Give a brief description of the coercion method. Coercion as a method of exercising state power
In the current system of power relations, there are perfect and adequate means of influencing social processes, the nature of which largely depends on the degree (ability) of adaptation of these processes to the will of power. In administrative (own-power) relations, these means are called methods, i.e. methods of purposeful legal influence, - methods of management. Let us preliminarily note that, in the generally accepted sense, a method is a set of tools through which a practical impact on social relations or something else is achieved. This definition significantly expands the range of methods that precede, accompany and follow managerial relations. For example, the method of legal regulation "selects" a certain group (sphere) as the object of its influence. public relations, i.e., in fact, the very nature of the connections of the subjects of such relations. The method of management is specific: it is designed to influence directly the will, the behavior of one or another participant in social relations as a social reality; is used by the subjects of managerial relations to solve their daily (practical) tasks. "Like any managerial influence, management methods," writes Yu.N. Starilov, "ensure proper order in the management system; they have an organizing character and streamline the processes occurring in the management system." The management method is the own toolkit of the subject of power, while other methods are used by a much larger number of participants in public relations and can be extended to these subjects as well. Persuasion and coercion are universal methods of any activity.
Starilov Yu.N. Administrative law: In 2 hours. Part 2. Book two: Forms and methods of management actions. Legal acts of management. Administrative contract. Administrative Justice. Voronezh, 2001, p. 32.
The goal of both persuasion and coercion is the same - to subjugate and keep the will of the subject in the sphere of certain power claims, but the means and degree of their influence are different. Consider the features of each of these methods. Let us make a reservation that the question of the correlation and role of the methods of coercion and persuasion in managerial activity has been studied both in philosophical and legal literature. Based on the results of research in this area, we will focus only on issues that require clarification and generalization, which are directly related to the topic of this work.
Persuasion as a method of power influence carries a relatively positive load from the position of the control object, is a proactive means of implementation managerial tasks and functions, is designed to stimulate the proper behavior of participants in managerial social relations by carrying out activities primarily of moral influence. Persuasion is a liberal method of influencing the consciousness of a subject subject, since it implies, on the basis of a verbal, educational, organizational, encouraging or other creative act, a voluntary and conscious perception of the expediency of the imperatively prescribed nature of the activity. From these positions, the characterization by some scientists of the method of persuasion as only a mental influence, as a result of which the domineering and subservient wills will coincide, without finding any openly expressed either psychological or physical opposition from the subservient, deserves attention.
In this regard, we draw attention to the inaccuracy of the position of P.E. Nedbaylo, according to whom "conviction lies in the formation of many people's correct views and feelings about the need for voluntary compliance with prescriptions, rules and norms ..." (Nedbaylo P.E. Application of Soviet legal norms. M., 1960. P. 497) . Such a definition does not clarify the understanding of persuasion as an externally expressed influence; rather, it characterizes the result of such influence - the psycho-emotional reaction and attitude of the face.
In this regard, we emphasize the inadmissibility of identifying education and persuasion. The unjustified fallacy of such a logical operation was also noted by I.S. Samoshchenko, who pointed out that education is the goal of all work to ensure social discipline, and "persuasion, coercion, etc. are the means to achieve this goal" (Samoshchenko I.S. The content of persuasion and coercion in a socialist state // Soviet state and law, 1967, No. 2, p. 13).
An interesting thought on this subject is stated in the legal literature: "as a result of such an impact, the persuaded perceives the will of the persuader as his own, he forms views that correspond to the views of the persuader" (Kozyubra K.I. Persuasion and coercion in Soviet law at the present stage of communist construction: Abstract of dissertation... candidate of legal sciences, Kyiv, 1968, pp. 6 - 7).
For more details see: Baitin M.I. State and political power (theoretical study): Abstract of the thesis. dis. ... Dr. jurid. Sciences. M., 1973. S. 8; Bratus S.N. Legal responsibility and legitimacy (essay on theory). M., 2001. S. 49 - 50; Keyzerov N.M. Power and authority. Criticism of bourgeois theories. M., 1973. S. 45.
Coercion as a method of managerial activity is secondary, but independent of persuasion in the procedural context, since they are phenomena of the same level and order. Under coercion, the will of the subject is not progressive: it does not imply the choice of a model of behavior corresponding to his convictions; moreover, for the subject of management himself, the inner convictions of the subordinate no longer have and should not have any decisive significance. Coercion, thus, is traditionally an auxiliary method of influence used due to the ineffectiveness of persuasion, and such an actual state that “excludes a person’s decision from the chain of determination”, because this method does not allow the choice of forced behavior and, therefore, the choice between performance and non-performance of duty. In this regard, coercion as an authoritative-binding influence on the coerced person is associated with the imposition of an authoritative will on subordinate persons, the suppression of their antisocial motives (mental aspect) and with the possibility of implementing the sanction of an imperative prescription (physical aspect). It always contradicts (partially or completely) the will of the coerced, implicitly fits into the system of his ideas and requires obedience to commands with which he internally or externally disagrees, and thus differs from persuasion.
To strengthen this argument, we also add that back in the first half of the 20th century. CM. Bertsinsky pointed out that, unlike bourgeois administrative law in Soviet law, all the main services of the state carry out regulatory-positive control, and the use of coercion is auxiliary and temporary (see: Bertsinsky S. The subject of Soviet administrative law and the method of studying it // Problems Socialist Law, 1939, No. 2, pp. 66 et seq.).
Rebane I. Persuasion and coercion in the fight against encroachments on the Soviet legal order // Works on jurisprudence: Uchen. app. Tartu State university Issue. 182. Tartu, 1966. P. 180.
Coercion in a broad, or rather, general (abstract) sense, can also be recognized as a state of forced submission of a person to the rules of a hostel, any prohibition or obligation. However, in this sense it does not have a decisive influence on the consciousness of the subject; there is no answer to the question of what (internally voluntary or externally motivating) motives he is subject to social regulations. Therefore, coercion (as opposed to persuasion) must be present (capable of inevitably, immediately affecting a person in a negative way), direct (concrete) and real (valid), and the form of its expression is of no fundamental importance.
We believe it is necessary to pay attention to the uncertainty of V.M. Gorshenev that "the main purpose of the method of coercion is to prevent the violation of established rules by the threat of unfavorable consequences" (Gorshenev V.M. Methods and organizational forms of legal regulation in a socialist society. M., 1972. P. 73). This definition of the functional purpose of the method of coercion is more applicable to the method of persuasion or, at best, to an overly broad interpretation of the method of coercion, since it does not meet the criteria for the availability, immediacy and reality of coercion as an actual state-imperious influence.
In the general theoretical sense, the boundaries between these two main methods of power influence as a general social phenomenon are still unsteady and require additional scientific justification. Persuasion and coercion as methods of control are interpenetrating - they are "two interrelated" poles "of a single whole": the possibility of coercion forms the conviction of the subject, and coercion itself justifies the need for his subordination to the will of the controlling subject, i.e. they are mechanisms for ensuring proper behavior and order. Moreover, persuasion affects people through the education of socially necessary internal motives, aspirations of a person, and coercion - on the internal motives of a person through his actions.
Therefore, the positions of scientists also deserve special attention, who, along with the methods of persuasion and coercion, distinguish other new methods of managerial activity, for example, encouragement (stimulation) (see for more details: Baranov V.M. Encouraging norms of Soviet socialist law / Edited by M.I. Baytina, Saratov, 1978, pp. 4 - 7; Gorshenev, VM Methods and organizational forms of legal regulation in a socialist society; pp. 74 - 75; Lazarev, B.M. 37; O. E. Leist, Sanctions in Soviet Law, Moscow, 1962, pp. 40 - 46; and others).
Alekhin A.P., Karmolitsky A.A., Kozlov Yu.M. Administrative law of the Russian Federation: Textbook. M., 1996. S. 254. N.M. Konin, believing that "practically no method is applied in isolation. All of them, as a rule, are used in a complex, in interconnection with each other" (Konin N.M. Organizational and legal foundations government controlled socialist social production (administrative-legal research): Dis. ... Dr. jurid. Sciences. Saratov, 1977, p. 267).
See: Khaikin Yaz. Structure and interaction of moral and legal systems. M., 1972. S. 240.
Without denying that the method of persuasion in managerial activity will gradually dominate, it is necessary to recognize the accompanying role of coercion. It, as a number of scientists correctly emphasize, will not consist in narrowing the scope of coercion along the path of reducing the scope of its imperative-positive regulation. Coercion as a method of domination should be characterized in such a way as to be used not as an instrument of direct influence, i.e. physical, and indirect - mental impact. In other words, coercion must influence the will of the subject primarily by convincing him of the possibility of applying coercive measures. Even in the IV century. BC. the Greek philosopher Democritus wrote: "... he who educates ... by persuasion and reason will be better than the one who applies law and coercion."
See: Kozyubra N.I. Decree. op. S. 14; Rebane I. Decree. op. S. 41; Khangeldiev B.B. Narrowing the scope of administrative coercion and the application of administrative punishment - a pattern in the development of socialist public relations // Uchen. app. Sverdl. legal in-ta. 1964. Issue. 4. S. 113 - 154.
Cit. Quoted from: Kudryavtsev VN Law as an element of culture // Law and power. M., 1990. S. 242.
Recently, not only the trend, but also the assessment of the effectiveness of power, depending on its ability to provide a balance between persuasion and coercion in the sphere of law enforcement, has become more and more dominant. Consequently, coercion as a method of management is understood as exceptional. Its role becomes more tangible precisely in a reasonable, complex and selective combination with the method of persuasion, this makes the issue of its scientific study no less relevant.
In this regard, the statement of V.I. Lenin that "first of all, we must convince, and then force" (Lenin V.I. Complete. collected works. T. 43. P. 54). The viability of this principle is also reflected in the current scientific literature. As G.V. Atamanchuk, "it is important not to oppose the methods of managerial activity, but to apply them comprehensively, selectively, in accordance with the circumstances, the nature of situations and the level of people's behavior" (Atamanchuk G.V. Theory of public administration: Course of lectures. M., 1997. P. 177 - 178).
Thus, coercion as a method of influencing a subject with power presupposes the creation of such a state in which the will of the subordinate is not so much opposed internally or externally to the will of the subordinate, but is, in principle, excluded from among the factors that have a decisive ad hoc (for a situation of subordination) significance, which requires not less effort on the part of the subject of power to organize adequate conditions for the situation of subordination.
In this context, the will of the subordinate is interpreted as his attitude to the situation of subordination, in other words, a subjective assessment expressed in the desire (which is less likely, but possible) or unwillingness to obey the commands of the subject of power. Therefore, it does not follow from this that coercion as a method of power influence is applied without taking into account the will of the subordinate as his attitude to the circumstances that served as the basis (pretext) for coercion (guilt).
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Specialty - 12.00.01 - theory and history of law and state; history of the doctrines of law and the state
COERCION AS A METHOD OF IMPLEMENTATION
STATE AUTHORITY
TSYGANKOVA Evgenia Alekseevna
Moscow - 2010
I. GENERAL DESCRIPTION OF WORK
The relevance of the dissertation research topic due to the theoretical and practical significance of issues related to state coercion, which is a complex social and legal phenomenon. The problems of state coercion are closely connected not only with the definition of methods for the implementation of social management, but also with the problems of ensuring public order, combating illegal acts, protecting the rights of citizens, which this stage development of our society is of paramount importance. As the President of the Russian Federation D. A. Medvedev noted, the rules of law should be implemented on a voluntary basis, but one should not forget about the possibility of using coercion for their non-fulfillment http: // www.kremlin.ru / transcripts / 3943. Robust and scientifically based legal basis state coercion guarantees its effectiveness in strengthening the rule of law, ensuring individual rights, and protecting law and order.
There are two main methods of social control - persuasion and coercion. The latter plays a significant role, especially within the law. The implementation of coercive influence can occur in order to prevent, suppress illegal acts, restore a violated right, and bring the perpetrators to legal responsibility. At the same time, there are many facts of illegal, unjustified violations of the procedure for the application of coercive measures, including by internal affairs bodies. Coercion, carried out within the framework of the law, requires a deeper study.
The dissertation attempts to study the essence and content of state coercion in the light of the implementation by the authorities state power his powers, his role in maintaining law and order in the country and ensuring the rights of citizens. The main feature of state coercion is that it is of a public law nature and is applied by the relevant competent authorities. Necessary condition successful solution of the problems of implementation of state coercion is correct application legislation of the Russian Federation, which implies the need for a theoretical analysis of various coercive measures.
The formation of a rule of law state in Russia requires the consistent implementation of a number of fundamental principles. The most important of them are the principle of priority of the rights and freedoms of man and citizen, the principle of legality. At the same time, there is a violation of the principle of the inevitability of responsibility, there are many unsolved, latent crimes, when the necessary coercion is not implemented. No less important is the creation of legal guarantees in all spheres of public life. Finally, we should not forget about the legal culture of officials and the entire population.
The above confirms the timeliness of a theoretical analysis of such a method of social management as coercion, since it creates the possibility of developing recommendations aimed at improving the law itself and its more effective application in the practice of executive and judicial authorities, internal affairs bodies.
The degree of development of the topic. The problems of state coercion have already been the subject of research in the general theoretical and sectoral literature. A significant contribution to their development was made by such outstanding Russian thinkers as B. A. Kistyakovsky, N. M. Korkunov, P. I. Novgorodtsev, L. I. Petrazhitsky, E. N. Trubetskoy, B. N. Chicherin, G. F. Shershenevich and others.
Within the framework of the theory of law and the state, such fundamental problems as the essence of law and the state, principles of law, state power, ensuring the rule of law, patterns of emergence, functioning and development of legal consciousness and legal culture, which underlie the theory of state coercion, are reflected in the works of V.S. . Afanasiev, V.K. Babaeva, S.V. Babaeva, M.I. Baytin, V.M. Baranova, N.V. Vitruk, A.I. Zinoviev, G.D. Kovaleva, M.I. Kovaleva, E.V. Kuznetsova, V.V. Lazareva, A.V. Malko, N.I. Matuzova, V.S. Nersesyants, V.E. Chirkin and others.
The works of such researchers as S.S. Alekseev, V.D. Ardashkin, B.T. Bazylev, M.I. Baitin, S.N. Bratus, S.A. Komarov, D.A. Kerimov, S.N. Kozhevnikov, A.I. Kozulin, O.E. Leist, J.I. Hovsepyan, A.S. Puchnin, T.N. Radko, I. Rebane, V.V. Seregina, I.A. Speransky, V.M. Syrykh and other authors. In the works of the noted authors, important aspects essence and content of state coercion, a number of definitions of the concept of "coercion" have been developed. It should be noted that in most works the issues of coercion are considered within the framework of the problem of legal responsibility.
In the branch legal literature, a significant contribution to the development of this problem is made by such scientists as D.N. Bahrakh, I.A. Galagan, A.I. Kaplunov, N.V. Makareiko, V.M. Manokhin, L.L. Popov, K.M. Sarsenov, L.B. Smirnov, M.S. Studenikina, A.P. Shergin and others.
Thus, to date, a wealth of legislative experience and practical material has been accumulated on issues related to the implementation of coercion. The need to systematize and comprehend this material in the light of the needs of theory and practice, generalization of the experience of the activities of the competent authorities in this direction determine the expediency of further scientific development of this issue.
The object of the dissertation research are social relations associated with state coercion and its implementation as a complex, multifaceted social and legal phenomenon necessary for the existence and progressive development of society.
The subject of dissertation research- the essence of state coercion, its main features, legal principles, forms, place and role in the activities of public authorities.
The purpose of the dissertation research is to analyze the main theoretical aspects state coercion as a method of social management, the grounds and goals of its application, determining the significance in the activities of state authorities, including internal affairs bodies.
The subject and purpose of the study determined the range of interrelated tasks, the solution of which was the content of this work. W dissertation tasks:
Identification of signs of social management and, on this basis, clarification of its definition;
Establishment of basic methods of social management;
Analysis of the essence and types of state coercion;
The study of the legal principles of state coercion;
Determination of the features of legal relations of coercion;
Studying the place and role of state coercion in the activities of public authorities;
Analysis of the criteria for classifying state coercion into individual measures (types, forms);
Study of the implementation of various types of coercion.
Methodological basis of the study constitute the provisions of materialist dialectics and the scientific methods of cognition of objective reality arising from them. In the process of research, general scientific, particular scientific and special methods were used: logical (analysis, synthesis, abstraction, deduction, induction, etc.), systemic, formal legal, historical legal, comparative legal, sociological, etc.
The theoretical basis of the study compiled the works of domestic and foreign scientists on the theory and history of state and law, constitutional, administrative, criminal, criminal procedure law, penitentiary, civil, civil procedure and other branch sciences, as well as philosophy, political science, sociology.
Normative basis of the study drafted the Constitution of the Russian Federation, the Codes of the Russian Federation (Criminal, Civil, Administrative Offenses, Criminal Procedure, Arbitration, Customs, Tax, etc.), federal constitutional and federal laws (“On the Police”, “On Citizenship”, “On Weapons” , "On the state of emergency", "On the sanitary and epidemiological well-being of the population", "On the migration registration of foreign citizens and stateless persons in the Russian Federation", etc.), the draft law "On the Police of the Russian Federation".
Scientific novelty of the research is determined both by the very formulation of the problem, and by the approach to its study, taking into account the development of this topic.
In the dissertation research, a comprehensive analysis of the essence of state coercion as a special state-legal phenomenon was carried out; for the first time, coercion was considered within the framework of legal relations; the author's definition of the legal relationship of coercion was proposed; clarified definitions of state coercion, state-legal coercion; proposed new approach to the concept of "coercion" and the criteria for distinguishing it from coercion. The expediency of using the term "legal obligation to submit to measures of state coercion" as one of the types of obligations in legal relations is substantiated. Two types of influence of the will of the subjects of relations on the emergence of legal relations of coercion (arising at the will of one of the subjects and against the will - on the basis of the law) are singled out; a classification of measures of state coercion is proposed; various measures of state coercion (preventive, suppressive and others) have been studied.
The main provisions for defense:
1. Depending on the relationship with the law, it is proposed to consider legal and non-legal coercion. The legal is carried out either in accordance with legal laws, or is coercion “before the law”, while not contradicting it. Coercion carried out in violation of the law or its absence (illegal), or on the basis of illegal laws, will be illegal. The latter should be identified with violence. Legal coercion can be carried out by the state (state-legal coercion) or be delegated.
2. State-legal coercion is a kind of social coercion, which consists in the external physical, mental or other impact of state-authorized bodies, officials or other subjects under the power of the state on the will, consciousness and behavior individuals and organizations through the application of unfavorable legal measures or the threat of their application, which, as a rule, is expressed in moral or physical suffering, which imposes legal restrictions on the subject, in order to protect human and civil rights, ensure law and order.
3. The legal relationship of coercion is a power relationship between a physical or legal entity(organization) subject to coercive measures, and the state represented by authorized bodies, based on a normative prescription (sometimes the analogy of a law) and associated with the implementation of the protective function of the state.
4. Legal enforcement is proposed to be classified:
By the type of impact on the will of the coerced (mental, physical, property, organizational);
By target orientation (preventive, suppressive, remedial, punitive) 1 This term is used as a replacement for the term "punitive (punitive) liability" as it more adequately reflects the essence of this phenomenon. , security);
In relation to law (legal (“before the law”; based on legal law), non-legal (illegal; based on non-legal law));
By mediation by law (state and public);
By forms of implementation (implemented in legal and non-legal forms);
On the grounds of application (criminal law, administrative, disciplinary, civil law, other);
For subjects using coercion (used by state bodies, other subjects on the basis of the law, delegated);
For state bodies that use coercion (carried out by the head of state, legislative, executive, judicial, control and supervisory bodies).
5. It is necessary to clarify the name of this type of legal obligation in a legal relationship, as the obligation to bear legal responsibility. Instead, it is advisable to use the more precise term “duty to comply with measures of state coercion”, since, in addition to legal liability, subjects must undergo preventive, repressive, restorative and other coercive measures that are not covered by the term “duty to bear legal responsibility”.
Theoretical and practical significance of the research is that the materials contained in the dissertation, scientific provisions and conclusions can affect the process of improving activities in the field of law enforcement, the fight against crime, and the administration of justice. In particular, in the process of law-making, they can serve as the basis for the adoption of appropriate changes in legislation in order to regulate in more detail the grounds and procedure for the application of coercion. Author's materials, conclusions can assist in the law enforcement activities of state bodies, including law enforcement. The dissertation research can be a scientific basis for further theoretical developments in the field of problems of the application of state coercion both in the general theory of state and law, and in branch sciences. The results of the dissertation can be used in the educational process when lecturing on the theory of state and law, administrative and criminal law.
Testing and implementation of research results. The main provisions, conclusions and proposals formulated in the study are reflected in 15 published works of the author, with a total volume of 5.7 p.p. The results of the research were tested in the author's presentations at conferences: scientific and practical conference "Prospects for the development of science and society at the beginning of the III millennium" (Stavropol, 2006); 52nd scientific and methodological conference "Trends in the development of Russian legal science: current experience and real prospects" (Stavropol, 2007); II Interregional Scientific and Practical Conference "Russian Civilization: Past, Present and Future" (Stavropol, 2009); International scientific and practical conference "Man in the Education System: Trends and Prospects" (Sibay, 2010); II International Scientific and Practical Conference " Actual problems modern Russian law” (Nevinnomyssk, 2010).
The results and main provisions of the study were introduced into the educational process in the disciplines "Theory of State and Law", "Criminal Law", "Administrative Law" in the Stavropol branch of the Krasnodar University of the Ministry of Internal Affairs of Russia, North Caucasian social institution, and are also used in carrying out information and educational work with the personnel of the Criminal Investigation Department of the Central Internal Affairs Directorate for the Stavropol Territory in order to increase the level of legal culture, strengthen the rule of law and discipline, increase vocational training employees of the internal affairs bodies.
Structure and scope of work were determined in accordance with the purpose and objectives of the study, as well as the requirements for dissertation research. The dissertation consists of an introduction, two chapters, including seven paragraphs, a conclusion, a bibliographic list and an appendix.
II. MAIN CONTENT OF THE WORK
state coercion power social
In the introduction the choice of the topic of the dissertation research, its relevance and significance for science and practice are substantiated, the object, subject, purpose and objectives of the study, methodological, theoretical and regulatory framework research, the scientific novelty, theoretical and practical significance of the work is revealed, the provisions submitted for defense are formulated, information is provided on the approbation of the research results.
In the first chapter "State coercion in the system of methods of social management" the legal nature of social management, the main methods by which it is carried out, the concept of coercion, its role in the theories of legal understanding, the correlation of state coercion with other related categories are considered, the principles for the implementation of coercive measures are determined.
Individuals and their associations are among themselves in various social relations. Coordination of their interests is carried out with the help of social norms, which act as standards, rules of human behavior. Social norms regulate the interaction of people in the sphere of material production, in social and political life. These include moral norms, customs, traditions, corporate, religious norms, legal norms. The reality of management is provided by such qualities as organization, responsibility, subordination, strength, will. Taken together, they form a new quality - the authoritativeness of management, i.e., endowing the subject of managerial activity with the necessary powers for the successful implementation of the managerial functions assigned to him.
Any state must carry out general social functions, act in the interests of the whole society. It is not only an instrument of repression, a machine of domination by some class or social group, but also represents the whole society, is a means of its unification. After all, power is by its very nature a social phenomenon.
For the normal life of any society, a certain order, regulation of social relations is necessary, which are achieved with the help of social norms that determine the nature of people's behavior. However, these rules are valid only when they are implemented. The existence of such a social phenomenon as coercion, including state coercion, necessitates the conformity of each member of society with their actions with the rules of conduct established in it, as well as the possibility of adverse consequences if they are violated.
Solving any task, the state carries out lawmaking and establishes the types and sizes of coercive measures, the grounds for their application, determines the subjects of jurisdictional activity and their competence, the procedure for exercising coercion, and the rights of citizens to protection.
In the process of law enforcement, coercion is reduced to such an impact, as a result of which a person behaves against his will, but in the interests of society and the state. The subject of law is forced to perform duties and comply with prohibitions. However, depending on the specific historical conditions, the methods also change. state activity. In addition to coercion, the state also uses the method of persuasion.
Analyzing the opinions of scientists (S. V. Babaev, S. P. Bratus, V. G. Kapustyansky), the dissertator comes to the conclusion that persuasion is a method of actively influencing the will and consciousness of people by ideological and moral means to form their views and ideas based on the awareness of the social utility of power and its decisions.
Coercion has traditionally been considered and is regarded as one of the types of mental coercion. It seems that this is not entirely accurate.
According to the author, coercion can be interpreted as the provision of a certain mental impact on the subject by issuing a rule of law that prescribes directly or indirectly obligated behavior of the subject in order to achieve a legal result.
In the very fact of the existence of a legal norm lies compulsion, since the norm has an imperative character. The binding and prohibiting norms directly determine the obligations of the subjects, and the authorizing ones, due to the representative-binding nature of the norms, indirectly establish the obligations of the other side of the legal relationship. The sanctions of the rules of law contain the threat of negative consequences in relation to subjects whose behavior does not meet these requirements. Coercion is only a legitimate threat of sanctions and only in the future. The criteria for distinguishing coercion from mental coercion are the target orientation, the nature of the emerging legal relations, the peculiarity of the subject composition, the degree of reality of the threat of the use of coercive measures. Thus, coercion occupies an intermediate place between persuasion and coercion.
The meaning of the implementation by the state of its functions through coercion, as a rule, is linked to the need to protect society, to ensure the protection of citizens from the unlawful encroachments of individuals. A significant role is given to coercion as a means of preventing offenses, restoring violated legal conditions.
Based on the analysis of the works of S. S. Alekseev, N. V. Makareiko, D. N. Bakhrakh, E. A. Satina, V. V. Lazarev, V. D. Perevalov, K. M. Sarsenov, V. V. Seregina, the dissertation student identifies the following signs of state-legal coercion. It is one of the types of social coercion; is based on the principles and norms of law; represents an external mental, physical, organizational or other impact on the consciousness, will and behavior of the subject; expressed in the form of various legal restrictions; is used to strengthen the regime of law and order in the state, to protect the rights and legitimate interests of the individual, society, state; carried out on the basis of a strict legal procedure; is a specific form of law enforcement activity of specially authorized bodies of the state, officials. Outside and beyond legal forms legitimate state coercion cannot exist.
The features of state-legal coercion highlighted above allow us to formulate its concept: it is a kind of social coercion, which consists in external physical, mental or other influence of state-authorized bodies, officials or other subjects by the power of the state on the will, consciousness and behavior of individuals and organizations through the use of unfavorable legal measures or the threat of their use, expressed, as a rule, in moral or physical suffering, which imposes a legal restriction on the subject, in order to protect human and civil rights, ensure law and order.
In a number of cases, state coercion can also be carried out contrary to law, i.e. be illegal. Such coercion should be associated with violence. Illegal coercion takes place either in violation of the law or its absence (illegal), or in the publication and application of illegal laws. As an example of unlawful coercion, one can cite the activities of fascist death camps, in which the destruction of people was put on the conveyor. An example of the use of coercion based on non-legal laws can be considered the Decree of the Central Executive Committee and the Council of People's Commissars of the USSR of December 1, 1934 "On Amendments to the Current Criminal Procedure Codes of the Union Republics", according to which the investigation and consideration of cases of terrorist organizations and terrorist acts against workers of the Soviet government was made within a period of not more than 10 days, the indictment was handed over to the accused one day before the case was heard in court, the case was heard without the participation of the parties, without cassation appeal of the verdicts, petitions for pardon were not allowed, the sentence to capital punishment was carried out immediately after the sentence.
Under non-legal coercion, formal legal relations arise between the subjects exercising coercion and the innocent, at the same time relations of legal responsibility of violators of the law arise, which can subsequently be realized (the Nuremberg Trials), or may remain unrealized.
Legal is coercion carried out on the basis of legal laws, and coercion “before the law”, while not contradicting it (clause 2, article 6 of the Civil Code of the Russian Federation, clause 1.1 of article 8 of the Civil Code of the Russian Federation).
The state is not able to protect absolutely all the legal rights of participants in public relations and ensure that they fulfill all legal obligations. This dictates the need to give a certain amount of rights to legal coercion to other participants in public relations. We are talking about delegated legal coercion. It can be concluded that there is legal coercion that is not state (authorities local government, administrations of non-governmental organizations that carry out both law-making and law enforcement activities).
For a correct perception of such a sign of coercion as the removal of the will of the coerced, as well as in order to identify its other signs, it is necessary to distinguish coercion from a number of related concepts.
As noted earlier, along with coercion, there is such a method of influencing the will of a person as persuasion, which is aimed at the same result, but does not remove, but changes the will of the person, as a result of which there is no need to apply coercion to him.
When influencing a person by persuasion, the exposed person has the opportunity to choose one or another variant of his behavior; he may or may not accept the requirements of social norms, act in accordance with them or contrary to them. At the same time, the persuaded does not resist the influence exerted on him.
In the case of applying coercion to a person, his options for choosing a behavior option are significantly narrowed, since this choice is largely determined by the person exercising coercion, and that is why the author believes that the will of the coerced person is limited. According to a survey of employees of internal affairs bodies, 78% of respondents believe that at present, given the political, socio-economic situation, the level of legal awareness of the population, the method of coercion is a priority in the law enforcement activities of the state, 49% of employees who participated in the survey were in favor legislative tightening of responsibility in relation to a number of crimes and offenses.
Considering the principles of coercion, the dissertation focuses on the principles of justice, the priority of human rights and freedoms, democracy, humanism, expediency, legality, formal equality, inevitability.
For the study of coercion, the approach to the concept of law is of great importance. Having considered various concepts understanding of law, the author concludes that it is expedient to use an integrated approach, which allows, on the one hand, to single out legal and non-legal laws, and on the other hand, determines the universal validity of the law and the regime of legality. At the same time, only the state can objectify the norms of law, recognize certain social relations as legal. Giving the law enforcer the opportunity to evaluate the law and not comply with it will inevitably lead to mass arbitrariness.
In the second chapter "Implementation of measures of state coercion in the Russian Federation" the implementation of legal relations of coercion is investigated, a classification of coercive measures is given, coercive measures enshrined in the legislation of Russia are analyzed.
After analyzing the opinions of scientists, the dissertation concludes that one of the legal obligations is interpreted as the need to bear legal responsibility for failure to perform prescribed actions. These statements are controversial. The author believes that instead of a legal obligation to bear legal responsibility in a legal relationship, it is advisable to use the more precise term “duty to obey state coercion”, since, in addition to legal responsibility, subjects must undergo preventive, preventive, restorative and other coercive measures.
The legal relationship of coercion is considered as a power relationship between an individual or legal entity (organization) subjected to coercive measures and the state represented by authorized bodies, based on a normative prescription (sometimes analogous to a law) and associated with the implementation of the protective function of the state.
The author proposes to single out three types of influence of the will of the subject on the emergence of a legal relationship of coercion: 1) arising on the basis of the law at the initiative of a state body (delegated). Such a legal relationship takes place if the authority (official) has an alternative to the use of coercion or refrains from using it, or if the offender confesses; 2) arising on the basis of law on the initiative of the other party; 3) arising strictly on the basis of the law.
Within the framework of legal relations of coercion, legal relations are considered: preventive, preventive, restorative, compulsory-educational, compulsory-medical, requisition-compulsory, law enforcement and legal liability relations.
Analyzing the compulsory medical legal relations, the author expresses the opinion that one of the subjects of these legal relations is an insane person. In this case, we are not talking about an incompetent citizen, recognized as such by a court decision, but insane. In compulsory medical legal relations, the insane person becomes the subject of relations due to the complete absence of his will in the presence of two legal facts: events - the insanity of a person and a wrongful act. Initially, relations of legal responsibility arise, however, the examination and recognition by the court of the insanity of a person give rise to legal relations of a compulsory medical nature. The legal obligation to undergo medical measures for the subject arises on the basis of a law enforcement act, i.e. court rulings. The possibility of an insane person to act as a subject of coercive medical legal relations is confirmed by the adoption by the Constitutional Court of the Russian Federation of Resolution No. 13-P of November 20, 2007, which recognizes Part 3 as inconsistent with the Constitution of the Russian Federation. Art. 433 Code of Criminal Procedure, art. 437, 438, Art. 444 and a number of others, which do not allow persons in respect of whom proceedings are being carried out on the application of coercive medical measures to personally get acquainted with the materials of the criminal case, participate in the court session during its consideration, make petitions, appeal against procedural decisions taken in the case.
The legal relationship of legal responsibility is the power relationship that develops between the state and the offender, within which the application of legal responsibility is carried out. The author joins the opinion of scientists (M. D. Shindyapina, V. V. Lazarev) that the legal relationship of legal liability arises at the time of the commission of an offense and, as a general rule, terminates when the punishment imposed on the offender is implemented. It must be admitted that the relations of legal responsibility that have arisen are not always realized. So, in the case of holding persons liable for committing unlawful acts, it cannot be argued that they will actually incur legal liability, since in the processes of preliminary investigation, trial, there is a possibility of decisions to terminate proceedings or acquittal on the grounds specified in the law.
Law-enforcement relations, which are procedurally (procedurally)-compulsory in their essence, are considered as a form of realization of material relations.
When studying measures of state coercion, the author defines them as separate groups of coercive measures, united by common goals, grounds, legal consequences and the procedure for their application.
According to the nature of the impact (the type of impact on the will of the coerced), mental, physical, property and organizational coercion are distinguished.
According to the target orientation, it is generally accepted to subdivide the measures of state coercion into preventive, preventive, law-restoring, law enforcement, measures of legal responsibility.
In relation to law, the author proposes to consider legal and non-legal coercion. In turn, it seems possible to subdivide the legal one into coercion “before the law” and coercion based on the legal law. In non-legal coercion, it is advisable to single out illegal and based on non-legal law.
According to the forms of implementation, coercion is divided into those carried out in legal and non-legal forms; by mediation, law is classified into state coercion (enshrined by the rules of law applied by state bodies) and public (measures of public influence for violations of morality, traditions, and other social norms).
On the grounds of coercion, the following are considered: criminal law, administrative, disciplinary, civil law and others; in terms of content - material and procedural coercion.
For subjects that use coercion, the author identifies coercion carried out by state bodies, other subjects on the basis of the law (for example, expulsion from a political party, the application of disciplinary responsibility), delegated (for example, carried out by local governments), and for state bodies - coercion of the head of state , legislative, executive, judicial authorities, control and supervisory authorities.
The identification of the main criteria for classifying measures of state coercion made it possible to analyze those that cause discussion.
Physical coercion is the most severe means of coercion associated with limiting the physical capabilities of a person, that is, personal integrity and freedom are affected. Physical coercion has a suppressive orientation (removal from control vehicle), can be used for preventive purposes (introduction of quarantine), in order to punish the violator - administrative arrest, imprisonment for a certain period, as well as to restore the violated right - providing members of the housing cooperative with living quarters in connection with the demolition of the house.
The essence of mental coercion is the impact on the human psyche, which is carried out most often through a real threat of physical coercion.
Preventive coercive measures are certain authoritative actions of specially authorized bodies regulated by the rules of law, used in the absence of unlawful behavior to prevent possible offenses and other circumstances that pose a threat to the state and society. A distinctive feature of these measures is that they can be applied both to persons who commit offenses and to citizens (organizations) who do not allow illegal behavior. In addition, preventive coercive measures are applied regardless of age and mental health.
Preventive measures of state coercion are aimed at stopping an ongoing or ongoing illegal action (inaction) of citizens or organizations. Among the preventive measures of coercion, the possibility of taking a child away in case of a direct threat to his life or health, the use of weapons and special means to convicts who are in a correctional institution, in case of malicious disobedience.
Law-restorative measures of state coercion are aimed at compensating for the harm caused by the offense, restoring the violated legal status subject, minimizing the negative consequences of failure to fulfill the assigned duties. The possibility of blameless liability is highlighted as a distinctive feature of the measures under study. So, in the case of an offense committed by a person under the age of 16, as a result of which material damage was caused to the other party, the obligation to undergo remedial measures rests with the parents or guardians of the person who committed the unlawful act, but due to age is not the subject of liability ( article 28; 1073; 1074 of the Civil Code of the Russian Federation). Remedial measures are widely used in Russian legislation. An option for implementing such measures is restorative justice. Almost all sanctions Civil Code RFs are restorative in nature (protection of the rights of an owner who is not the owner, the obligation to return unjust enrichment, etc.). In the constitutional - the recognition of elections as invalid due to violation of the norms of the electoral law; restoration of citizenship of the Russian Federation of persons who have lost it for reasons beyond their control, etc. labor law compensation by the employer for moral damage caused to the employee; guarantees and compensations to employees in case of liquidation, reduction in the number or staff of employees of the organization, etc.
One of the goals of liability as a measure of state coercion is punitive (punitive). However, its name does not fully reflect the essence. In this regard, it is proposed to use the terms "punitive liability, penal coercion" as a replacement for the term punitive (punitive) liability, which will allow concretizing the understanding of the essence of this phenomenon. Measures of punitive coercion are widely used in Russian legislation.
This classification made it possible not only to analyze the external impact of coercive measures, but also to understand their purpose, to see the result that should come as a result of the application of these measures.
Finally the dissertation outlines the main theoretical conclusions arising from the results of the study.
The conducted research made it possible to carry out a comprehensive analysis of the essence of state coercion, to make author's proposals on the distinction between coercion into legal and non-legal. The paper proposes definitions of state-legal coercion, coercion (legal and illegal), legal relations of coercion, highlights the main features of state-legal coercion. One of the first author considers coercion within the framework of legal relations. Within the framework of legal relations of coercion, it is advisable to consider preventive, restorative, compulsory-educational, compulsory-medical, requisition-compulsory, security and legal liability relations.
The correlation of coercion with other methods of management - persuasion and coercion is analyzed, criteria for distinguishing coercion from mental coercion are proposed, the principles of coercion are considered. The author substantiates the expediency of using the term "legal obligation to comply with measures of state coercion" in legal relations, instead of the term "duty to bear legal responsibility".
A number of criteria for the classification of coercive influence are proposed and, on this basis, different kinds coercion (legal and non-legal; physical, mental, property and other; preventive, suppressive, punitive, etc.)
At the same time, the study indicates the prospects for further study of these problems, for example, a more detailed study of the types of coercive legal relations.
LITERATURE
1. Tsygankova E.A. Judicial power and state coercion // Russian judge. - Moscow, 2009. No. 10. - 0.2 p.l.
2. Tsygankova E.A. Classification of measures of state coercion according to the target orientation // Society and Law. - Krasnodar, 2009. No. 5. - 0.6 p.l.
3. Tsygankova E.A. Methods of exercising state power // Law and Education. - Moscow, 2010. No. 6. - 0.5 p.l.
Scientific publications in other editions:
4. Shevtsova (Tsygankova) E.A. Essence and signs of state coercion // Actual problems of socio-humanitarian knowledge: Collection of scientific articles. - Issue. XV. Part 4. - Moscow, 2006. - 0.5 pp.
5. Shevtsova (Tsygankova) E.A. Coercion in the system of administrative and legal regulation of public relations. // Prospects for the development of science and society at the beginning of the III millennium: Proceedings of the scientific and practical conference. - Stavropol, 2006. -0.3 p.s.
6. Shevtsova (Tsygankova) E.A. The ratio of state and public authorities // Actual problems of socio-humanitarian knowledge: Collection of scientific articles. - Issue. XV. Part 4. - Moscow, 2006. - 0.6 p.l.
7. Shevtsova (Tsygankova) E.A. Constitutional responsibility in the institute of constitutional and legal enforcement // Trends in the development of Russian legal science: current experience and real prospects: Collection of materials of the 52nd scientific and methodological conference. - Stavropol, 2007. - 0.3 p.l.
8. Shevtsova (Tsygankova) E.A. The nature of constitutional and legal coercion // Actual problems and factors for improving the system of state and municipal government modern Russia: Collection of articles by young scientists of the All-Russian scientific-practical conference. - Rostov-n / D., 2007. - 0.3 p.l.
9. Tsygankova E.A. Legal principles of state coercion // Law and modernity: Collection of scientific and practical articles. - Issue. 3. Part 1. - Saratov, 2008. - 0.3 p.l.
10. Tsygankova E.A. Classification of coercive measures by the type of impact on the will of the coerced // Russian civilization: past, present and future: Collection of scientific papers of the II Interregional Scientific and Practical Conference. - Part 1. - M., - Stavropol, 2009. - 0.4 p.l.
11. Tsygankova E.A. State coercion as a mechanism for the implementation of the rule of law // Actual problems and prospects of modern humanitarian knowledge: International scientific and practical conference. - Nevinnomyssk, 2009. - 0.4 p.l.
12. Tsygankova E.A. Correlation of coercion with other related categories // Scientific works of lawyers of the North Caucasus region: Collection of scientific articles. - Krasnodar, 2009. - 0.5 p.
13. Tsygankova E.A. The essence of mental and physical coercion // Man. Society. Education: International scientific and practical conference. - Sibay, 2010. - 0.3 pp.
14. Tsygankova E.A. The exercise of state power: to convince or to force? // Socio-humanitarian Bulletin of the South of Russia. - Krasnodar, 2010. - 0.3 p.l.
15. Tsygankova E.A. Suppression in the system of measures of state coercion // Problems of the theory and practice of ensuring public security in the North Caucasian Federal District: Collection of scientific and practical conference. - Stavropol, 2010. - 0.2 p.l.
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The necessity of independent criminalization of coercion in order to force another person to commit a crime is assessed, taking into account the provisions of the General Part of the Criminal Code of the Russian Federation on incitement.
In the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code), coercion is used in many ways. Firstly, as a circumstance excluding the criminality of the act (Article 40 of the Criminal Code). Secondly, to determine the essence of punishment (part 1 of article 43 of the Criminal Code). Thirdly, as a circumstance that aggravates or mitigates punishment (paragraph “e” of part 1 of article 61, paragraph “k” of part 1 of article 63 of the Criminal Code). Fourthly, as an independent criminal act (articles 120, 141, 142, 147, 149, 179, 184, 185 5 , 240, 302, 309 and 333 of the Criminal Code). Fifthly, as a way to implement another act (Articles 144 and 283 1 of the Criminal Code).
In addition to all of the above, coercion can be used as a way to involve a person in the commission of a crime. Such a function within the framework of the institution of complicity is characteristic of an instigator. However, the indication of coercion in Part 4 of Art. 33 of the Criminal Code is missing. You can refer to the openness of the list in this norm, but you should pay attention to the fact that it refers to alternative ways declination. Thus, the question arises whether coercion can be considered a method of inclination.
Let's turn to dictionaries. To persuade means to convince, to persuade; constantly mention, make the subject of discussion, conversation. Persuasion is “to make believe something, to assure something”. Synonyms play an important role in compiling the overall picture. For declension, among others, the following are given: pushing, prompting, cajoling, persuading, stimulating. Coercion, in turn, is defined through violence, the use of force, punishment, pressure, coercion, blackmail, pressure, diktat, coercion, obligation, etc. . It manifests itself through a demand, an order, a threat, physical or strong moral punishment, and other ways. S.I. Ozhegov gave the following definition: “coercion - FORCE, you already, you fish; destined (yon, ena); owls., whom (what) to what and with neopr. Force to do something.” . Thus, from the position of the Russian language, coercion and inclination have a different nature.
Now let's turn to the articles of the Special Part of the Criminal Code, where coercion is mentioned. For example, in Art. 184 of the Criminal Code, the latter is used as an alternative action in relation to declension. Also, there is no subordination of the concepts under consideration in Art. 205 1, 282 1 and 282 2 of the Criminal Code, where coercion is part of "other involvement" .
In the literature, there is an opinion that “coercion (both physical and mental) fully falls under the signs of a threat or other method”, respectively, can be considered as incitement. However, this statement is erroneous in terms of defining the main and dependent concepts - the threat is a kind of coercion, and not vice versa. Proving this is easy enough. First, if coercion is recognized as a specific concept in relation to the threat, then in this case all the methods of the former must also be related to the threat. Obviously, with regard to violence, restriction of freedom, use of a dependent position, etc. such a conclusion cannot be drawn. Secondly, for example, in Part 1 of Art. 302 of the Criminal Code, the legislator uses the wording "coercion through threats." Thus, here the latter acts as a method of coercion, which, accordingly, excludes the possibility of considering it as one of the methods of inclination.
Of course, within the framework of the aforementioned Art. 184 and 302 of the Criminal Code, coercion does not lead to the commission of a crime, but this does not prevent the consideration of the norms enshrined in them for the correlation of the commented concepts.
Coercion as a kind of involvement of a person in criminal activity can be expressed in the form of physical or mental violence, blackmail, threats, use of material or official dependence of a person, etc. The difference between coercion and inclination is that in the first case, a person commits a crime, fearing the onset of adverse consequences on the part of the coercive for refusing what is required. In other words, when incited, the instigated acts voluntarily, when coerced, while maintaining the ability of the coerced person to control his actions (inaction) - not voluntarily, but in cases provided for in Art. 40 of the Criminal Code, - limply. Thus, if coercion is not a method of inducement, the question arises what place should be assigned to it within the framework of the institution of complicity.
Possible options may be to replace incitement with involvement or the introduction of coercion as an independent type of complicity along with existing ones. However, such decisions will only further complicate the institution of complicity. Legal technique legislator in the formulation of criminal law, of course, requires improvement. However, when proposing certain changes, it is also necessary to evaluate them practical significance.
In this regard, the best option seems to be the addition of Part 4 of Art. 33 of the Criminal Code indicating coercion along with inclination. The disadvantage of this approach is the inconsistency key concept elements included in it. Incitement is understood as "an incitement to something, an instigation to a crime." To incite means to incite, to incite, to incite, to set up, to incite, to incite, to start, etc. . All of the above is closer to declination. However, such a measure will allow us to preserve the traditional and well-established term "instigator", while streamlining its content as much as possible. Moreover, examples of recognizing coercion as a form of incitement can be found in jurisprudence.
Thus, Part 4 of Art. 33 of the Criminal Code is proposed to be worded as follows: "An instigator is a person who has involved another person by inducing or coercion into committing a crime."
The recognition of coercion as a method of incitement raises the question of the advisability of an independent criminal law assessment of this action, which is reflected in Art. 283 1, 309 and 333 of the Criminal Code.
Let us compare the sanctions for incitement in the form of coercion in the above articles with the sanctions of the norms, which reflect the crimes committed as a result of the impact. For the disclosure of state secrets (part 1 of article 283 of the Criminal Code), the most severe punishment is 4 years in prison, which is identical to the responsibility for obtaining such information under part 1 of art. 283 1 of the Criminal Code. The same coincidence is observed in the sanctions of the first parts of Art. 307, 308 and 309 of the Criminal Code - up to three months of arrest. The result of coercion of the chief to violate the duties of military service (Article 333 of the Criminal Code) may be the commission of any crime under Chapter. 33 of the Criminal Code. In view of the large number of articles included in it, we first of all pay attention to their categorization (of simple compositions). So, out of twenty crimes, three are serious (Articles 338, 351 and 352 of the Criminal Code), three (Articles 334, 340 and 345 of the Criminal Code) are of medium gravity, and the remaining fourteen are minor. Coercion under Part 1 of Art. 333 of the Criminal Code, in turn, is considered as a crime of medium gravity. Thus, the independent criminalization of incitement in relation to the first group is meaningless, since it underestimates the responsibility of the coercive. The maximum limit for most crimes from the last group is two years in prison. Accordingly, the sentencing of the instigator within 5 years of imprisonment, compared with two years for the perpetrator in the main composition, is clearly not compatible with the principle enshrined in Art. 6 of the Criminal Code.
Here, however, one can refer to the desire of the legislator to ensure increased protection of relations that are the object of Art. 283, 307, 308 and provided for by Ch. 33 of the Criminal Code (namely, Articles 334, 338 and 340 of the Criminal Code, as crimes of medium gravity), if there is an unfinished stage of the crime. However, according to the materials judicial practice under these articles, not a single person was prosecuted at the stage of the attempt. Accordingly, the law enforcer does not need the tool proposed by the legislator in terms of the self-responsibility of the coercive. Thus, the criminalization of such actions in the Special Part of the Criminal Code is unnecessary.
Sources:
- See: Michelson's Big Explanatory Phraseological Dictionary (original spelling) // Dictionaries and Encyclopedias at Academician. URL: http://dic.academic.ru/dic.nsf/michelson_old/8487 . (Date of access: 09/28/2015).
- Cm.: Dictionary S.I. Ozhegova // Ibid. : http://dic.academic.ru/dic.nsf/ogegova/221014 . (Accessed: 08/30/2015).
- Explanatory Dictionary D.N. Ushakova // Ibid. URL:
Public administration methods are understood as methods (techniques) of influence of the subject of management on the object of management, which are used to achieve the goals and objectives of management, to implement management functions. Methods provide an answer to the question of how, in what way, the most rational way to achieve management goals.
Management methods are in unity with management goals. The goal determines the specifics of the use of methods, the choice of methods to a certain extent determines the reality of achieving the goals. But, on the other hand, methods show how management goals are achieved. They define the quality side of management. Improving them means improving management.
Management methods have the following characteristic features:
They express the relationship of the subject of control with the object of control,
A method is a means, a way of implementing the control action of the control subject on the control object;
Methods are ways of streamlining, organizing processes occurring in control systems, techniques by which common goals joint activities of people;
Control methods are a mobile and active element in the control system;
The use of methods is alternative;
In public administration, they are an instrument of state policy, which is used by the state apparatus to achieve political goals.
Regardless of the content and direction, management methods have:
objective organizational form, which is understood as the type of impact, i.e. individual prescription (order, order, etc.) or norm (rule) of behavior;
The nature of the impact (direct impact, indirect impact through the creation of stimulating or restrictive conditions);
Method of influence (single, collective, collegial);
Time characteristic (short-term and long-term);
Tactical and strategic in nature.
The essence of management methods in the state is determined by its social nature. The subjects of public administration apply methods of influence in order to implement the tasks and functions of the state, society to solve economic, social, defense, law enforcement and other tasks.
Speaking about the methods of public administration, we should recall the definition of governance in general. Any control is an organizing purposeful influence of the controlling party on the controlled one. Therefore, every management relationship must pursue some goal. However, achieving the same goal is possible in different ways. Let us consider in what ways it is possible for the managing party to achieve the goal of management in public administration.
The method of public administration is a set of ways and means of influence by which the managing party achieves the goal of management in the process of relations with the controlled party.
In the legal literature, there are various classifications of public administration methods.
Depending on who this or that managerial influence is addressed to, there are methods of managerial activity:
Aimed at the organization of the administrative apparatus;
Expressed in the implementation of the impact on external objects.
By the nature of the impact, public administration methods are subdivided:
For administrative;
Economic;
Socio-psychological.
Administrative methods are understood as the direct influence of the managing party on the behavior of the managed parties. This is a method of direct and unilateral legally authoritative instructions of state administration bodies. Failure to comply with these instructions entails the onset of appropriate legal liability.
Administrative methods, in turn, are divided according to the form of expression into administrative-legal and administrative-organizational; by legal properties - into normative and individual; according to the method of influence - on binding, empowering and encouraging; according to the form of prescription - into categorical, surety and recommendatory.
Economic methods are understood as the use of indirect methods and means of influencing the interests of the controlled parties of relations, stimulating their material interest in fulfilling their tasks.
The direct means of expressing economic methods of management can be: the distribution of profits, financial incentive, property benefits and credit, appropriate taxation, the threat of material sanctions or material damage, etc.
Closely related to economic methods is this method. state influence on the state and behavior of the controlled party, as state regulation. This method consists mainly in the creation of legal mechanisms that regulate the relations and behavior of subjects of administrative law and allow the controlled party to independently navigate in the field of their activities. The regulatory legal mechanism in these cases only creates conditions that stimulate (most often by economic methods) the behavior of the controlled side of administrative-legal relations that is necessary for the managing party.
At the same time, state regulation can also be implemented by issuing individual legal acts of management in relation to certain subjects of state administration. They, in turn, by fulfilling these legal acts of management, create conditions that stimulate the behavior of a third party that is not directly involved in management relations, which is necessary for the managing party. Thus, there is no direct managerial impact of the managing party on the managed third party, while the management goal is achieved.
Socio-psychological methods of management consist in influencing the controlled parties, taking into account the peculiarities of their psychology, and are manifested in the system of relations "leader-team". They can be characterized as a way of psychological influence on a controlled group of people by managers to achieve certain managerial goals.
Socio-psychological methods are divided into sociological (methods of managing social-mass processes, teams and individual-personal behavior) and psychological (methods professional selection workers according to psychological characteristics, "acquisition of small groups and teams based on the psychological compatibility of workers, as well as methods of humanization of labor and psychological motivation).
In the legal literature, there is also a classification of public administration methods according to the functions of management subjects. On this basis, the methods of public administration are divided into:
On the general methods used at all the most important stages of the management process (the method of persuasion, observation, control and development, methods of indirect and direct influence on the managed object, regulation, general management and direct management);
Special methods used in the implementation of individual functions at the stages of the management process (methods for performing individual functions, developing and making decisions, program-target method, overt and covert methods).
In addition, the already mentioned classification of methods of direct and indirect influence of the controlling party on the will of the controlled party, as well as legal and non-legal methods of public administration, is highlighted.
However, for us the most interesting is the basic classification of public administration methods. In accordance with it, there are two basic types of public administration methods: persuasion, which is most often based on manipulating the mechanisms of consciousness and behavior of citizens, and coercion, which is generally based on the use of force, and sometimes extreme forms of violence. These two "ideal types" form a two-pole scale "coercion - persuasion", on which all intermediate shades of the use of tools to guide people by the state administration are located. Based on these types, a lot of combinations of various techniques and methods in public administration are possible.
At the same time, a clear distinction between methods of public administration into persuasion and coercion is important. practical value(especially in the daily activities of the relevant officials authorized to apply measures of administrative coercion).
In the above classifications of public administration methods, the term “public administration” is used as a system (which was discussed when considering the issue of forms of public administration).
When studying the methods of persuasion and coercion in public administration, given the great practical significance of the issue, it seems appropriate to use the definition of public administration as a type of subordinate, executive and administrative activity of a specially authorized subject (government body).
The designation of the bipolar scale "persuasion - coercion" is indicative for revealing the essence of the functioning of the mechanism of state administration, but it is hardly sufficient for a clear distinction between the method of persuasion and the method of coercion.
Unfortunately, the descriptions of these methods that are most often found in the legal literature do not indicate such a clear boundary.
So, it is generally recognized that the method of persuasion is an impact on the consciousness and behavior of people, manifested in a wide range of educational, explanatory, organizational, and incentive measures in order to ensure the legitimacy of their behavior.
The method of persuasion should be the main method of activity of government bodies, which involves systematic work to convince the masses of the need for proper behavior of participants in managerial social relations, their strict observance of the rules established by the state. An explanation of the goals of the state, draft laws, government programs, events carried out by the authorities, etc. is necessary because they affect the interests of the majority of citizens and should be clear to them. Persuasion also acts as a means of preventing offenses and strengthening state discipline.
Persuasion is a process of consistently carried out actions, which includes the following elements: mastering attention, suggestion, influencing consciousness, inciting interest, arousing desire, etc.
There are various forms of persuasion: training, legal propaganda, agitation, clarification, exchange of experience, timely response to appeals, personal example, moral and material incentives, etc.
The second method of public administration is the method of coercion. It is mainly applied to those people who evade compliance with the requirements of law and discipline, violate established legal norms, rules of conduct. In rare cases, coercion may be applied not in connection with the unlawful behavior of any subject of law, but in connection with a state necessity. Coercion, as a rule, is used when persuasion measures do not give the desired result.
The method of coercion is a mental, physical or material impact on the consciousness and behavior of people who voluntarily do not want to comply with the established norms of behavior, in order to force them to proper behavior by applying special measures.
Administrative coercion is an auxiliary method of public administration, combined with persuasion and is used in cases where persuasion is not enough to achieve the goal set for the public administration body (its official).
The purpose of administrative coercion is to force specific subjects of law to comply with certain requirements or to refrain from certain actions.
Being a kind of state coercion, administrative coercion is used mainly as an extreme means of ensuring and protecting law and order in the sphere of public administration, that is, it performs a punitive function. However, its significance is not limited to this. At the same time, measures of administrative coercion perform other functions, that is, they are used not only as a punishment for offenses, but also for their prevention and suppression.
It should also be noted that the method of coercion is always expressed in a direct impact on the will of the controlled side. The method of persuasion is most often manifested in an indirect impact on the will of the controlled party. However, in some cases it can also be expressed in a direct impact on the controlled party (for example, encouragement).
However, there is no clear line between coercion and persuasion.
It should be recognized that any managerial influence of the managing party on the managed one compels something. At the same time, not any coercion should be attributed to the method of coercion in public administration.
Unlike the method of persuasion, the method of coercion (as an extreme means of achieving the goal of management) is regulated by regulatory legal acts in more detail. Therefore, a method of management that does not fall under the definition of a method of coercion will be a method of persuasion.
The features of administrative coercion as a method of public administration will be considered in detail in the corresponding chapter. Now we are interested in the main distinguishing feature of the named method.
Basic distinctive feature method of coercion is the fact that in the process of its application in without fail the rights, freedoms, legitimate interests of those subjects of law in respect of which coercion is applied are infringed.
As noted, coercion can be expressed only in the special measures of mental, physical or material impact provided for by regulatory legal acts.
| Parameter name | Meaning |
| Article subject: | Coercion method |
| Rubric (thematic category) | State |
Reward method
03.12.2012
Classification of public administration methods
Correlation between method and form of public administration
They are in relationship.
The method is one of the most important elements of the content of public administration. Ways how it is done, how government agencies influence.
Forms are a means of external expression of its content, i.e. Methods.
Method - coercion (reprimand, arrest) should be in the form of a management protocol, then a court decision, reprimand - an order for monetary recovery, encouragement - rewards.
Taking into account the dependence of generality:
Belief. a system of methods of moral influence on the part of the executive authorities on the consciousness, will, and behavior of people. Manifested in the use of various explanatory, educational, organizational measures (seminars, conferences, press conferences), main entity to contribute to the formation of a correct conscious attitude towards the activities of the state in the individual, to create internal moral incentives for the implementation and the need for the implementation of laws.
promotion
Compulsion
A means of stimulating the will to influence the consciousness and behavior of people through the interests of needs, directing their behavior to take actions, achieve goals and objectives set by the state and executive authorities, unlike persuasion, encouragement is stimulating.
Promotion:
Moral
Material
It is used in Granda science, health care, sports, culture, education.
Administrative coercion is a special type of state coercion, which has the purpose of protecting public order and social relations that arise in the field of public administration. External state legal mental and physical impact on the consciousness of the will and behavior of people, expressed in the form of restrictions or deprivations of a personal organizational or property nature, that is, of certain adverse consequences.
Peculiarities:
All measures of administrative coercion are characterized by state coercive character.
Applied on the basis of administrative law
Administrative coercion is used to protect legal relations regulated both by the norms of administrative law and other branches of law.
The basis and procedure for the application of measures of administrative coercion is strictly regulated by law.
Administrative coercion is characterized by a plurality of subjects of its application. Both courts and executive bodies and specially created commissions. Οʜᴎ apply to persons not subordinate to the relevant authorities and officials.
The order of implementation In the order of administrative proceedings regulated by the current legislation
Administrative coercion is of great preventive importance, since the enshrining in the law of the relevant ones contributes to the fact that many citizens refrain from illegal actions under the threat of administrative punishment.
Classification of measures of administrative coercion:
Reason: goals, methods and reasons for their application.
Administrative preventive measures are a preventive focus, their basis is the onset of special ones, both related and unrelated to human actions. Checking documents, personal search, inspection of vehicles.
Measures of administrative restraint - are implemented to suppress the committed offense, in other objectively illegal actions of illegal states and events. Delivery of a person, administrative detention, seizure of the instruments of this violation.
Measures of administrative responsibility and punishment, measures of responsibility are enshrined in the Code of Administrative Offenses, confiscation of the instrument of committing or the subject of an administrative offense, deprivation of a special right, administrative arrest, the basis is the commission of an administrative offense.
Coercion method - concept and types. Classification and features of the category "Coercion method" 2017, 2018.