies - maslikhats and local executive bodies - akimats. The Constitution defines only the most important issues of the competence of maslikhats and local executive bodies, stating that the jurisdiction of maslikhats, procedure of their organization and activity, and legal status of their deputies, as well as the powers and activities of local executive bodies, established by law. Such a law today - the Law "On local governance in the Republic of Kazakhstan" dated January 23, 2001 N 148. [3] According to Art. 86 of the Constitution Maslikhats express the will of the population of respective administrative-territorial units, and taking into account the national interests determine the measures needed for its realization, and control their implementation. The jurisdiction of maslikhats include: 1) approval of plans, economic and social programs for development of the territory, local budget and reports on their performance; 2) The decision referred to them by the issues of local administrative- territorial unit; 3) consideration of reports by heads of local executive bodies on the issues delegated by law to the jurisdiction of a maslikhat; 4) formation of standing commissions and other working bodies of a maslikhat, hearing reports on their activity, decision of other issues connected with the organization of work of a maslikhat; 5) implementation in accordance with the legislation of the Republic of other powers to protect the rights and legitimate interests of citizens. Maslikhats - collective bodies, so referred to them by the most important issues they can address and resolve regularly convened sessions, in permanent and other commissions. Session is the main form of maslikhat activities. The powers of a maslikhat may be early terminated by the decision of the Senate on the grounds and in the manner prescribed by law, as well as in the case of a decision to dissolve. The Constitution in Art. 87 defines the legal basis for the organization and activities of local authorities. The local executive bodies are part of a single system of executive bodies of the Republic of Kazakhstan, and ensure implementation of the state policy of the executive power in conjunction with the interests and development needs of the respective territory. The jurisdiction of local executive bodies of the Constitution are: 1) The development of plans, economic and social programs for development of the territory, local budget and provision of their realization; 2) management of public property; 3) appointment and dismissal of heads of local executive bodies, resolution of other issues connected with the work of local executive bodies; 4) implementation in the interests of local government other powers delegated to local executive bodies by the legislation of the republic.
99 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
As mentioned above, the IPI headed by akim of the respective administrative-territorial unit who is a representative of the President of the Republic and the Government, and because his position is not elective. Akims of regions, cities and the capital are appointed by the President of the Republic on the recommendation of the Prime Minister. The akims of other administrative- territorial units are appointed in the manner determined by the President. Existing legislation now stipulates that the mayors of the administrative- territorial units lower than the regional level are assigned a senior akim. The local executive body created by industry and functional departments, offices and other structural units, which manage the respective subordinate agencies territory, organizations, enterprises of corresponding branches. The President has the discretion to dismiss any of the akims. In addition, the powers of akims of the oblasts, cities of republican significance and the capital are terminated when a newly elected President of the Republic. In addition, according to the hour. 5, Art. 87 of the Constitution maslikhat is entitled to 2/3 of the total number of its deputies to express confidence in the akim and raise the issue of his release from office respectively before Prezi¬dentom Republic or a senior akim According to Part. 1, Art. 88 of the Constitution of maslikhats take on the issues of their jurisdiction, akims and - the decisions and orders that are binding on the territory of the respective administrative-territorial unit. Decisions of maslikhats not corresponding to the Constitution and laws of the Republic, may be canceled by the courts. Projects of decisions providing for the reduction in income or an increase in the local budget, can only be considered if a positive resolution of the akim. This provision, which requires it is a positive resolution of the akim, is crucial for clipping populist projects, as well as making the legislative process more honest. The decisions and orders of akims may be respectively annulled by the President, the Government or a senior akim, as well as in court. Relations between the local representative and ispolni¬telnyh bodies have a number of features that show the complexity of this relationship. In accordance with the Law "On local representative and executive bodies of the Republic of Kazakhstan" and akimat maslikhat relations are based on the principle of separation of powers. However, the legislation provides for a procedure for implementing powers when representative bodies have no influence on the personnel policy of akimat. Appointment and dismissal of heads of local executive authorities carried out personally akim, although the effective operation of these entities depends on a number of tasks facing the maslikhats. The right to express no confidence in maslikhat akim and raise the issue of his release from office is not accompanied by the establishment of the possible consequences of such a decision and is therefore no more than a recommendation. Extra-budgetary funds is completely handed over to the
100 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» governors. Revision Commission Maslikhats lost the right to control the use of budgetary funds and general financial and economic activities of the governors, except for budget spending. Act local representative and executive bodies of a mechanism of solving disputes between maslikhat and akim. They have the right to demand the cancellation of decisions of each other, if the decision, according to the objecting authority, contrary to the laws of the Republic either not provided financial or organizational means that suspend the execution of the illegal decision. References: 1. The Law "On local governance in the Republic of Kazakhstan" dated January 23, 2001 N 148 2. February 1st Law "On the status of deputies of maslikhats of the Republic of Kazakhstan" dated April 13, 2006 3. The newspaper "Kazakhstanskaya Pravda" dated January 30, 2001 N 25-26 4. The Constitution of the Republic of Kazakhstan from August 30, 1995 5. Constitutional (state) law of foreign countries, a group of authors 2001
MAMYTKHAN M. M. 4st year student of law faculty Al-Farabi Kazakh National University
Scientific adviser - candidate of juridical sciences, associate professor Ospanova D.A.
ADMINISTRATIVE AND LEGAL STATUS OF JURIDICAL ENTITIES
Many branches of the law of the Republic of Kazakhstan endure the revival today, coming back to true understanding of the nature and mission, reinterpreting the subject, methods of the legal regulation and impact tools on the public relations. One of which by rights is the administrative law of the Republic of Kazakhstan. The administrative law is one of the leading law branches of the Republic of Kazakhstan, which represents set of the obligatory, formal and certain legal norms governing the public relations, developing in the course of the executive authority organization and activity. The executive authority represents one of three branches of the government whose main objective is ensuring public administration in general and each branch of the society and state activity. Mainly, it is the largest element in the system of all state power. The main interest for administrative law is represented by management activity of executive authorities, and also activity of public administration bodies,
101 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» it both daily and operational management is the center of focusing of administrative law. But, it is necessary to emphasize that administrative law is not only branch of the national law of RK, which serves interests of public administration and public management in general, its circle of regulation is rather wide. Thus, the administrative law is directed to protection of the individual and organizations from illegal actions of public authorities, on the basis of granting them rights and guarantees, by fixing an activity order of public authorities, the rights and duties of public officials, and also their legal responsibility in cases of violation the Legislation of RK by them and abuses of their official powers. During the modern period the main task of administrative law is the harmonious coordination of various interests in the sphere of public administration aimed at regulation of public relations, protection of public order and implementation of society safety. While studying administrative law first of all a question of its subjects occurs. As a rule, they are persons endowed with the rights and duties in the sphere of public administration and capable to realize them in administrative legal relationship. The subjects of administrative law are both individuals and legal entities. By consideration of subjects classification in this branch of law it was already specified that one of those are individuals. An organization which pursue the recovery of income as the primary purpose of the activity (commercial organization) or doesn’t have gaining income as a goal and doesn’t distribute any net income between the parties (non-profit organization) shall be recognized as the legal entity. A legal entity shall have a seal with its name [1]. Also institutions, the enterprises and public associations belong to category of the legal entities. All legal entities have certain rights and perform certain duties before the state, whose legal character is expressed in their legal fixing, namely in the Legislation and other acts of RK which are accurately regulate these legal relationship. As those are considered, the rights for creation, reorganization and liquidation of legal entity, the right for non-interference to the internal affairs from the state, a right of defense of the own basic rights and freedoms, and also interests including, directly, on the judicial or administrative complaint. It is necessary to remember that endowment with certain rights and duties depends directly on the status of the legal entity, for example, political parties have the rights for information distribution on the activity and promotion of the purposes and tasks, for integration on a voluntary basis in associations (unions), electoral blocs, for holding assemblies, meetings and demonstrations, processions and other actions [2]. And, therefore, the status of the legal entity has a direct bearing on the creation purposes and its main tasks that is regulated by a set of normative legal acts, such as laws of the Republic of Kazakhstan "About political parties", "About public associations", "About religious associations", the Civil Code of RK.
102 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
The feature of existence of the organizations having the legal entities status is the fact that they are subject to obligatory state registration in judicial authorities and are considered created from the moment of their state registration. The legal competence of a legal entity shall arise at the moment of its creation and it shall cease at the time of completion of its liquidation. The legal competence of a legal entity in a sphere of activities which requires a license shall arise from the moment of the procurement of such a license and it shall cease at the moment of its revocation, expiry of the term of its validity or recognition of it as invalid in accordance with the procedure established by legislative acts [2]. The obligations of legal entities are a tax payment, the creation a condition for public authorities for duties execution by them, a providing necessary documents and information, a maintaining the necessary reporting and other activity provided by the Legislation of RK. The state in turn not only grants the rights and duties to legal entities, it by means of precepts of law exerts direct impact on their emergence and activity. So, for example, concerning the organizations, the state defines their legal form, fixes the forbidden kinds of activity of the organizations on the basis of definitions or installs system of governing bodies of them. The most important element of the legal entities administrative status includes administrative and legal guarantees of their basic rights and interests. In this case tasks of the state are on an equal basis with ensuring the rights of the organizations, institutions, enterprises, the creation of equal opportunities for their activity realization, according to their purposes and tasks. There are also public authorities called on protection and security of the rights for the competition, and on regulation of natural monopolies. The great attention of the state is concentrated on guarantees of an entrepreneurial activity. After all, one of subjects of administrative law is the persons who engage an entrepreneurial activity, who carry out commercial activity for the purpose of receiving profit under the risk. This category has to obtain the license for commission of a certain type of the entrepreneurial activity, and if it is necessary the qualification certificate, that is to say these persons have to be endowed with special rights. The guarantees for the subjects who are carrying out the entrepreneurial activity are expressed in the following: granting the right to taking information, uniform registration of the enterprise organizations as the legal entity, restriction and a strict regulation of checks conducting, prohibiting acceptances by public authorities the legal acts providing a privileged position of separately taken subjects of private business and many other things [3]. Particularly, all guarantees of this subjects category are specified in the Law of the Republic of Kazakhstan on January 31, 2006 "About private business". And besides, legal entities as subjects of administrative law bear administrative responsibility for commission of administrative offenses. Also it is necessary to know that even some structural
103 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» divisions of the organization act as independent subjects of administrative responsibility. Thus, on the basis of foregoing, it is accurately visible that a range of the legal entities which are subjects of administrative law is wide enough. It is explained also by high importance of this branch of the law in our country which is expressed in the most various directions. Namely, the administrative law plays a major role providing order and a homeland security of RK. It is connected with the fact that the numerous legal norms participating in streamlining of the public relations are contained, as a rule, in administrative law. Reference: 1. The Civil Code of the Republic of Kazakhstan on December 27, 1994 2. The law of the Republic of Kazakhstan "About Political Parties" on July 15, 2002 3. The law of the Republic of Kazakhstan "About Private Business" on January 31, 2006 4. Podoprigora R. A. "Administrative law" (2010) 5. Taranov A.A. "Administrative law of the Republic of Kazakhstan" (1998)
MUKHTAROV M.M. Undergraduate 2-course, Faculty of Law KazNU name Al-Farabi
Scientific adviser - S.A. Sartaev, Candidate of Law, associate professor of the chair of State and Law theory and History, Constitutional and Administrative law, Law faculty, al-Farabi KazNU
THE CONTENT AND IMPLEMENTATION OF THE PRINCIPLES OF LEGAL LIABILITY
The basic principle of the rule of law is legal liability. This means that the responsibility for the offence only applies that is guilty of a wrongful act committed by the delictual face. In carrying out the responsibility of the law prohibiting any act should not be given retroactive effect already on the grounds that the law regulates volitional behavior of people commensurable their actions with their legal assessment. For the same reason, must be known beforehand what (which) punishment or recovery action will be applied to those who would commit such an offence. Giving retroactive law, conclude a penalty or punishment, is not valid because the social purpose and prohibitions and sanctions (threats for their breach) is to affect the choice of a particular line of conduct (if I knew that would be punished so strongly — that would not). On the contrary, the Act repealing the ban or to facilitate the recovery of a penalty, must be retroactive, because the penalty for an
104 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» act which had previously considered a crime, and now is not considered or punished less severely, not only contradicts humanity and justice, but calls in the public mind, criminal acts, deeds, sharp and dangerous and less harmful [1]. Legality of responsibility and that the circumstances of the case study about the offense, application and implementation of sanctions, especially stringent, is carried out in a procedural form, contains guarantees of fair consideration and decision of the case, ensuring the rights and legitimate interests of the persons involved to justice. The legislation defined special guarantees of legality, warning and stop going beyond the law, abuse and errors in applying substantive law (incorrect legal qualifications Act, the definition of punishment or punishments outside the sanctions) and rules of procedure (violation of the procedure for the consideration of the case study evidence, make a decision, its appeal and implementation, etc.) [2]. With the rule of law is closely connected the validity of liability, defined as: firstly, an objective investigation of the circumstances of the case, collection and comprehensive assessment of all relevant evidence, well-reasoned conclusion about whether there had been an offence, is guilty of this person prosecuted, whether application of statutory sanction; Secondly, the definition of specific penalties, penalties, redress in accordance with the criteria established by law. As noted, exemplary, punitive sanctions are relatively certain that allows when applying punishment or punishments take into account the circumstances of a particular case (particularly a misdemeanor offender characteristics, etc.). Selection of specific penalties or foreclosure within a relatively specific sanctions should be based on a thorough examination of the case and taking into account the mitigating and aggravating circumstances. When applying the right to rehabilitation sanctions also addressed the issue of whether the offence was committed, but the concretization of the sanctions dealt with other problems: the scope and compensation for harm caused (or sometimes on the possibility of reducing or installment payments), about how to remedy the wrongful State, for damages and prejudice, etc. The principles of responsibility often relate her justice. With regard to the responsibility this principle should include first and foremost the socio-ethical evaluation of legislation defining the ban and sanction for its breach, in relations of responsibility. The crux of the matter is that the careful observance of all principles of liability it would be unfair if the offender in accordance with the applicable law is subjected to excessively harsh or overly mild penalties or foreclosure. In other words, equitable responsibility lies first and foremost respect for the legislator of the principle of proportionality of the offence and sanctions [3]. When implementing responsibility about its fairness appropriate to speak and when the offender in accordance with the circumstances of the case is
105 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» assigned to a specific penalty or penalties based on the relatively specific sanctions (this particular measure must be legitimate and justified). Finally, the independent principle of Justice responsibility for one offence the perpetrator can be applied only one penalty, punitive sanction. International rights covenants enshrine the principle that no one shall be held criminally or twice any other responsibility for the same offence. This means that no one shall be liable to be tried or punished again for an offence for which she has already been finally convicted or acquitted in accordance with the law and penal procedure law. The principle of "not twice for" refers to the application of penal, punitive sanctions and does not contradict the fact that an offender subjected to a punitive liability, are right to rehabilitation sanctions if his act caused material damage or other harm (plunderer not only be punished, but the collected amount stolen; the bully, smashed window, is punished for hooliganism and moreover shall compensate the damage). Furthermore, the very penalty sanction can contain multiple law-enforcement (deprivation of liberty + seizure + of depriving the right to occupy certain positions) [4]. The principle of responsibility is adversarial process and the right to the protection of the persons involved to justice. This principle is established in the Suppression of the feudal regime and unshakable inquisitorial, accusatory process. Competitiveness is an important means of reaching the truth in the case of an offence, and ensuring the validity of the decision, a way to overcome the conviction bias in the investigation of offences, the guarantee of the rights of the persons involved to justice. A person who is liable, i.e. officially accused of committing an offence, is in fact the unequal status of the rejecters of his State body, authorized to use coercive measures. This inequality to some extent offset by the adversarial process, laying on someone who is authorized to engage a punitive liability, "burden of proof", i.e. duties or to prove the offences and commit it to the accused or to close the case and apologize. Related to the so-called "presumption of innocence": everyone charged with a penal offence has the right to be presumed innocent until his guilt is proved in accordance with the procedure established by law and a court sentence properly entered into force. The accused in the criminal process, but also involved another kind of a punitive liability shall not be obliged to prove his innocence. He has the right to challenge the fact the offence, its legal assessment to submit evidence, participate in a study of the circumstances of the case (including in questioning prosecution witnesses). State bodies and officials are prohibited from in any way compel an accused to testify. No one shall be obliged to testify against himself, his spouse and close relatives. Any evidence obtained in violation of the law shall be recognized as null and void. Unremovable doubts about a person's guilt shall be interpreted in favour of the accused. Rights of the person involved to justice, giving him the opportunity to
106 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» participate in a study of the circumstances of the case and defend their interests, called the right of protection. The right to protection is enshrined in law in the form of procedural rights involved accountable, providing him the opportunity to know what exactly is the accusation, challenge it, participate in the collection and study of the evidence, to counsel, to appeal against the application of preventive measures and other acts prior to the adoption of the decision, appeal against the decision and the procedure of its execution, etc. Implementation right to rehabilitation liability is also based on the principle of competition, but the distribution of the burden of proof otherwise: the victim is sufficient to prove the infliction of property or other damage, default, creation of illegal status. Can be held liable to challenge the fact of the offense, to prove the legitimacy of their actions caused harm to justify their views on the amount of damage or the order of its compensation [5].The principles of liability applies inevitability. As noted, the establishment of prohibitions and penalties for violating them makes sense only on the condition that the person who committed the offense, prosecuted and subjected to coercive measures defined sanctions violated legal norms. The inevitability of responsibility depends most of all on the established law enforcement, from preparedness, competence and integrity of employees, empowered to prosecute and impose sanctions. The offense, which is not reacted to the police, causing serious damage to the rule of law: the impunity of offenders not only encourages them to commit new, often more serious offenses, but also a bad example to others, especially morally unsustainable. Therefore, one of the most serious problems is the mandatory registration and timely information on violations, criminal cases on the facts of each crime. It is enough to know that in the pursuit of prosperous performance, some employees of bodies of inquiry and investigation often avoid registering information on crimes, especially those investigations and the disclosure of which is connected with great difficulties. Considerable damage to the rule of law and is able to cause inactivity officials condone the commission of administrative and disciplinary offenses, as well as allowing the creation and preservation of unlawful state (publication of illegal acts, the conclusion and execution of illegal transactions, unauthorized construction, etc.).Timeliness of responsibility means that you can bring the offender to justice within the limitation period, period of time, not too distant from the facts of the offense. For administrative or disciplinary offenses such term is defined in a few months; criminal offenses statute of limitations is much greater from two to ten or fifteen years, depending on the severity of the crime and the circumstances of the case. Prescription treatment is also limited to the execution of an enforceable judgment (from two to fifteen years), or the decision on imposing an administrative penalty (three months). In the exercise of responsibility are taken into account such principles of law and morality, as the appropriateness and humanism. That and other means
107 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» that the person who committed the offense and convicted, can be completely or partially exempt from the application and implementation of the sanctions on the grounds that the offender voluntarily reimburse the damage or eliminate the harm, showed sincere repentance, deeds proved his correction in whereby the appointment of his punishment or penalty or further serving the designated measures inappropriate. Based on humanitarian accountability relationship may be terminated in the event of serious illness of the offender, unhappiness in his family, and for similar reasons. humanism principle is taken into account, and in the implementation of right to rehabilitation responsibility, but the difficulty is that if the state and its organs shall be entitled to forgiveness (pardon) the offender, softening his penalty, punitive liability or even get rid of it on the grounds specified in the law, then where are violated the rights of private or legal persons, and talking about their recovery - the right to waive implementation of the responsibility belongs only to those whose rights are restored by this responsibility. But here, at the request of the person liable party, for good cause may by court order or other law enforcement agencies change the order of execution, postponement and installment payments, reduction in the size of payments. Reference: 1. The electronic library of legal and business literature //http://kazbook.narod.ru/knigi.htm. 2. Marchenko M.N. Problems of the general theory of law. - M., 2015. - 648 p. 3. Nurlan Dulatbekov NO Basics of State and Law of modern Kazakhstan: study, the benefit / N. O. Nurlan Dulatbekov, S.K. Amandykova, A.V. 4. Cherniavsky A.G., Kuznetsov S.M. Legal liability: educational posobiehttp: //www.knigafund.ru/books/122654 5. The functions of legal responsibility http://humanitar.ru/page/ch6_3
ORALBEKOV A. Master of 2 course of law faculty al-Farabi Kazakh National University
Scientific adviser - Doctor of Law, professor D.M. Baymakhanova
EFFICACY OF THE PRINCIPLE OF UNITY AND INTERACTION OF RIGHTS AND RESPONSIBILITIES IN THE CONSTITUTIONAL LAW OF THE REPUBLIC OF KAZAKHSTAN
The problem of the concept of legal norms efficiency is traditional matter of argument in legal science. Law effectiveness declares against the target of its action to its result, this is
108 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» effectiveness of combination of legal incentives and restrictions. Effectiveness of legal influence is mainly related to realization of social values. One of the principal conditions for efficiency is the value of applicable legal means. Conditions for this effectiveness are the circumstances that contribute to the greater implementation of the value of law, as well as contributing factors in achieving and application of a certain social value. In particular, conditions of effectiveness of legal incentives and restrictions combination include the following: their correspondence to the interests and motives of behavior, perfection of legislation and law enforcement, system unity and complexity of the use of certain legal means, and others. [1, p.214]. In order to have the measure of law effectiveness, it is also necessary to know its structure, that is, you need to determine which components determine the effectiveness of a specific regulation [2, p.214]. After analyzing the legal literature on the matter, we have come to the conclusion that law effectiveness depends on three major factors (consists of three elements): 1. Quality of a normative act (law); 2. Effectiveness of enforcement and administration of law; 3. Level of legal awareness and legal culture. These factors, in turn, also consist of elements that determine their effectiveness and, correspondingly, law effectiveness. Thus, it should be noted that when improving effectiveness of legal regulation, improvement of legislation, its systematization, presentation of legal norms in understandable language, widespread application of legislative technique rules are of considerable importance. A legal norm is difficult to follow, if its elements are placed in a large number of regulatory enactments, when a part of its publications are not available for everybody, and the subsequent changes are not always generally known. Political and moral maxims are appropriate not in the text of regulatory enactments but, if it is difficult to do without them, in preambles; legislator must work for exact expression of his thoughts and intentions in legal language without any circumlocutions and ambiguity; if the law is not a directly applicable law, but contains the pledge to accept provisional regulations on the procedure for implementing one or another legal provisions - the promised acts should be promptly prepared and adopted, so that the legislation does not contain a declarative, unrealizable regulations. Serious obstacles in the course of the right realization create contradictions in the texts of regulations that give reason to logically construct different in content legal norms relating to the same case, relation. Especially dangerous for the practice of legal regulation are contradictions between the content of laws and by-laws, if the latter is preferred by government authorities and officials applying legal norms (instruction advantage over the law). The problems of studying the effectiveness of the rules of constitutional law, which certainly affect the efficacy of the principle of unity and interaction of rights and responsibilities in constitutional law, include the following: research
109 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» procedure and methodology in this area is not developed sufficiently, the lack of clearly defined criteria and parameters of research on the effectiveness of constitutional and legal institutions and sets of constitutional provisions. All of these factors indicate the need for research on the effectiveness of constitutional and legal norms. As part of this study, one must consider questions related to definition of efficiency of interaction of rights and responsibilities of constitutional law entities. Social changes in the state and society often lead to occurrence of difficulties in some areas of public relations when implementing the rules of constitutional law. Of course, these factors determine the level of efficiency of constitutional provisions, including the impact on the mechanisms for correlation of constitutional rights and responsibilities in the implementation of these provisions. In general, the effectiveness of constitutional and legal regulations has its own specifics. This specificity is manifested primarily in the fact that constitutional provisions are rather generalized scales (measures) system to the highest degree of possible or proper behavior of constitutional law entities. Studying effectiveness of individual institutions and provisions of constitutional law is of great importance It helps to understand if those specific social goals set during publication of the respective provisions have been achieved and to what extent; how personal, social or public interest expressed in the constitutional provisions is satisfied within specific relations; how closely the rights and obligations of legal entities are correlated; to what extent legal principles and provisions are reflected in the behavior of citizens, and in the state authorities affairs; to what extent their overall liability is applied in adherence to the right. In this regard, it is more appropriate to do research of efficacy of the principle of unity and interaction of rights and responsibilities in constitutional law, depending on addressee. Thus, in personal legal status, the borders of selection of available options are determined by degree of implementation of their duties or degree of implementation of duties by other law entities. It is influenced by two groups of factors: Firstly, it is legal factors. For example, implementation of personal constitutional right to receive free guaranteed capacity of medical care as set out in para. 2, Art. 29 of the Constitution of the Republic of Kazakhstan, considerably depends on how much state and local authorities will be able to create conditions for realization of this right, as well as on the level of legal awareness of a person himself/herself, which, in turn, depends on personal realization of his/her constitutional rights to health care (para. 1 of Art. 29 of the Constitution of the Republic of Kazakhstan). Thus, degree of realization of constitutional rights and responsibilities of legal entities considerably depends on realization of other constitutional rights and responsibilities on the part of legal entity himself/herself
110 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» and on the part of other legal entities. Secondly, these factors are lying outside the law. For example, implementation of the same constitutional right to health care depends on level of development of state economy, availability and reliability of existing social programs to improve health care systems, etc. As for the rights and responsibilities of such entities of constitutional right as the Republic of Kazakhstan, state and local authorities, efficacy of the principle of unity and interaction of rights and responsibilities in implementing the powers of the listed legal entities is as follows. As far as the powers of such entities of constitutional right are correlators of the rights and responsibilities of other legal entities, and as a rule, are of common rights-and-responsibilities nature, efficacy of the principle of unity and interaction of rights and responsibilities depends on the extent of responsibility of these entities for implementation of their powers. With reference to the foregoing, we believe that one of the most effective ways to ensure the principle of unity and interaction of rights and responsibilities in the constitutional law is the work of the Constitutional Council of the Republic of Kazakhstan. A study of the effectiveness of the principle of unity and interaction of rights and responsibilities in constitutional law determines the need for research of existing approaches to understand efficiency of legal norms in general. There are different, sometimes just the opposite points of view in understanding the efficiency of legal norms, efficiency criteria, methods of their research among scientists. There are widespread concepts featuring different variations of interpretation of the concept of efficiency as effectiveness of legal norms in relation to the intended objectives in legal literature. One of the concepts in this group is functionally-objective. Its followers are: V.I. Nikitinsky, A.B. Vengerov, I.Y. Ikonitskaya, and others. Efficiency of legal norms shall mean the relationship between the actual result achieved and the objective for which the relevant legal regulations have been adopted. At that they proceed from the fact that the effect of law as a whole is both effective, useful, cost-effective, and believe that, by examining the final results of the actions and comparing them with the objectives of existing legal regulations, it is possible to determine the total efficacy of legal norms made of perfection of these norms and practices of law [3, p.129]. And the reason for the lack of efficiency of a specific legal norm is always to be found in violation of such requirements. However, this study does not give any knowledge in the context of actual efficiency of legal norms. To identify the exact dependence, for example, between scientific validity of one or another norm and its efficiency, it is necessary, first of all, to determine the efficacy itself [4, p.12-13]. When analyzing the existing concepts of efficiency of legal norms in legal
111 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» literature, one apparently cannot categorically defend one efficacy notion, or deny the other one. Each definition and each efficacy research technique has the right of existence. It all depends on specifics of target and selected aspect, objectives of researcher, what approach, analytical or synthesized one, is more suitable for case studies. Researching efficacy of the principle of unity and interaction of rights and responsibilities in the constitutional law also covers analysis of its quality features. Firstly, one of the qualitative features of the principle of unity and interaction of rights and responsibilities in constitutional law is that this principle is of fundamental provision nature. As fundamental provision, this principle of law is important for many specific situations. Secondly, the quality of implementing the principle of unity and interaction of rights and responsibilities in constitutional law depends on legal education of citizens, on degree of social and legal orientation of the Republic of Kazakhstan, state and local authorities, their officials as participants of constitutional aspects. Thirdly, efficacy of the principle of unity and interaction of rights and responsibilities in constitutional law also depends on the perfection of constitutional and legal norms, on communication of this principle to the public, on providing conditions for their implementation, on level of legal awareness of all legal entities, on condition of law order and legitimacy. This, in turn, enhances the role of mechanism for ensuring realization of this principle, which includes the entire set of organizational, material and ideological costs, and measures to ensure implementation of the principle of unity and interaction of rights and responsibilities within the constitutional and legal status of legal entities, and constitutional legal relations. Researching efficacy of the principle of unity and interaction of rights and responsibilities in the constitutional law requires exact distinction of the factors affecting the quality of its actions, and mechanism for ensuring its realization. In this regard, it is important to define efficacy of the principle of unity and interaction of rights and responsibilities in constitutional law, and creation of methods for its research, which requires differentiation of conceptual construct, namely, a separate examination of the notion "effect" and "efficiency" that characterize ability of this principle to have targeted impact on social relations regulated by constitutional law. If effect of the principle of unity and interaction of rights and responsibilities in constitutional law is the action result of this principle, that is, of common correlation patterns and interaction of rights and responsibilities, then efficiency is a concept that characterizes the feature, ability of this principle to bring (cause) some effect. Efficiency and effect of the principle of unity and interaction of rights and
112 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» responsibilities in constitutional law is also manifested in area of its immediate regulatory action. Until recently there was an opinion in legal science telling that constitutional norms and principles of net effect on social relations either not show, or does not prescribe specific behaviors indicating participants of constitutional aspects, their constitutional rights and responsibilities. In opposition to this, there are a number of scientists, who believe that "in legal terms, application procedure of constitutional norms are often not similar to application procedure of the current legislation" [5, p.7]. The principle of unity and interaction of rights and responsibilities in constitutional law found its direct application in the work of the Constitutional Council of the Republic of Kazakhstan. In addition, this legal principle, expressing common patterns of unity and interaction of rights and obligations, from our point of view has a direct regulatory impact on social ties and relationships. Researching efficacy of the principle of unity and interaction of rights and responsibilities in the constitutional law also covers analysis the content of indicators and conditions of its effectiveness. Therefore, as indicators of effectiveness of the principle of unity and interaction of rights and responsibilities in constitutional law will be such qualitative properties of this principle, which characterize its degree of perfection and ensure its ability to influence development of social ties and relations in the desired direction. Coefficient of performance of legal principle under investigation in constitutional law covers the following: - Compliance with common patterns of the principle of unity and interaction of rights and responsibilities in constitutional law of behaviors and common courses for development of state and society; - scientific validity, expressiveness in law and reality of implementation; - social feasibility of this principle. Compliance with common patterns of the principle of unity and interaction of rights and responsibilities in constitutional law, and with behaviors and common courses for development of state and society is manifested in accordance with objectives, subject and direction of their actions to objective tendencies of state and social development. Political, economic, ideological, social and other needs and interests of entities of constitutional right are refracted in the work of state and public bodies, in behavior of individual. Development of state and society is inconceivable without social binds of entities that must be ordered in a certain way. From our point of view, one of the legal means in constitutional law aimed at ordering and balancing of social binds is the principle of unity and interaction of rights and obligations. This principle expresses common patterns of unity and interaction of rights and obligations, which are functionally intended to ensure balance, and interaction of rights and responsibilities within constitutional legal relations.
113 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Scientific validity of the principle of unity and interaction of rights and responsibilities in constitutional law is predetermined by necessity of regulating a complex system of relationships arising on influence of constitutional and legal norms. The lack of exact system of interaction modes of rights and responsibilities of constitutional law entities will lead to hazard effects: violation of the rights of constitutional law entities, excessive concentration of rights of other entities, to other constitutional and legal infringements. Many provisions of the principle of unity and interaction of rights and responsibilities in constitutional law are expressed in regulatory resolutions of the Constitutional Council of the Republic of Kazakhstan. In addition, the reality of execution of the principle of unity and interaction of rights and responsibilities in constitutional law must provide a number of objective reconditions in the state and society. Provisions feasibility of investigating the principle of unity and interaction of rights and responsibilities in constitutional law is possible only to the extent in which they are provided with economic resources available in the community, set political foundations, socio-psychological and ideological factors. For example, implementation of constitutional right of everyone to vote and to be elected to the state and local authorities (para 2, Art. 33 of the Constitution of the Republic of Kazakhstan) depends on a number of preconditions: on performing "overall" liability of the state and other legal entities to create organizational, promotional and other elections terms and guarantees, on raising the cultural and educational level of population, on its well-being, political voice and consciousness of legal entities, etc. One of efficacy indicators of the principle of unity and interaction of rights and responsibilities in constitutional law is its social expediency. Any legal phenomenon should be useful and valuable to society, that is, it should help to solve any problems facing the state and society. In this regard, the principle of unity and interaction of rights and responsibilities in constitutional law aims to ensure interaction between the rights and responsibilities in legal status of constitutional law entities, to ensure correlation of rights and responsibilities of constitutional relations entities, which is an important condition for democratic development of individual, society and state. An integrated approach to researching efficacy of the principle of unity and interaction of rights and responsibilities in constitutional law also requires an appeal to analysis of the reasons for its lack of effectiveness, clarification of which will not only identify the provisions that need to be improved, but also open up the possibility of predicting the efficacy of the principle of unity and interaction of rights and responsibilities in constitutional law. In this regard, the content of efficacy conditions of the principle of unity and interaction of rights and responsibilities in constitutional law has particular importance. From our point of view, efficacy of the principle of unity and interaction of rights and responsibilities in the constitutional law may refer the following:
114 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» the presence of theoretically developed system of cooperation types between rights and responsibilities; compliance with norms and principles of law by legal entities; strengthening of legality and law order in society and state; sufficient level of professional development of officials, and high level of legal culture and legal education of person. For proper understanding the meaning of provisions of the Constitution of the Republic of Kazakhstan, it is necessary to clearly define interaction of rights and responsibilities embodied in the complex of constitutional and legal norms. A literal understanding of any provisions of the Constitution of the Republic of Kazakhstan and other sources of constitutional law, without regard to other related constitutional provisions, leads, ultimately, to a violation or diminution of constitutional rights of some legal entities, and non-fulfillment of constitutional responsibilities of other legal entities. Scientific and practical importance of the principle of unity and interaction of rights and responsibilities lies in the fact that it contributes to close interaction of powers and responsibility of state authorities, determines the nature of powers of the specified constitutional law entities, contributes to realization of rights in conjunction with responsibilities. It also creates organizing principle in state authorities affairs, in life of society, ensuring their stability, and establishes and protects conditions for normal life, and development of social and political system. At the same time, no matter how strong the effectiveness of direct regulatory effect of the principle of unity and interaction of rights and responsibilities in the constitutional right is for social ties and relationships, we cannot ignore the fact that they regulate the basic social relations and strengthen foundations of organization and work of state and society. Strengthening foundations of the constitutional order of the Republic of Kazakhstan, provisions of the Constitution of the Republic of Kazakhstan establish the basis and initial principles for sectoral law-making, indicate objectives and overall direction of regulation of social relations, and thereby provide the unity and stability of the entire legal system. Constitutional and legal norms in this case act as a kind of starting basis to the current legislation. The effect and efficacy of the latter will occur, depending on how well interaction between the rights and responsibilities of legal entities established in the norms reflects the essence and the social nature of regulated social relations. On the other hand, one or another constitutional norm that establishes the rights and responsibilities of entities of constitutional right, specified in the norms of current legislation, adopted on the basis of constitutional norm and developing a model of constitutional relationship, constitutes a single legal institution. If during specification of constitutional norms in sectoral legislation the relationship of rights and responsibilities is violated, then basically constitutional model of legal relationship is violated.
115 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
At the present stage of development of society and state, the role of educational, informational and ideological modalities of constitutional and other norms and provisions is increasing on behavior of person and work of state, state and local authorities, and their officials. In this regard, the effectiveness of the principle of unity and interaction of rights and responsibilities in constitutional law must be assessed not only in terms of the positive changes that have occurred in objective social relations and in relations that are affected by this principle, but also in terms of the impact of investigating constitutional principle on awareness of its addressees. In addition, the principle of unity and interaction of rights and responsibilities in constitutional law is quite effective in implementing preventive and protective tasks. The system of interaction modes and correlation of rights and responsibilities of legal entities, expressed in constitutional law by the principle of unity and interaction of rights and responsibilities, contribute to the fact that all entities of constitutional right shall realize constitutional rights in their exact compliance, shall not violate or ignore the rights and responsibilities of other legal entities. Thus, the Constitution of the Republic of Kazakhstan, other sources of constitutional right, legal principles provide legality and law order in the state and society. Constitutional and legal norms, legal principles, as well as theoretical studies of science of constitutional law can and should have a positive impact effectively on development of the totality of social relations. Reference: 1. B.M. Emeliyanoiv, S.A. Pravkin. Theory of State and Law. Textbook. - M.: MIEMP, 2007. - P.2. - 556 p. 2. I.S. Kurganov, A.I. Kravchenko. Sociology for Lawyers: Textbook. - M.: Law, 1999. - 268 p. 3. I.Y. Ikonitskaya. Efficiency of Legal Norms. - M., 1980. - 180 p. 4. I.A. Zenin. Efficiency of Legal Provisions in the Field of Scientific and Technical Progress // The Soviet State and Law. - 1981. - No.2. - P.44-52. 5. V.A. Fedosova. Efficiency of the Norms of Soviet State Law. - Voronezh: Voronezh State University Publishing House, 1984. - 156 p.
116 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
STAMKULOV S. Master of 2 course of law faculty al-Farabi Kazakh National University
Research supervisor: Sartaev S.S. doctor of jurisprudence, professor Department of the theory and history of state and law, constitutional and administrative law
SOCIAL AND CULTURAL FOUNDATIONS OF THE EDUCATIONAL FUNCTION OF LAW
Throughout recorded history, the moral conscience of society, moral attitudes and moral reflection strictly are closely linked with reflections on the person of the limits of his freedom in the world, of his rights, duties and responsibilities in front of their own destiny and others. Today understanding the law, its role is the urgent problem of society, jurisprudence and public authorities. Scientists continue to lavish attention to the problems of modern jurisprudence. In recent years this is evidenced by the studies where the focus of attention is the socio-cultural aspects of the law. The increased attention to the law as a social and cultural phenomenon is due to a number of circumstances. The right has been regarded as a source, a tool of social transformation, as the most effective, unique in its kind regulator of society. Whenever a society shaking cataclysms, crises, public sentiment appealed to the search for legal values that can be the basis of the legal mentality. After all, no conversion to improve the environmental reality are impossible where the value adjustments were not part of human consciousness. In this regard, it is important to study not only the special regulatory and legal characteristics of the law, but also the humanitarian content, purpose and means of legal mediation of social relations. In this role, and it serves an educational function of law[1]. The study of the socio-cultural foundations of the educational function of law has shown that continuing essentially of determining the basic properties are reduced to the following criteria. Firstly, the deployment of the educational function of the right to the special role belongs to the state, public organizations and government bodies, which in their interaction designed to ensure broad involvement of people in the process of raising the level of their legal awareness, as well as in determining the assessment of existing legal norms for compliance with the principle of necessary social justice. Second, the educational function of the right takes place on the basis of a single process of functioning of the legal ideology and legal psychology and legal education to raise the individual consciousness to the consciousness of citizens of the general legal principles and requirements to meet the objective requirements of historical development, the collective interests of the state and society [2].
117 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Current understanding of the educational function of the law does not deny its positive potential, created by scientists - their predecessors [3]. However, in the domestic literature in understanding the educational function of the law in the past and this is the case not only unity, but also significant differences. First of all, fundamentally changed the target installation right educational function. The currently existing scientific doctrines of the concept of the educational function of law is defined as a function that is characteristic of a clear ideological and theoretical aspiration in evaluating the future development of society. Sense of justice appears as one of the most important ideological factors that affect the process of rooting ideas about educational rights function, as primary function, since it is known that it contributes to the level of development of a society's culture, its sense of justice. Legal consciousness can’t exist in isolation from other forms of social consciousness, which actively influence the formation of the legal ideas and beliefs. However, it is characterized by a number of significant features: 1) in the sense of justice reflected only the phenomena of reality, which are directly linked to the right. The objects of justice can be regulations and the process of their creation, implementation of legal provisions in legal, legal practice, law enforcement activities, etc.; 2) Awareness of legal phenomena society is made, as a rule, by means of legal concepts and categories (eg, "legal responsibility"); 3) Legal awareness is formed by many generations of people and is characterized by continuity. Any existing law carries a basic understanding of the law, which have emerged in the community. In a concentrated form of legal consciousness of society is reflected in the legal consciousness of legislators[4]. Legal awareness, it is the spiritual atmosphere in which the realization of the right, and the higher in the legal awareness of the degree of recognition of a established legal norms, the more effective this rule is implemented, because in the legal awareness is always a process of reconciliation of values, which is present in the legal awareness, with the value of, which is incorporated in the legal norm. Match or mismatch of these values and ultimately determines the effectiveness of regulation. Therefore, each state seeks to influence public legal awareness, form a system of values in it, consistent with the aims and objectives of the state and society, and expressed mainly in the existing law. Legal values as a whole can be reduced to three main groups of values - all absolutely ideal values and actual values and the existence of cash values of duty: the ideas, the values (ideals), values, goals (essence) and values-means (phenomena). At the same time the highest value of the right - in this jointly the vast majority of legal scholars from the time of Roman law - law (Latin juris- prudential.) - Law (from the Latin word ius, or jus, - right - justice as an enduring ahistorical socio-cultural reality) - it is justice in all its three versions: in the form of equalizing, distributing and retributive justice. Another thing is
118 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» how those or other scientists (lawyers, economists, philosophers, sociologists, political scientists) interpret the concept of fairness - some ideal of absolute foundations of the hierarchy of values essential legal meanings, and the relative values are the existence and obligation values such as human rights and social freedoms of man. and the citizen, the principles of equality, rule of law, property, honor and dignity of the individual, etc. as for the understanding of justice as moral and philosophical ideas here, as in the case with compassion - a sense of charity, it is primarily a question of justice - sense of justice, individual and personal values of moral and psychological nature [5]. Valuable system complies with the civil society, which includes civil rights and freedoms of a democratic orientation: freedom of speech, assembly, distribution, information, safety and security of citizens, the right to a free existence and operation of independent associations, participation in government, etc. Such a value system based on individualistic rather than paternalistic value orientations. The concept of value is essential for the function of educational rights, as among the values that the right wants to ensure that distinction is made between major and minor; Law prefers the common good to private interests; the common good, it restricts individual freedom and private property; it requires the individual to the life he sacrificed for the genus. All this hierarchical order of the multiple values of the right makes sense only on the assumption of a single, absolute value, which should serve as a pricing scale for human values in general. Volitional behavior, consciously willed aside their psychological activities, personality, legal behavior [6]. All of the above concepts and form a strategy for the implementation of the social functions of law. However, the educational function of rights is inseparable from a common culture, which played a major role to the maintenance and development of media, including television, radio, newspaper articles, and is an integral part of the whole cultural life of society, takes care of the education and education of the mass consciousness of society. Educational work of justice raises the individual person to understand the most common legal principles and requirements that meet the interests of the entire society and the state. Education in the spirit of the law, the rule of law is not limited to legal education, the formation of a positive attitude to the law, and law and finds its completion in the legal activity of the person, its legal culture associated, in turn, with the mastery of the foundations of legal knowledge, respect for the laws, regulations in the conscious observance of the law, within the meaning of the social, legal liability, in the intolerance of the offenses in the fight with them. Knowledge of citizens of their rights, freedoms and responsibilities of the state and society is also a function of the objectives. Introduction of scientifically based, weighted legal concepts, attitudes in the minds of citizens, the fight
119 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» against crime are prerequisites to strengthen the rule of law, without which it is impossible to build a civil society and rule of law. Thus, the educational function is an important function of modern law. It is a means of reconciling the interests and life practices, destruction of violence in all its forms at all its levels (from interpersonal to international and supranational relations). Conciliation is becoming popular resource rights at the supranational level, since the right begins to be interpreted as universal, and at the same time an effective mechanism, a kind of code of understanding and dialogue between individuals, social groups and states. Reference: 1. S. V. Levina Legal means of educational function of the right//Legal initiative No. 10/2013 2. General theory of the state and right: Academician. Rate: In 2 t. / Under. Red of the prof. N. M. Marchenko. T. 2: Theory of the right of M., 1998. Page 395. 3. Theory of the state and right: A course of lectures / Under. Edition of N. I. Matuzov and A. V. Malko. Saratov. 1995. With 470; 4. Sense of justice and legal education in the developed socialist society / Edition. Stake.: D. A. Kerimov, etc. M., 1983. Page 85. 5. Theory of the state and right: Studies. For higher education institutions / Under. Edition of the Prof. M. M. Rassolov. M, 2004; Belicheva S.A., Belyaeva L. I., Budanov A. V., etc. 6. Lebedev S. N. Theory of value and value of the right: history and methodology//History of state and law. 2011, N 21. Page 79. 7. Pavlov V. N. Legal education and tolerance in the conditions of modern Russian society. Avtoref. day.... уч. Art. edging. юрид. sciences. Vladimir. 2005.
SAGITZHANOVA A.K. Student 3-year student of the Faculty of Law Al-Farabi Kazakh National University, Almaty, Kazakhstan
Supervisor – Ospanovа D.A., candidate of Legal Sciences, Associate Professor
FAILURE TO FULFILL OBLIGATIONS ON THE CITIZENS OF MILITARY REGISTRATION
The Constitution of the Republic of Kazakhstan (Section II) contains fundamental principles, rights and duties of citizens, which include such an obligation as the bearing of the citizens of the Republic of Kazakhstan military service in the manner and forms established by legislation of the Republic, as the defense of the Republic of Kazakhstan is the sacred duty of every citizen.
120 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Conscription - a constitutional duty of the citizens of the Republic of Kazakhstan on protection of the Republic of Kazakhstan. The legislation of the Republic of Kazakhstan provides for the responsibility of citizens for violation of rules in the field of general conscription, military service and defense. The legal basis for military duty and military service in the Republic of Kazakhstan are: RK Constitution, the law "On Military Duty and Military Service", the RK "On the Status of Servicemen" law, the law "On Defense", other laws and other normative legal acts of the Republic of Kazakhstan in the field of defense, conscription, military service and status of servicemen, international treaties of Kazakhstan [1]. According to paragraph 11 of the Resolution of the Government of the Republic of Kazakhstan from June 27, 2012 №859 "On approval of Rules of conducting military accounting of recruits and conscripts," the citizens of the Republic of Kazakhstan, which in the year of registration is 17 years, each year from January to March, attributed to the enlistment offices. It held it in order to make citizens' military registration, determining their number, the degree of fitness for military service, the establishment of educational level, their specialty and level of physical fitness. All of these actions on the registry of citizens of the Republic of Kazakhstan to the enlistment offices are held at their permanent place of residence or temporary residence (for a period exceeding 3 months). In accordance with paragraph 14 of Government Decree "On approval of the Rules on the procedure for conducting military accounting of reservists and conscripts", warning citizens about their appearance on the postscript is made on the basis of the agenda, the presentation of which is carried out by local executive bodies and entities for the five business days before the scheduled appearance of life in the postscript. In these agendas set specific deadlines turnout of citizens to the recruiting areas for the passage registry. All citizens caused to undergo Registry are obliged to appear at the recruiting station in time and with the appropriate documents referred to in agenda. Laws established good reasons citizens absence to the recruiting stations in terms of specified in the summons. These include: 1. The disease (injury) related to disability. 2. Death or serious illness of a close relative. 3. Obstacle natural nature deprived the citizen to personally come. For all the reasons of absence of the citizen to the recruiting station should be submitted to the relevant documents confirming the absence respectful in time [2] Аrticle 647 of the Code of the Republic of Kazakhstan "On Administrative Offences", establishes liability for failure to perform duties of the citizens of military registration, which is composed of a citizen fails to appear or obliged to consist in the military registration, call the local body of military administration within the specified period without a good reason. For such an offense provided liable to a fine in the amount of five monthly calculation indicators. Аlso аrticle 648 of the Code "On Administrative
121 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Offences", provides for liability for evasion of medical examination or examinations in the direction of the commission for the formulation of citizens on military registration and enlistment commission. In this case the administrative responsibility in the form of fines on persons liable in the amount of five monthly calculation indices, and recruits - a warning or a fine in the amount of three monthly calculation indices [3]. Objective side can be any action (inaction) which violate the established requirements in the form of the late submission of the required information, failure to appear on call within the place and date of the military commissariat or other body conducting military registration, etc., if they do not entail criminal responsibility .The subject of the administrative responsibility - special: citizens who are bound or in military records. On the subjective side of the offense can be committed both intentionally and negligently (for example, due to forgetfulness).Cases on administrative violations are considered military commissars of Kazakhstan entities, districts and cities (without district division), administrative districts and administrative units equal to them, as well as military commissioners united military commissariat.Protocols on administrative violations constitute officials military commissioners. Reference: 1. D.N. Bachrach. Administrative law. Moscow, 1993. 2. Nozdrachyov A.F. Administrative law. Fundamental Course. Moscow, 1992. 3. J.M. Kozlov Soviet administrative law. Moscow, 1984.
SALAMATOV M. 4st year student of law faculty Al-Farabi Kazakh National University
Scientific adviser - candidate of juridical sciences, associate professor Kusaynov D.O.
ADMINISTRATIVE-LEGAL CONCEPT OF THE QUALITY OF WORK OF CIVIL SERVANTS
President of Kazakhstan Nursultan Nazarbayev - Leader of the Nation Address to the Nation in January from January 17, 2014 "Kazakhstan's way - 2050: Common goal, common interests, common future" note that "It is important to strengthen the work with them all the government bodies - from the government to the local akim... The most important task - to continue formation and implementation of the new anti-corruption strategy. Administrative reform should not become a cumbersome process of unnecessary paperwork and document. We need to give more autonomy to local governments, while
122 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» increasing their accountability for results by increasing their accountability to the people". The implementation of the main objectives of the administrative reform - increasing the efficiency of public administration, requires the implementation of large organizational measures, which is possible on the basis of improving the quality of civil servants in all state bodies of the country through the organization of an efficient administrative and legal regulation of this process. Note that for the successful implementation of this important task in our country has created major social and political conditions, namely stability and interethnic accord. Known in the post-leading constitutionalist scholar, Professor. Kim VA rightly points out that "in a state of stability of the state, free from activities related to countering disruptive factors fully becomes creative force, regulating public life with only one objective - global assisting progress. Such a vector in the actions of the state - a huge accelerator of social development". The practice of public service modernization shows that for the proper implementation of the administrative and legal regulation of the new object, in particular the quality of civil servants, it is necessary, first of all, define the basic concepts. The first researcher of the concept of "quality" in the world is the Greek philosopher Aristotle, who is already in the IV. BC. He said that quality called "property of things", hence the quality of different things can be similar and dissimilar. The Big Encyclopedic Dictionary says that quality - it is an objective and a general description of the objects, which is found in the totality of their properties. According S.I.Ozhegov quality - availability of essential features, properties, characteristics that distinguish one object or phenomenon from the other; quality - a particular property, the dignity of the suitability someone something. Later, in the world there are new interpretations of "quality" category from the standpoint of development and use of new products and services. Japanese scientist K. Ishikawa believes that quality has two aspects: the physical characteristics of the objective and subjective (as a thing is "good" for the consumer). . J. Juran considers only the subjective quality of the consumer side, believing that the quality can be determined only by the degree of satisfaction of the consumer of the goods or services of the property; it is that which corresponds to the requirements of consumers of goods and services. J.. Harrington called quality meet consumer expectations for the price that they can afford, when he has a need to. According to V. Ogvozdina, a set of objectively existing properties and characteristics of a product or service, the level of which is determined by the grade or quality of other assessments that characterize use-value products. In the face of strong competition, the development of market relations, many scientists are investing in the concept of "quality" of economic sense, ie, the
123 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» degree of satisfaction of customers' expectations and requests of the evaluation of the usefulness of selected properties of the product or service to meet their needs and interests. It should be noted that the concept of "need" in the dictionary S.I. Ozhegov defined as "the need, the need for something that requires satisfying." It is known that the carriers need for the beneficial properties of services, works and goods are not only individuals and groups of people, but the population of the territories and the nation as a whole. T.A. Salimova, N.S. Vatolkin believe that quality - it is defined to include a set of properties of an object, allowing it to meet the needs of different levels, and are in constant motion, change, transformation. I.I. Mazur defines quality as a measure of conformity of the goods, works, services, conditions and requirements: customer needs, standards, agreements, contracts, regulations and procedures. O.V. Aristov Noting the importance of quality problems in the world today writes that since 1905, when it became Taylor's system, all the products of labor (goods and services) began to divide into two groups: meet the quality requirements and defective. It becomes more obvious fact that the defect causes are usually worn organizational, systemic. Subsequently, in the world of integrated system of continuous improvement of the quality of goods and services has been developed, which consisted of four main consecutive stages: planning (definition of goals and objectives); training conditions (education and training, conducting other preparatory works); action to ensure the quality (design and implementation of control actions), which came to be regarded as elements of the overall teamwork. For example, in Japan, when the quality circles, each member of the circle in the performance of their work is constantly carried out all four actions. It is known that in practice there are different approaches to the assessment of the quality of work of civil servants: legal, economic, social, ethical, and others. Each of these approaches (legal, economic, social, ethical, and others) provides for the determination of the concept of "quality" of their understanding of their properties and usefulness evaluation criteria. From this we can conclude that in terms of democratization of state administration, the transition to state regulation of the quality of civil servants, the main criteria for evaluating the performance of public servants should serve the list and level of utility properties of the results of their work to the public from the perspective of human welfare. In general, in the sociology of "quality" is defined as a set of necessary and useful for the subject properties of a particular product or performance. In the scientific literature and practice there are two basic methodological approaches to the definition of "quality": - Economic approach, according to which the quality is defined as a set of necessary and useful properties of the goods (services, work), evaluated by the
124 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» buyer for a price in money terms. When determining the economic quality of the goods (services, works) the parties (buyer and seller) act as equal subjects of civil relations. - Administrative and legal approach, according to which the quality requirements of the public servant (of goods) are defined in legal form, unilaterally - state by establishing a list of properties to work in order to meet the interests of society or the individual segments of the population (patients, people with disabilities and etc.). In administrative-law approach, the concept of "quality of work of civil servants" is regarded as a social system, consisting of a set of necessary state and public property work, provision of which depends on the intellectual and physical abilities and actions of civil servants, their skills and other qualities, as well as different organizational the conditions required to ensure the quality of public servants. However, the question arises: what is the force must be shown, the constructive possibilities of administrative law. We believe that the constructive possibilities of administrative law are manifested in the following points: firstly, by means of administrative law we translate the quality of work required for the properties in a specific legal and administrative requirements. Secondly, these specific legal and administrative requirements for the quality of work by a special mechanism of administrative and legal regulation by the actions of state employees translate into specific useful properties of the work, ie, provide necessary for society and the state quality of public servants. The level of quality of the work of public servants provided in the administrative and legal regulation, namely, the degree of implementation of the civil servants assigned to them a set of legal and administrative requirements for working in the properties of the administrative and legal acts, as a standard, regulation, administrative procedures, position, etc.. It should be noted that the administrative and legal regulation of the quality of public servant side of this relationship does not act as equal subjects. Here, firstly as a subject of administrative and legal regulation of the state acts in the name of the Government, ministries and local executive authorities and, secondly as an object of regulation - public servants. Thus, at the administrative and legal approach the government unilaterally, imperatively, state-authoritative method, in line with the administrative and legal form determines each civil servant defined and specific list (set) the necessary administrative and legal requirements of socially useful properties of the quality of work of civil servants. Note the main thing that all of these by the State administrative and legal requirements for the properties of public servants must act simultaneously and as criteria for evaluating the performance of civil servants. Consequently, the number of administrative and legal requirements for the properties of civil
125 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» servants at the same time determines the number of criteria for assessing the quality of public servants. The process of administrative and legal regulation of the quality of work of civil servants consists of several stages of formation of the quality of work. Therefore, in this process it is important the state response to the results of work of civil servants. At the same time the state must establish for the best results of the work of civil servants incentive measures, and for the poor results - impute liability of civil servants for the improper performance of administrative and legal requirements for the quality of work (disciplinary, administrative, criminal). Currently, public administrative and legal requirements in many countries, are set in such administrative-legal act of the quality of work (goods and services), as standard. Therefore B.G. Litvak rights, who believes that the talk about a possible only if there are certain standards or minimum criteria to assess the extent to which production parameters or indicators of services, another object of evaluation or otherwise satisfy the requirements . By the quality of civil servants should be understood set of useful properties of the state and society of civil servants, as defined in the administrative and legal order in the form of legal and regulatory requirements, the implementation of which is ensured by a special mechanism of administrative and legal regulation. Thus, the quality of civil servants can be regarded as administrative and legal category, if: - A list of the necessary requirements to properties (quality) of civil servants approved by state authorities by the imperative in the administrative and legal act (standard, regulation, regulations, procedures, etc.); - The implementation of these regulatory requirements to quality of civil servants is ensured by a special mechanism of administrative and legal regulation; - For the improper performance of administrative and legal requirements to the quality of legislation provides an appropriate legal liability of public servants. According to V.A. Yusupova, law-making provides a basis of legal exposure, "Start the beginning" of the mechanism of legal regulation. In the course of its transformation will occur social formations, including the will of the state authorities, in specific legal purpose. V.P. Ivanov noted that the criterion - it is usually on the basis of which the comparison is made possible solutions, classification of objects, processes and phenomena. With the performance criteria evaluation can determine the level of quality (low, medium, high). Therefore, the criterion as a measure of how demand always helps to assess the progressive development of the object-specific properties. However, in the administrative and legal regulation of the system of
126 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» criterion should always be the objective set out in the regulatory legal acts and meet the interests of the state and society. N.N. Trusevich rightly pointed out that quality is determined by using the criterion, but the degree of manifestation of the quality measured by indicators. The evaluation criteria should be the same and unchanged for an objective evaluation of multiple objects. However, our analysis of the workmanship of many rural akims showed an unexpected result. First, it turns out, now there is no clear criteria for the quality of work in many government agencies, and there are some suggestions work well, not to be ashamed. A few existing criteria of quality of work of civil servants is considered as optional category, and just as some guidance in their work. In our opinion, the reasons for this attitude, in the first place, lie in the fact that in our country is still underestimated the role of administrative and legal means to regulate the work of public servants. Secondly, many heads of state agencies do not know how to use the administrative and legal means to regulate the performance of public servants. The causes of the low level of civil servants, should be sought in the fact that many applied in the work of public servants criteria are complex, often do not understand and are not remembered civil servants. For example, such criteria as the economy administrative state body decisions. There are times when the quality criteria of civil servants are determined by the head of the public body "in the eye" and haphazardly, ie at a meeting in an oral and a single order to ensure the implementation of the emergency and urgent task before visiting the higher authorities in the region. Often, for the implementation of certain performance measures for civil servants do not have the working conditions necessary knowledge or the appropriate moral and material incentive to implement them. On the other hand, for the implementation of each quality criteria requirements of the work necessary to create a public servant organizational and material conditions and incentives. Unfortunately, in practice, this time often not properly taken into account. In addition, when the high-quality results in the work of the best public servants should be encouraged, and for the poor quality of work - state employees should bear the corresponding legal responsibility. However, the question is a fair incentive winners to this day does not find its proper solution in the public service. Which way out of this situation? State should be established legal, organizational, material and technical conditions for improving the quality of public servants. Moreover, all issues should be resolved in the administrative and legal order, imperatively, openly and fairly. We consider it appropriate, first, to the criteria for assessing the quality of work of civil servants, rather, administrative and legal requirements for the
127 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» quality of civil servants have contributed accurate implementation of requirements of the legislation, the President's instructions, strategic plans, public programs. Secondly, the criteria reflect the high quality requirements for the citizens of civil servants, a specific public authority. Thirdly, the criteria for evaluating the performance of civil servants have been published in print and online to all citizens, the media, the general public had the opportunity to actively participate in the implementation of external monitoring and public assessment of the quality of civil servants. The causes of the low level of civil servants, should be sought in the fact that many applied in the work of public servants criteria are complex, often do not understand and are not remembered civil servants. For example, such criteria as the economy administrative state body decisions. There are times when the quality criteria of civil servants are determined by the head of the public body "in the eye" and haphazardly, ie at a meeting in an oral and a single order to ensure the implementation of the emergency and urgent task before visiting the higher authorities in the region. Often, for the implementation of certain performance measures for civil servants do not have the working conditions necessary knowledge or the appropriate moral and material incentive to implement them. On the other hand, for the implementation of each quality criteria requirements of the work necessary to create a public servant organizational and material conditions and incentives. Unfortunately, in practice, this time often not properly taken into account. In addition, when the high-quality results in the work of the best public servants should be encouraged, and for the poor quality of work - state employees should bear the corresponding legal responsibility. However, the question is a fair incentive winners to this day does not find its proper solution in the public service. Which way out of this situation? State should be established legal, organizational, material and technical conditions for improving the quality of public servants. Moreover, all issues should be resolved in the administrative and legal order, imperatively, openly and fairly. We consider it appropriate, first, to the criteria for assessing the quality of work of civil servants, rather, administrative and legal requirements for the quality of civil servants have contributed accurate implementation of requirements of the legislation, the President's instructions, strategic plans, public programs. Secondly, the criteria reflect the high quality requirements for the citizens of civil servants, a specific public authority. Thirdly, the criteria for evaluating the performance of civil servants have been published in print and online to all citizens, the media, the general public had the opportunity to actively participate in the implementation of external monitoring and public assessment of the quality of civil servants.
128 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Reference: 1. Message from the President of the Republic of Kazakhstan N. Nazarbayev to people of Kazakhstan. January 17, 2014 "Kazakhstan's way - 2050: Common goal, common interests, common future." - 01.18.2014. - Astana, Akorda, 2014. 2. Kim V.A. Period of creation: Analysis of the socio-political and constitutional and legal views of the First President of Kazakhstan. - Almaty RACP "Dәuіr" LLP, 2005 - 448 p. 3. Aristotle. Categories // Ethics. Policy. Rhetoric. Poetics. Сategory// Minsk: Literature, 1998. - 178 p. 4. Great Encyclopedic Dictionary / Ed. A.M. Prokhorov. - M., 1992. – 678 p. 5. K. Ishikawa Japanese quality management. - M .: Economics, 1998. - 199 p. 6. Deming, Juran and others. Quality management. - M .: STC "Track", 2000. - 168 p. 7. J. Harrington. Quality management in corporate America. - M .: Economics, 1990.- 185 p. 8. Ogvozdin V.Y. Analysis of the key terms of ISO 8402-86 // Standards and quality. - 1992. - №3. 9. Salimov T.A., NS Vatolkin History of quality management: training manual. - M .: KNORUS, 2005. - 256 p. 10. Mazur I.I., Shapiro VD Quality Management: A Training Manual: 4th ed. - M .: Omega-L, 2007. - 400 p. 11. Aristov O.V. Quality Management: A Textbook. - M .: INFRA-M, 2007. S.5-6. - 240 with. 12. Litvak B.G. 12 Expert in technology management: training manual. - 2nd ed.. and ext. - M .: Case, 2004. - 169 p. 13. Toktybekov T.A. Administrative and legal regulation of the quality of work of civil servants. - dissertation for the degree of Ph.D. - Almaty, 2010. – 25 p. 14. Yusupov V.A. The theory of administrative law. - M .: Yurid.lit, 1985. -. 160. 15. The State Service of the Russian Federation: the human resource management framework. Under the general editorship. V.P. Ivanova - M .: Publishing House of the "Izvestiya", 2003. - 410 p. 16. Trusevich N.N. Evaluation of administrative work. - M .: Economics, 1984. - 114 p.
129 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
SERGALIEVA A. M. Student of the 3rd course law faculty, Al-Farabi Kazakh National University
Scientific adviser - candidate of juridical sciences, associate professor Ospanova D. A.
A COMPULSORY TREATMENT AS A MEASURE OF ADMINISTRATIVE SUPPRESSION
Annotation: A given article is devoted to a compulsory treatment as a measure of administrative suppression. People often commit illegal actions being in drunkenness, under the influence of narcotic substances. Public disorder, inflection of physical and moral ingury to citizens, driving a car in a state of intoxication- these are small part of what can law-abiding citizens do in a drunken state. Constitution definitely perceives the abuse of alcohol and drug comprising drinks as a condition that weights a blame of a criminal, but considers that chronic alcoholism is a disease. It is considered that alcoholics and drug addicts- people able to do a crime under the influence of some substances. If a citizen, regularly uses substances that affect mind, denies to have a voluntary treatment, judiciary bodies are able to send him on compulsory medical treatment. Keywords: compulsory treatment, measure of administrative suppression, alcoholism, qualified medical assistance drug addiction, mental insanity.
A human, his right and freedom are proclaimed by the Constitution of republic of Kazakhstan as a supreme value of community, its accowledgement , abidance and protection-responsibility of government. Intent attention to the human`s rights is caused by the tendency of Kazakhstan to building a constitution state, by adopted international legal responsibilities in this sphere, by caring judicial reform in the country. By these actions are caused current transformations in the sphere of administrative law, directed to the improvement of system of the rights` guarantee and lawful interests of citizens. Exactly in this Connection the Constitution of Kazakhstan has fixed a thesis which says that protection of citizens` rights and system, and individual`s lawful interests – one of the principal and first- priority tasks of constructing democratic and civil society. Therefore, application of compulsory measures of medical character is not only designed to serve as complete realization of aims and tasks of judicature, but as an effective method of assuring rights, freedom and interests of citizens. Measures of administrative suppression- are measure taken for forced ceasing of delinquency, and also to compel a citizen to an ascertained behavior at emergence of circumstances which are dangerous for society and for him.
130 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Measures of restraint compulsory activity of executive power most painful and sharp for those to whom they are applied. In the administrative law literature pruavls narrow view about measures of restraint compulsory. It is considered that suppression, as independent administrative and legal act, is possible only in wrongful act. “Using measures of administrative suppression,- wrote M.Y.Yeropkin,- government bodies are their authorized representatives forcibly cease the breach of precept of law, force disturber behave properly.” However, setting measure of administrative suppression is not confined by fighting with administrative delinquents. They can be also applied for ceasing phenomenons of negative character. For example, extinguishing of fire in a multistory apartment, when employees of Government fire-prevention service force all tenants of an apartment to leave immediately their houses. Another example: psychiatrical inspection can be held coithout individual`s permission or without his legal representative`s permission, when, according to data, an examined person performs acts, which give grounds to suppose the presence of heavy mental disoroler. In many cases the measures of administrative suppression are used directly and immediately on the base of circumstances pointed out in a law, but in other separate cases they are used with the edition of writing decision. For example, at administrative eviction of citizen from a dwelling apartment administration of housing organ publishes a corresponding order. The same procedure is produced at a forcely made psychiatric examination: a doctor- psychiatrist makes decision about unvoluntarily examination independently, but in certain cases from approval of judge . [3, p.157] Compulsory measures of medical character in regard to persons, suffering from psychological disorders (by diseases) 1. On bases and in the order the set by legislation of Republic of Kazakhstan, compulsory measures of medical character are used in decision of court in regard to persons, suffering from psychological disorders (by diseases)and who accomplished dangerous acts publicly. 2. Compulsary measures of medical character come true in psychiatric organizations in the system of health protection as the followings : 1) ambulatory compulsory supervision and treatment of a psychiatrist; 2)compulsory treatments in psychiatric permanent establishment of general type; 3) compulsory treatments in psychiatric permanent establishment of the specialized type; 4) compulsory treatments in psychiatric permanent establishment of the specialized type with an intensive supervision. 3. The persons, placed in psychiatric permanent establishment for application of compulsory measures of medical character , are confessed to be as
131 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» disabled for all period of stay in psychiatric permanent establishment. 4. Money from physical and legal persons, including pension payments and state social manuals,is included on the reference count of cash on hand of public psychiatric institution of the specialized type with an intensive supervision (further is establishment) for the use psychologically ill patients under compulsory treatment in establishment. 5. The order of the use of money is determined by the authorized organ. [2, p.116-129] It should be noted that directing to a compulsory treatment in narcological establishments in the system of health protection does not draw previous conviction. Base of this direction to a compulsory treatment is a conclusion of health authorities in the specialized medical and preventive establishments. Initiative on bringing in of patient can be made by the relatives of patient, labour collectives, public organizations, organs of internal affairs, office of public prosecutor, organs of guardianship and patronage to a compulsory treatment. In case if a patient does not have a permanent address, registration of him on a compulsory treatment comes true by the organs of internal affairs at the place of being of sick in the moment of excitation solicitor. Decision about direction of patient on a compulsory treatment after the giving of materials on a patient is accepted by a district (municipal) court in the open judicial meeting, where a patient, and also his relatives, representatives of public associations, labour collectives take part. Act must be considered in ten days' term from the moment of entering of materials to court. The term of stay in the specialized medical and preventive establishments must not exceed two years, and in case of the repeated direction - three. Direction of patient in medical and preventive establishment does not confess repeated in case if no less than three years passed from the day of completion of preceding term of treatment. Reference: 1. Constitution of RК 2. Codex of RК "About the health of people and system of health protection" 3. Zhetpisbayev B.A. Administrative responsibility in Republic of Kazakhstan : Studies. manual / Under edit. S.S.Sartayeva 4. Agapov A.B. Administrative responsibility:Book.-М.: Statute, 2000.
132 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
SERIKBAIKYZY M. master of 2 course of Law faculty Al-Farabi Kazakh National University
Scientific adviser - Akhatov U. A., Candidate of Law Sciences, associate professor of theory and history of state and law, constitutional and administrative law Al-Farabi Kazakh National University
THE IDEA OF THE MONARCHY IN THE HISTORY OF POLITICAL AND LEGAL DOCTRINES
The idea of the monarchy is one of the ideas which did not lose the importance, for today's time sets mankind thinking. On its basis the general regularities lie. Because, monarchic management was born as the very first public administration. Therefore political and legal doctrines about improvement of this control system began with those times. The basic classical concepts of the idea of the monarchy began to be formed in points sight of representatives of political and legal doctrines of a classical antiquity. It is known that the idea of the monarchy set thinking many thinkers of the Greek world of the Ancient era. One of them is Platon. Platon is the famous Greek thinker the created most progressive model of the general public administration. The main work of Platon devoted to a social order and system of public administration is called "State". In this work Platon analyzes each form of public administration, tried to explain its essence. According to Platon, feature of the aristocracy and the regal power of public administration in the following: "In my opinion, just was one type of the political system is considered, however, it is possible to call it in two meanings if one of governors rules alone: then we call it the regal power if governors a little then it is called the aristocracy" [1, 331.]. According to Platon's words, in our opinion, this regal power is a monarchy prototype. His follower Aristotle also in the works told about systematic studying of the regal power, its some forms. For example, Aristotle in the work "Policy" gave the following characteristic to types of the regal power: "In Each certain case several types of the regal power are shown differently. For example, in the political system of Lacedaemon the regal power is generally based on the law, however, it in full sense not the sovereign power: the tsar the Supreme leader only when goes abroad the states; also the tsar is engaged in religious traditions. Thus it is one unlimited strategy; however, to death the tsar has a right to sentence only during war. Such order was in the ancient time during military campaigns; it is certified by Homer: at public meetings Agamen fights back abuse in the address: "If I see somebody during war out of war, it will not become food for dogs and birds anywhere: death in my hand [2, 394.]. Continuing this thought, it develops features of the regal power as follows: "One type of the regal power – vital strategy. It is transmitted from the father to the son in the
133 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» hereditary way or through vote. Also, there is a type of the regal power which is found in the monarchy of barbarous tribes; it is based on tyranny, and also is lawful and hereditary. According to natural qualities barbarians in comparison with Greeks and Asian barbarians of Europe are more inclined to patience of slavery, therefore they without showing not one form of a protest, submit to the despotic power. As a result of these reasons the regal power of barbarians is inclined to tyranny, but it is strong based on the law or heredity" [3, 394.], continuing: "For this reason guard them not as tyrants, and as tsars: tsars are protected by the armed citizens, and tyrants – hired citizens because, tsars on a lawful basis operate subordinates voluntarily, and tyrants operate involuntary people. That is, one find the citizens who are on defense, others are protected from citizens. These are two views of the monarchy. Others it is a look an esimnetiya which ancient Greeks had. It is a look the chosen type of tyranny; the difference from illegally founded monarchy of barbarians, is a difference from not a nasledovatelnost. There are one lifelong governors, and the second are elected for a certain time, for performance of a certain task; for example, citizens having made methylenes esimnt for protection against the country of poets Antimenid and Alkey elected Pittak" [4, 394.]. As we see, Aristotle from the theoretical party gave to the regal power deep meaning. It revealed several types of the regal power. Also it describes one of types of the regal power as follows: "The fourth type of personal regal board – in a heroic era changing in the hereditary way at will of the people – monarchy. Ancestors of founders of such heroic tsars were patrons of national weight, these are people the knowing one craft, the military leader in the war, the initial organizer of the state, a dilator of its territory, they became governors at will of citizens, to their followers the power is descended. In their power to be the governor at war, and also because of the fact that at that time there was no special service of priests they were responsible for a sacrifice, consideration of lawsuits, at this time some tsars swore an oath in court (during an oath the governor lifted the staff up [5, 395.]), and some without swearing an oath processed case: "Thus, four types of the regal power: first, submitted at will of citizens of a heroic era, however, powers are limited: the tsar the military governor operating in judicial and religious activity; secondly, lawfully based hereditary despotism; thirdly, the called esimnetiya – selective tyranny and fourthly, the regal power which was vital nasledsvenny strategy. This four look differs with the features called above" [6, 395.]. As we see, in ancient time Aristotle tried to analyze forms of the regal power unknown today. In our opinion, among the ideas of the regal power of Aristotle there is the fifth type of the regal power close to the monarchy. According to Aristotle, the fifth look regal the authorities in the following: "In the fifth type of the regal power one person the unlimited owner of everything, also manages a certain tribe and common causes of the state. The regal power is similar to the economic power: also as well as
134 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» economic power of the host, regal power it as government of the tsar of one or several states. If to speak the real strict accuracy, regal the power has only two look worthy to consideration: last view and regal power of Lacedaemon; other three look generally trans-species a look between told by two: on the one hand, their power more regal power of Lacedaemon there is less regal power, from the second party. Thus, actually it should be taken into account the following two questions: the first – whether lifelong one strategy is favorable to the states or not, ол has to be from the operedelenny tribe or to be chosen; the second – is favorable or not that one person was an unlimited owner of all" [7, 396.]. As we see, Aristotle tried to distinguish deeply a scientific basis of the regal power and his feature. The last fifth type of the regal power is completely characterized by all features of the monarchic power. Therefore a concept of the monarchy in Aristotle's ideas it is placed in the fifth type of the government. All medieval and ancient thinkers in the works argued on the monarchic power. The ancient Roman thinker Cicero left much valuable thoughts of the regal power. According to Cicero the most favorable form state management is the regal power. Cicero combines justice of the regal power with personal qualities of the subject of the governor. According to Cicero the state governor has to have the following personal qualities: "But at Cicero the statesman appears under the unusual name - rector rei publicae or rector civitatis. Originality of the name of the highest due figure generated in literature much it interpretations: and "the monarchic president" and "constitutional monarch", and "the aristocratic principle" [8, with. 217]. The famous medieval thinker F.Akvinsky connects monarchic board good luck. His main idea about the monarchy: "Management of the state is similar to how God rules the world, and soul directs a body. The main uniting force without which the statehood would break up is will of the governor. The beginning consolidating all efforts of the state has to be uniform. Therefore the best form of government - the monarchy. It the highest type of the state because the power of the monarch is derivative of the divine power" [9, page 93.]. In F.Akvinsky's thoughts the idea of the monarchy the main also shows fair management close in god. Therefore the thinker generally expresses to the idea of the monarchy respect. The most fair control system is the monarchy. As it was told above, many thinkers ostavshy known samples of thoughts of mankind give a huge role of the monarchy. One of them Italian D. Alighieri. In his opinion, the monarchy is the main example and a symbol of public administration. He tells the following in the works: "Between two independent governors there can be conflicts and it is clear that they can be guilty of it or their subordinates. That is, the court has to resolve a dispute. Because one does not recognize the second, one does not submit to the second (because equal do not submit each other), there has to be someone the third at which there are powers and who can be by the right to be higher than them. And he can be a
135 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» monarch or not. If is, then we cannot find, that we want to prove; if is not present, then on powers can there will be someone the third, and someone is required the third again. Thus it can be infinite, it cannot be; that is, the first has to go to the Supreme refereeing, its powers stop all conflicts directly or indirectly and he is a monarch or the emperor. The world needs the monarch" [10, 317.]. Personal qualities of the monarch are given special value, it is proved by the following thought: "Whose power and determination will be higher, that also will be the highest force of justice in the world; such person only monarch; that is, only justice of the monarch has the highest force" [11, 317.]. According to opinion of the thinker public administration makes internal essence of mankind. "Descendants of mankind according to the general features the monarch and by the general rules to provide tranquility [12, 318 has to head.], - it the conclusion proves us it. The idea of the monarchy in the history of political and legal doctrines of antiquity and the Middle Ages rose to the progressive level of public administration. Here therefore the aforesaid thinkers highly appreciated the monarchy. References: 1. Platon. State / World philosophical heritage. The composition in twenty volumes. Ancient philosophy. – Almaty: Writer, 2005. – T.2. – 185-444 рр. 2. Aristotle. Policy / World philosophical heritage. The composition in twenty volumes. Aristotle's philosophy. – Almaty: Writer, 2005. – T.3. – 312- 535 рр. 3. In the same place. 4. In the same place. 5. In the same place. 6. In the same place. 7. In the same place. 8. History of political and legal doctrines: Textbook / Editor-in-chief V. V. Lazarev. – 2nd prod. - M.: The higher education, 2008. – 917 pages. 9. Legal philosophy: The textbook / O. G. Danilyan, L. D. Bayrachnaya, S. I. Maximov, etc. / Under the editorship of O. G. Danilyan. – M.: Eksmo, 2005. – 416 pages. 10. Alighieri D. Monarchy / Anthology of world political science. 10 volumes. Program of world heritage. Almaty: Kazakhstan, 2005. – T. 1. – 315- 320 рр. 11. In the same place. 12. In the same place.
136 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
TOKBAYEVA Z.M. Al-Farabi Kazakh National University, Faculty of Law
Scientific adviser - K.R. Useinova, Candidate of Law Sciences, associate professor of theory and history of state and law, constitutional and administrative law Al- Farabi Kazakh National University
LEGAL IDEOLOGY AS ELEMENT OF LEGAL SYSTEM
The legal ideology means extolment and reestimation of the right. Though the legal ideology is externally not visible, harm of this phenomenon of the state and to society is not less than harm of legal nihilism. Its consequences are heavy. Usually, society understands it late. The legal ideology led to support of law-making solutions of different questions, new progressive institutes among most of the people. The legal idealism is inherent in some slogans during reforms and times of reorganization. Namely, acceleration of social and economic development, increase in a level of living people, uniform and bech of complications strengthening of democracy. The component of legal system is not identical on essence, the legal nature, level of influence of the public relations, however, they submit to some general regularities, are characterized by unity. Social and the environment influences emergence of legal system. Because of it each society has own legal order and an ownership right. Generally this legal system as a community and compliance of precepts of law and internal legal structure which it is visible according to logic of institutes and branches of these norms. The long management of a pragmatic position concerning the right in our society influenced distribution of legal ideology. According to these positions assigned excessive duties to the right and laid great hopes. However, from time pro-procession these hopes were not equaled. Existence of many ineffectual and inefficient laws adopted during reforms, and also negative consequences of some laws strengthened legal mistrust in society. Rate of political and legal ideology originates from ancient communistic times. In those days general worship of different historical plans, decisions and resolutions dominated. Their magic power had implicit trust. And all these documents were lawfully accepted further. If any law does not work, then it does not mean that the law bad. Because, it is much more difficult than we thought. Certain groups of society from psychological aspect are not ready to changes, and in certain cases leave against them. Precepts of law cannot solve an essence of contradictions in society. And in certain cases there was a place to contradictions. As J. Locke told, "it is necessary to adopt less laws, to monitor carefully their execution". The power is
137 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» weak, cannot provide protection of citizens, performance of own laws and the termination of laws. It cannot execute the main functions, that is regulation of public life, providing an order and stability. In many cases above the stated rules were not internally accepted by the people. In this case laws and the real life go the way, it is idealism too. Generally, the main thing of legal ideology is sufficient backwardness and a distortion of legal consciousness and political and legal culture. Reference: 1. Sapargaliyev G. S., Ibrayeva A. S. Theory of the state and right 2. N. I. Matuzov, A. V. Malko. Theory of the state and right
ZHYLGELDIYEV B. A. Al-Farabi Kazakh National University, Law Department
Scientific adviser – Sartaev S. A., Candidate of Law Sciences, associate professor of theory and history of state and law, constitutional and administrative law Al-Farabi Kazakh National University
THE JUDICIAL POWER IS AN INDEPENDENT BRANCH OF THE UNIFORM GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN
In system of law enforcement agencies of the Republic of Kazakhstan courts hold a special position. They are governing bodies of justice and have the competence corresponding to the status of an independent branch of the government. It is known that the government in the Republic of Kazakhstan is single is performed on the basis of the Constitution and laws according to the principle of its separation into legislative, executive and judicial branches and interactions among themselves with use of systems of controls and counterbalances. Any court in the country is reflection of judicial authority. Today it is possible to consider thoroughly claimed the point of view that judicial authority is an independent branch of the government. Creation of strong, autonomous court is command of time which is equitable, first of all, to interests of market economy. General signs of judicial authority are those main beginnings which characterize it as one of branches of the government and are based on its common features transformed in relation to the tasks facing courts. Judicial authority is the powers of authority of court sent for consideration and permission of all affairs and disputes on the violated right applied in the sphere criminal, civil and other forms of legal proceedings established by the law. Judicial authority in the Republic of Kazakhstan belongs only to courts on behalf of regular judges, and also jury members involved in criminal trial in the
138 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» cases and an order provided by the law. Justice in RK is performed only by court. Judicial authority is performed on behalf of the Republic of Kazakhstan and has the appointment protection of the rights, freedoms and legitimate interests of citizens and the organizations, ensuring performance of the Constitution, laws, other regulatory legal acts, international treaties of the Republic. Judicial authority is performed by means of civil, criminal and other forms of legal proceedings established by the law. Judges in case of administration of law are independent and submit only to the Constitution and the law. Adoption of the laws or other regulatory legal acts belittling the status and independence of judges isn't allowed. Any intervention in activities of court for administration of law is inadmissible and attracts legal accountability. On specific affairs of the judge aren't accountable. Judgments and requirements of judges in case of implementation of powers by them are obligatory for execution by all state bodies and their officials, physical persons and legal entities. Non-execution of judgments and requirements of the judge attracts the responsibility established by the law . According to the principle of separation of the authorities, purpose of judicial authority is a protection of the rights, freedoms and legitimate interests of citizens, state bodies, organizations, ensuring performance of the Constitution, laws, other regulatory legal acts, international treaties of RK. Specific signs of judicial authority consist that it is performed only by special state bodies - courts, by means of consideration in judicial sessions of civil, criminal and other cases in the procedural order established by the law. The main function of courts is justice function. Justice - the type of the state activities performed by court on the consideration and permission of civil and criminal cases as it should be providing legality, justification, justice and all-obligation of judgments. Judicial authority and justice are based on democratic principles which represent the basic provisions leading the ideas enshrined in the Constitution and the legislation on courts and the status of judges, determining essence and content of the organization and an order of activity of the courts in case of justice implementation. Organizational communications are regulated by the legislation, the Constitutional law RK "About Judicial System and the Status of Judges of the Republic of Kazakhstan" of December 25, 2000, and functional - the legislation on legal proceedings (a criminal and civil procedural law). Courts of all levels are formed, will be reorganized and abolished by the President of the Republic on representation of the bodies authorized on it. The judicial system of the Republic consists of three links and four instances. A link of judicial system is called set of courts with equal powers. The RK judicial system includes the Supreme Court of RK, the regional and equated to them courts, district (city), and also military courts. The instance — a concept of legal proceedings, it determines stages of hearing of cases. In Kazakhstan four judicial system function: 1) trial courts; 2)
139 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» appeal; 3) cassation; 4) supervising instances. The highest echelon of judicial authority: The chairman of the Supreme Court, his deputies, chairmen of board of the Supreme Court and judges of the Supreme Court are elected by the Senate of Parliament of RK, on the representation of the President of Kazakhstan based on the recommendation of the Supreme judicial Council (the Art. 82 KRK), and subordinate judges are appointed the head of state, on the representation of the Chairman of the Supreme Court based on the recommendation of the Supreme judicial council. The supreme judicial council is headed by the Chairman and consists of the Chairman of the Constitutional recommendation, the Chairman of the Supreme Court, the Attorney-General, the Minister of Justice, deputies of the Senate, judges and other persons designated by the President of the Republic. The status, an order of forming and the organization of work of the Supreme judicial council is determined by the Fundamental Law of the state (Art. 82). The principles of justice established by the Constitution of RK (Art. 77) are general and single for all courts and judges of the republic. Competitiveness as the principle of justice means such creation of this type of the state activities which provides by consideration of civil and criminal cases in judicial sessions equal opportunities of the participating persons on upholding of the rights and legitimate interests. In other words, justice is competitive when the parties can prove actively and as equals the case, state the arguments, give the interpretation of the facts, events and proofs. Publicity of hearing of cases are an open legal proceeding in all courts and declaration of decisions, sentences and resolutions publicly. Resolving an issue of limits of action of this or that principle of justice in case of justice implementation, it is necessary to rely, in - the first, on instructions of the Art. 4 KRK containing categorical rules that: 1. The constitution of RK has the highest legal force; 2. Its regulations have direct action in all territory of RK; 3. laws and other regulatory legal acts adopted in RK shan't contradict its Fundamental Law, i.e. the Constitution of RK. And in - the second, the issue of action of the principles of justice can't be resolved without the law in force component which proclaimed the Constitution of RK of recognition in RK, its system of law the conventional principles and rules of international law and the international treaties having a priority before laws and are applied directly. At the same time if the international treaty RK established other rules than provided by the law, then rules of the international treaty are applied. And the last, specifics of implementation of the principles in various stages of criminal procedure don't mean their dissociation. On the contrary, the principles are mutually connected. For example, the principle of publicity and competitiveness directed to establishment of an objective truth in civil process couldn't be realized if civil process wasn't constructed at the same time on such democratic principles as equality of citizens before the law and court, ensuring use
140 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» of the native language in case of implementation of justice and during legal proceedings. Thus, proceeding from above stated, a conclusion that judicial authority is the independent type of the government belonging only to courts follows, it is exclusive, independent and isolated. The procedural order of activities, implementation of powers by legal proceedings, sublegality - are the most important signs of judicial authority. Court - specially educated public authority, its activities is based on the law and consists, in a sense, in assessment of this or that life situation from a line item of the right and the law. Reference: 1. Law enforcement agencies of the Republic of Kazakhstan. Ibragimov – Almaty 1999. 2. Regulations on qualification classes of judges of RK. 3. The law of the Republic of Kazakhstan "About qualification board of justice of the Republic of Kazakhstan" 4. Resolution of plenary session of the Supreme Court of RK. About establishment of number of structure of boards of the Supreme Court.
MAKSUTOV ZH. 3 year student of law faculty, Al-Farabi Kazakh National University
Scientific adviser - candidate of juridical sciences, associate professor Ospanova D.A.
DRIVING UNDOCUMENTED AND NOT HAVING THE RIGHT MANAGEMENT
Administrative responsibility is the application of state bodies, officials and authorities established by the state of measures of administrative influence to the citizens, and, where appropriate, to organizations for administrative violations committed. In the system of protection of law and order, discipline and legality of administrative responsibility plays an important role, which stimulates to the proper performance of duties, contributes to the prevention of crime.[1,p. 8] In accordance with article 612 of the administrative code:[2] -Management of the vehicle driver who does not have their driver's license or a temporary certificate issued instead of a driver's permit, the insurance policy on compulsory insurance of civil liability of vehicle owners and (or) on compulsory insurance of civil-law responsibility of carrier before passengers, registration and other established by the legislation documents for the vehicle, subject to a fine in the amount of five calculation indices. -Management of the vehicle by a person without rights management (except for educational driving) or the vehicle control by the driver without rights
141 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» management the appropriate category of transport - entail a fine in the amount of fifteen monthly calculation indices. -Management of the vehicle of the driver deprived of the right to drive a vehicle entails a fine in the amount of ten monthly calculation indices. -The actions provided by parts two and three of this article committed repeatedly within a year after imposing of an administrative penalty, entail a fine in the amount of thirty monthly calculation indices. -Transfer of control of the vehicle to the person without rights management (except driving instruction in accordance with established rules) or a person deprived of the right of control of the vehicle, entails a fine in the amount of fifty monthly calculation indices. -The action referred to in paragraph five of this article, committed repeatedly within a year after imposing of an administrative penalty-entails a fine in the amount of seventy monthly calculation indices.[2] Cao creates preconditions for increasing efficiency in the fight with administrative offenses, serves as a mechanism to strengthen the rule of law in the country. He, in particular, fills the gaps in the administrative-legal protection of citizens and organizations, contains more guarantees of the rights of victims; the persons brought to justice, sets more stringent requirements to the procedural form of resolution of the case. Problems of administrative responsibility dedicated their labors to many scientists. Special attention some of them are attracted to such administrative penalties as an administrative fine. The relevance of the research topic due to the fact that administrative law in comparison with other branches of law regulates a broader range of social relations. Administrative-legal prohibitions are present in virtually every sphere of public life. Annually to administrative responsibility are involved, natural and legal persons, whose number amounts to millions. The penalty in administrative law is one of the most common sanctions imposed for Commission of administrative offenses. In the current Code of the Republic of Kazakhstan on administrative offences, the concept of an administrative penalty "an Administrative penalty is monetary collecting imposed for an administrative offence in the cases and to the extent provided in the articles of the Special part of this section, in the amount corresponding to a certain number of monthly calculation index, set in accordance with the law applicable at the time of initiation of proceedings about an administrative offense". [2] Historically, the administrative penalty has been and remains one of the most effective administrative penalties. Both domestic and foreign practice provide ample evidence that skillful application of this punishment can have a serious psychological impact on offenders, and its material consequences – to make it unprofitable to commit various kinds of offenses, including many types of property, economic and other
142 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» activities.[3]Therefore, in some international documents (e.g., standard Minimum rules of the United Nations in respect of measures not involving imprisonment) recommended the wide use of fine as alternative to imprisonment.[4] To date, there has been a trend of liberalization of criminal liability and strengthening administrative penalties. So, within only one and a half years has changed not only the size of the fine in the administrative legislation and new forms of expression. According to the legislator, a fine as a sanction may be quite effective for a number of categories of citizens, especially considering the size of the punishment for certain wrongful acts. Also, in the application of an administrative fine, there are problems. "Statistics show that the recovery of administrative fines for a specific offence is unsatisfactory. Is evasion offenders from execution of the punishment. Many individuals dealing with homelessness, temporarily not working, with low fixed incomes, are insolvent". [5] The problem of application of an administrative fine becomes in modern conditions of particular relevance because, in connection with the worsening crime situation in society, expanding the scope of both criminal and administrative law, which is associated with an increase in the number of compositions of administrative offences and the number of persons brought to administrative responsibility. CaO has significantly strengthened the role of the court in the application of measures of administrative responsibility. The code expanded the range of cases within the jurisdiction of the judges. In this regard, you should refer to the analysis of the major legal norms contained in the Code of the Republic of Kazakhstan on administrative offences concerning the application of administrative arrest. [2] In Cao significantly increased the number of rules has increased administrative fines. The establishment of high amount of the fine generally linked to the nature of the offense, the size of the caused harm, degree of fault of the offender, its property status and other essential circumstances of the act. This situation is understandable. Offenders have simply ceased to react to a penalty are minimal. This situation due to the improving living standards of citizens: the average wage is increasing. Accordingly, should increase the sanctions, so that offenders could feel all the negative effect of misconduct, and it would serve as a lesson to them. It is especially necessary to develop the trend of increasing administrative fines for violations in the field of traffic, which falls most of all on administrative violations. In this case it would be advisable to limit the debtors right to drive vehicles. This could be an effective method to increase collection of fines. If for offence the penalty in the form of the minimum size of the administrative penalty, the offenders simply ignore their obligation to pay an administrative fine.[2] An administrative fine can be imposed on citizens, officials and legal entities. this can also be seen its versatility in contrast to other types of administrative
143 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» punishments, the more that the administrative fine for legal entities often used in quite a respectable size, which clearly has a negative impact on the financial position of the organization that is subjected to this kind of punishment. For citizens it provides both moral and material influence. Administrative penalty as an administrative penalty is much more often used in sanctions of legal norms of the administrative code. [6] It is possible to face still bore the responsibility for an administrative offence, it goes unpunished legislators need to consider those options of dealing with this problem as the establishment of "flexible differentiation" the size of penalties. In some cases the appointment of more mild punishment for certain types of administrative offenses. Including need to seriously consider the possibility of appointing an administrative fine below the lower limit, but not necessarily, given the nature of the offense, personality of the perpetrator, his financial situation and the circumstances mitigating and aggravating administrative responsibility. Reference: 1. Serkov p. P. Administrative responsibility in Russian law: current thinking and new approaches. Monograph. M.: Normal; INFRA-M, 2012. P. 8; 2. The code of Kazakhstan on administrative offences dated 5 July 2014, No. 235-IV (with changes and additions as 26.07.2016); 3. Babayev V. K. the Theory of state and law, Moscow: Yurist, 2012. – 458 p.; 4. Standard minimum rules United Nations in respect of measures not connected with imprisonment (Tokyo rules); 5. Mikhaleva N. In. The court practice on Affairs about administrative offences. edited by P. P. Serkova. M.: Norma, 2008. - 350 p.; 6. Bakhrakh D. N. Administrative law: Textbook for high schools, 2nd ed. izm. and additional M.: Norma, 2012. - 800 p
ASHІR D. 3rd year student of Al-Farabi Kazakh National University
Scientific adviser - Ospanovа D.A. doctor PhD, assoc.profeessor
DIFFERENCE BETWEEN CRIMINAL OFFENSE AND AN ADMINISTRATIVE OFFENSE
The problem of distribution of jurisdiction between administrative and criminal law in the sphere of insignificant or socially harmful offenses has shown recent criminalization of socially harmful acts (their qualification is as criminal offenses). Creation of institute of criminal offenses, in our opinion, was even more aggravated a dispute between branches of the right. His introduction to system of the national right is explained with existence of more number of
144 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» mechanisms of protection of human rights in the criminal and criminal procedure law, but for society the criminal law is always associated with crimes and we consider that there is a risk that the person who has made criminal act and the criminal will be equally condemned by society that contradicts the principle of harmony of a crime and punishment. In Kazakhstan the offer on creation of the institute of administrative justice is considered rather seriously. The administrative justice is one of the instruments of protection of citizens against different actions from public authorities. This issue in the Kazakhstan administrative and legal science was touched by such researchers as A. N. Nurbolatov, N.I.Mamontov and others. As well as for all branches of the national right, for administrative law a certain group of the public relations is considered as a subject of regulation. B. A. Podprigora has subdivided these relations depending on contents on: 1. administrative - questions of the organization of public administration; 2. police officers - attraction from the state to responsibility for an offense; 3. justice - are connected with consideration of publicly legal disputes between executive authorities and the individual; 4. jurisdictional - hearing of cases about administrative offenses. Jurisdictional and police powers are often the same authorized officers that can bring to abuse their power, besides in Kazakhstan practice of application of the judicial instruments among ordinary citizens isn't rather developed. According to this there is a risk of infringement of individual’s interests from public authorities. According to data of Committee on Legal Statistics and Special Report of the Prosecutor General's Office of the Republic of Kazakhstan in 2013 about 360 thousand crimes and 3,3 million administrative offenses have been committed, that is 9 administrative offenses are the share of 1 crime. Proceeding from above told it is possible to assume that citizens face with administrative responsibility much more often and the problem of guarantees of human rights at proceedings about administrative delicts gets high degree of a priority. We would like to offer the following concept of administrative regulation in jurisdictional, judicial spheres: 1. Association of structures of all administrative offenses and criminal offenses in one codification (Administrative Code) and to place it in the sphere of regulation of administrative law. 2. To make the Administrative Code only the collection of structures of administrative offenses and by an example of the Criminal code. 3 Hearing the cases on administrative offenses assign to courts of the general instance. 4. Creation of the separate administrative and procedural code which provides the order of legal proceedings. 5. To authorize specialized interdistrict administrative courts for regulation the judiciary relations.
145 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Association of structures of all administrative offenses and criminal offenses as we consider, corresponds the priority of the principle of humanity fixed at the constitutional level as the administrative law possesses more sparing set of sanctions, besides criminal legal proceedings are more expensive than administrative. Besides in a number of the European countries (Great Britain, France) insignificant offenses are separately allocated, for example, in England all offenses on degree of the weight are subdivided into three types: treason, felony and a misdemeanor that means insignificant acts, which are considered on simplified proceedings It is possible to assume that assignment of hearing of cases about administrative offenses will increase availability of judicial proceedings by courts of the general instance in the considered sphere in the remote areas. Geographical feature of Kazakhstan such is that between the remote settlements and the regional centers the distance can be hundreds of kilometers and for inhabitants of the remote settlements it is rather problematic to be on trial of an administrative case in specialized interdistrict administrative court which is in the large regional center. Also above-named redistribution of powers will make specialized administrative court in highly specialized main institute of administrative justice. Specialized interdistrict administrative courts have to become fundamentals of administrative justice in the Republic of Kazakhstan. Administrative production has to be as a part of a judicial branch of the power for the reason that in point 1 to article 75 of the Constitution of RK it is stated: "justice is carried out only by court". In world practice of such establishments claim for infringement from the public executive body of any interests, generally individuals. The Kazakhstan potential concept of administrative justice is represented in a different way. A specialized interdistrict administrative court is in the first place of instance. The second instance is represented by regional judicial board for administrative justice which consists of representatives of all courts of the first instance in the territory of the region. The regional board elects the representative for republican judicial board for administrative justice at the Supreme Court of RK, it also makes the highest authority. Other important point is creation of the administrative and procedural code in which the proceedings order will enter: 1. about administrative offenses or delicts; 2. disciplinary character in relation to the public authorities; 3. connected with administrative justice. This code by analogy with Civil procedural and the Codes of Criminal Procedure has to establish a rigid order of production on the above-stated spheres and limit abuse of authority from officials, it is very important for simple citizens as it is possible to face more often with administrative law than criminal. Importance of creation of the administrative and procedural code is noted in the Decree of the President of Kazakhstan on August 29, 2009 "About the concept
146 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation» of legal policy of the Republic of Kazakhstan from 2010 to 2020":" Other important direction is development of administrative procedural law in which an adoption of the Administrative procedural code would be the top. At the same time it is necessary to decide accurately on a subject of regulation of the administrative and procedural legislation" Also there has to be a special legislation and specialized authorities for each group of the public relations regulated by administrative law, for example divisions into branches of the power, for increase in overall performance in these spheres and to restriction of abuse of competent authorities. The administrative and procedural code has to include a production order on such spheres as administrative justice, delicts, disciplinary process in public authorities. We consider that extent of realization of the constitutional principle of legality directly depends on development of the considered sphere. Reference: 1. Administrative law: a training course / under the editorship of R.A.Podoprigora. - Almaty: Tax expert, 2010. – p.386. 2. The registered crimes since 2007 [An electronic resource] Committee on Legal Statistics and Special Report of the Prosecutor General's Office of the Republic of Kazakhstan 3. Constitution of the Republic of Kazakhstan. Educational and practical instruction. - Almaty: publish. Norma-to, 2011, 44 pages. 4. Drag of River. Administrative punishments. M, 1994. 5. Solovyov A. A. French model of administrative justice: "Administrative and Information Law" Monograph / Department Financial University under the Government of the Russian Federation / Predisl. д.ю.н., prof. M. A. Lapinoy. – M, 2014. – 242 pages. 6. Nurbolatov A. N. Administrative justice. Comparative and legal analysis: manual. - Almaty: Kazakh University – p.122. 7. The Decree of the President of the Republic of Kazakhstan on August 24, 2009. “About the concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020" [An electronic resource]//the Information and legal system of regulations of the Republic of Kazakhstan "Әділет"
147 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
CONTENTS
Ospanova D. A. TENDENCIES OF DEVELOPMENT OF THE MODERN ADMINISTRATIVE LEGISLATION IN THE REPUBLIC OF KAZAKHSTAN . 7 Goncharov S. B. INNOVATIVE TECHNOLOGY STUDY LEGAL AND LEGAL CULTURE YOUTH ...... 12 Mukhiyev A.S. ADMINISTRATIVE AND LEGAL REGIME OF ROAD TRAFFIC SAFETY ...... 15 Moldakhmetkyzy A. PROBLEMS OF ACTIVIZATION OF SOME ASPECTS OF LAWS OF NATIONAL CUSTOM IN THE MODERN PERIOD ...... 18 Alpeis S. LEGAL CULTURE AS A BASIS OF FORMATION OF CONSTITUTIONAL STATE AND CIVIL SOCIETY ...... 21 Anuarbekov B. IMAGE OF CIVIL SERVANT IN THE REPUBLIC OF KAZAKHSTAN 25 Arzhan N. EVOLUTION AND MODERNIZATION OF AN ADMINISTRATIVE DELIKTOLOGIYA IN THE REPUBLIC OF KAZAKHSTAN ...... 28 Auganov S. THE LEGAL BASIS FOR THE FORMATION OF AN ANTI- CORRUPTION CULTURE ...... 32 Abshekenova B.S. ADMINISTRATIVE JUVENILE DELINQUENCY ...... 35 Baimagambetova A. T. ADMINISTRATIVE LIABILITY FOR CORRUPTION OFFENCES ...... 37 Bainazarova D.S. ADMINISTRATIVE LIABILITY FOR TRAFFIC ACCIDENTS ...... 40 Bakhytzhan D. LEGAL STATUS OF WOMEN IN KAZAKHSTAN ...... 43 Bakhytzhanov R. LAW-ENFORCEMENT FUNCTION OF THE MODERN STATE ...... 48
148 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Bogomolov D.V. EVIDENCE IN ADMINISTRATIVE COURT PROCEEDINGS ...... 50 Daniyarov S. QUESTIONS OF EMERGENCE OF THE KAZAKH STATEHOOD IN WORKS OF THE “ALASH” PARTY LEADERS ...... 53 Doszhanov G.K. CUSTOMARY - LEGAL SYSTEM OF TRADITIONAL SOCIETY ...... 58 Kabdiev A.A. THE INSTITUTE OF ADMINISTRATION JUSTICE IN THE CONTEXT OF MODERN KAZAKHSTAN ...... 60 Kaliaskarova M. VIOLATION OF RULES OF TRANSPORTATION OF HAZARDOUS SUBSTANCES OR OBJECTS ON A TRANSPORT ...... 63 Kanbatyrov B.G. POSITION OF THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN IN THE SYSTEM OF STATE AUTHORITIES ...... 65 Kanbatyrov Y.G. THE CONCEPT AND ESSENCE OF LEGAL STATE ...... 68 Kenzhina V.E. INDIVIDUALS AS SUBJECTS OF ADMINISTRATIVE LAW ...... 72 KozhabaY A. HISTORICAL DEVELOPMENT OF THE LEGAL ASPECTS CONFEDERATION ASSOCIATION OF SWITZERLAND AND THE UNITED STATES ...... 75 Kozhageldieva D. BUILDING IN MEDICAL DETOX AS ONE OF THE ADMINISTRATIVE RESPONSIBILITY PROCEDURAL MEASURES ...... 79 Kuanysh M. PROTECTION OF HUMAN RIGHTS AND CIVIL EMERGENCY IN OPERATION ...... 81 Kudabaev A. THE CAREER AND WAGE CIVIL SERVICE SYSTEM IN WORLD PRACTICE ...... 86 Kurenkeeva A. TO THE QUESTION OF THE JUDICIARY IN THE SEPARATION OF POWERS THEORY: THEORETICAL AND LEGAL ASPECTS ...... 88
149 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
Abdrahimov L.R. ISSUES OF LEGAL LIABILITY...... 93 Zhangabylova M.G. FEATURES OF LEGAL REGULATION OF OBLIGATION RELATIONS IN TRADITIONAL KAZAKH SOCIETY ...... 95 Mamonova A. A. MUTUAL RELATIONS OF ACIMATES WITH MASLIKHATS IN THE REPUBLIC OF KAZAKHSTAN ...... 98 Mamytkhan M. M. ADMINISTRATIVE AND LEGAL STATUS OF JURIDICAL ENTITIES ...... 101 Mukhtarov M.M. THE CONTENT AND IMPLEMENTATION OF THE PRINCIPLES OF LEGAL LIABILITY...... 104 Oralbekov A. EFFICACY OF THE PRINCIPLE OF UNITY AND INTERACTION OF RIGHTS AND RESPONSIBILITIES IN THE CONSTITUTIONAL LAW OF THE REPUBLIC OF KAZAKHSTAN ...... 108 Stamkulov S. SOCIAL AND CULTURAL FOUNDATIONS OF THE EDUCATIONAL FUNCTION OF LAW ...... 117 Sagitzhanova A.K. FAILURE TO FULFILL OBLIGATIONS ON THE CITIZENS OF MILITARY REGISTRATION ...... 120 Salamatov M. ADMINISTRATIVE-LEGAL CONCEPT OF THE QUALITY OF WORK OF CIVIL SERVANTS ...... 122 Sergalieva A. M...... 130 A COMPULSORY TREATMENT AS A MEASURE OF ADMINISTRATIVE SUPPRESSION ...... 130 Serikbaikyzy M. THE IDEA OF THE MONARCHY IN THE HISTORY OF POLITICAL AND LEGAL DOCTRINES ...... 133 Tokbayeva Z.M. LEGAL IDEOLOGY AS ELEMENT OF LEGAL SYSTEM ...... 137 Zhylgeldiyev B. A.
150 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
THE JUDICIAL POWER IS AN INDEPENDENT BRANCH OF THE UNIFORM GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN ...... 138 Maksutov ZH. DRIVING UNDOCUMENTED AND NOT HAVING THE RIGHT MANAGEMENT ...... 141 Ashіr D. DIFFERENCE BETWEEN CRIMINAL OFFENSE AND AN ADMINISTRATIVE OFFENSE ...... 144
151 International scientific-theoretical conference of students and undergraduates «Actual problems of administrative law and procedure: theory and practice of regulation»
SCIENTIFIC PUBLICATION
DIGEST OF ARTICLES
International scientific-theoretical conference of students and undergraduates
«ACTUAL PROBLEMS OF ADMINISTRATIVE LAW AND PROCEDURE: THEORY AND PRACTICE OF REGULATION»
Printed in author's edition
Typeset in Berling by Ziegler Buchdruckerei, Linz, Austria. Printed by "East West" Association for Advanced Studies and Higher Education GmbH, Vienna, Austria. Austria on acid-free paper. Am Gestade 1, 1010 Vienna, Austria [email protected], www.ew-a.org
152