The principles of state and municipal control and the mechanisms of its work have various formats and ways to check business, enshrined in the relevant federal law. The 2020 edition reduced their number from ten to eight, and current practice shows that the law requires serious additions. Dmitry Fesko, PhD in Law, Partтук, Chairman of the Supervisory Board (Council of Partners) and Head of Investment and Tax Law Practice at Alliance Legal CG, explains what expert proposals should be taken into consideration and how additional principles will work to improve the efficiency of control and supervisory activities.
Imperfection of existing practice
- act as protective mechanisms for business and citizens;
- must guarantee the rights of the objects of control, but do not always perform their function;
- the punitive orientation of inspections remains a frequent practice in the interaction between the state and business;
- statistics show that the existing principles may not be enough to protect the business.
In my opinion, in the current version of the Federal Law Now Federal Law No. 248-FZ “On State Control (Supervision) and Municipal Control in the Russian Federation” dated July 31, 2020, there are no fundamental theses that can give state control such necessary characteristics: legality, validity, fairness and civilization, certainly necessary in modern communication between the state and business.
First of all, we need:
- effective suppression or prevention of violations by inspection bodies;
- the effectiveness and efficiency of control and supervision - should be carried out only when other forms of control are ineffective, and as a result of the inspections performed, violations of any state requirements have been identified;
- the principle of inadmissibility of multiple state control and supervision - the innovation helps to reduce the administrative burden of business;
- the norm-principle of the presumption of good faith of controlled persons, which, in fact, previously obliged the official in the process of implementing supervision measures to prove the existence of a violation before issuing an order to the business;
- the principle of responsibility of control (supervisory) bodies for violations of the rights of controlled persons.
These theses are described in detail in my scientific article “Principles of State Control: Novelties and Gaps” in the collection “Actual Issues of Control and Supervision in Socially Significant Spheres of Society and State Activity”*.
What opportunities it will give to business:
- greater openness of information of control and supervisory authorities;
- the absence of duplicating functions and redundant checks, along with the guarantee of business rights and the presumption of good faith, would allow businesses to count on the protection and observance of their rights during control and supervisory activities;
- the effectiveness of communication between the state and business in an area that must be not punitive, but preventive of violations.
* The article was prepared on the basis of the publication in the collection of materials of the VII All-Russian Scientific and Practical Conference dedicated to the 300th anniversary of the formation of the Prosecutor's Office of Russia (Russia, Nizhny Novgorod, June 2-3, 2022) "Actual issues of control and supervision in socially significant areas of activity of society and the state ".