Ïðàâî/ 4.Òðóäîâîå ïðàâî, è ïðàâî
ñîöèàëüíîãî îáåñïå÷åíèÿ.
Suleimenova S. - doctor of law, professor
Askarova A. – doctor PhD
Kirbasova Z. - student of the 2 year master degree
Kazakh National University named by al-Farabi
Problems connected to the law position of judge of the category of civil
servant Republic of Kazakhstan
In
accordance with Article 75 of the Constitution of the Republic of Kazakhstan
[1] and Article 3 of the Constitutional Law "On the Judicial System and Status
of Judges of the Republic of Kazakhstan" the judiciary consists of the
Supreme Court of the Republic and local courts, which is a system of state
bodies with specific functions and tasks whose implementation depends on the
appropriate legal status of judges and their professional competence [2] .
Part
1 of Article 23 of the Constitutional Law "On the Judicial System and
Status of Judges of the Republic of Kazakhstan" states that the legal
status of judges is determined by the Constitution of the Republic of
Kazakhstan, this Constitutional Law and other laws.
This
formulation raises a number of controversial issues, in particular regarding
the fitness of office of a judge to the category of civil servant. This
question is to some extent due to the fact that the earlier acting Act "On
State Service" dated July 23, 1999[3] judges were classified as civil
servants while the current legislative act regulating direct questions of
public service to those judges not determine.
There
are different points of view on the possibility or impossibility,
appropriateness or lack thereof assignment of judges to the category of civil
servants and legal implications of this [4]. The relevance of the study of the
legal status of judges, as civil servants, due to the fact that currently there
is an intensive review of many of the pre-existing notions about the nature of
public service, its subjects, organizational, legal and practical
implementation of the design. The significance of the problem under discussion
primarily associated with the need to determine the proper regulation of the
industry concerning the legal status of judges.
Institute of Civil Service includes legal rules that
establish: the formation of public-service relationship; public offices, which
occupy employees, carried out on behalf of the state (and also on behalf of
local authorities) its function; principles of service; the legal status of
civil servant; Military Service; termination of public-official authority [5].
Current legislation stipulates that the judge is a person appointed or elected
in accordance with the law as a judge working in the appropriate court and to
fulfill their obligations in a professional manner. Chairman of the judges are
permanent judges of the Supreme Court, provincial and equivalent courts,
district and equivalent courts; chairmen of the boards of the Supreme Court,
provincial and equivalent courts. Given that the judiciary is one of the
branches of government, the judge is its carrier and has one of the state
functions.
The legal status of judges, as well as any
public servant, primarily due to its public and legal nature. Both activities
are regulated by specific legislation defining the basic elements of all of
these institutions.
The concept of service in Kazakhstan's legislation is
not yet reached. Appeal to linguistics does not clarify the situation. The
dictionary defines the term "serve": how to do something, for someone
of something, doing someone's will, orders, work in favor of something [6].
In
jurisprudence to study this issue in theoretical terms refers primarily
scientists administrative considering, as a whole, as a service such socially
meaningful activities that express a direct relationship with a specific
person, it aims to use and with his knowledge [7]. The most profound questions
about the concept of public service studied V.M. Manokhina. It displays the
following definition: public service is a professional activity of certain
contingent of people - employees - on the organization of the execution and implementation
of the powers of state, public and other social structures [8]. The author
reasonably believes that the concept, the main features, objectives and
functions of public service can be defined; only revealing the relationship and
interdependence of public service tasks, functions and forms of state [9, p.5].
This finding is consistent with another definition of public service, by which
is meant labor activities carried out in a professional manner civil servants
in order to perform the tasks and functions of the state [10, p. 123].
The
specific nature of the relationship developing between the state and the judges
(these relations can be called a public-service), lies in the fact that the
state not only gives the judge the right to act on his behalf, but also
establishes the possibility to apply specific, statutory measures of state
coercion. Based on the foregoing, it can be determined that the judicial
service is carried out on behalf of the state court activity for the
implementation of the judiciary in reviewing and resolving cases and disputes
of law and fact. The court, considering on behalf of the State implements the
will and interests of the state, as reflected in the legislation. In exercising
its power of justice, in order to implement the tasks assigned to them under
Part 2 of Article 1 of the Constitutional Law "On the Judicial System and
Status of Judges of the Republic of Kazakhstan", the court applies the
statutory enforcement action against violators of the law, as well as restore
the violated rights . Article 4 of the
Act "On State Service" provided that, in exceptional cases, the
Constitution of the Republic of Kazakhstan, constitutional laws and other
legislative acts of the Republic of Kazakhstan for civil servants can be
defined different legal status. This rule allows, in our view, be considered
Constitutional Law "On the Judicial System and Status of Judges of the
Republic of Kazakhstan" as an independent source of law governing, in
particular, the legal status of judges as civil servants and judicial
activities as a kind of public service. Analysis of the Law of the
Republic of Kazakhstan "On Public Service" and the Constitutional Law
"On the Judicial System and Status of Judges of the Republic of Kazakhstan"
allows us to conclude that the legal status of judges and their work in all
cases covered by the term "civil servant" and "public
service" in its broadest sense. It seems that the judges in its status
(its main constituent elements of "ideology") cannot be different
from the civil servants, as in terms of their legal status (rights, duties,
responsibilities, scope of authority, the order is entered into, termination of
service relations and etc.) are essentially equal to its contents, with some
exceptions caused by the fact that the judges there are special laws and
regulations that define the specifics of their legal status and competence.
Judicial activities, as well as everything related to the public service, as a
rule, include within the scope of administrative law. However, the failure of
such a conclusion, first of all, confirmed by analysis of the fundamental
differences subject to regulation under consideration branches of law. On the
subject of legal regulation as a fundamental criterion of differentiation of
administrative and labor law refers not only to scientists - "Labors"
[11], but also "Administrativists" [12]. Based on the conventional
view in the theory of administrative law are the subjects of recent public
relations arising on the executive and administrative activities of public
authorities [7, p.5].
It
should be noted that direct absolute administrative and legal approach to the
service relationship is less common. Authors often make judgments about the
various options the compilation of administrative and labor law. However, many
representatives of the science of administrative law insist on the formation of
a special branch of the law - the law of the service, but the question of the
field of law remains an open question, but the idea emerges service law [13].
For example, V.M. Manohin, considered about the event in the process of
performance management among its members several types of relations defines the
following: firstly, between the person performing official duties (employees),
and the other person (subject to impact), which are official; secondly, between
the employees and other state-holders at the place of his life - with
accounting, human resources and other structures carried over labor, is - the
employment relationship [14]. In this case, the scientist believes that in an
effort to include all service relations in the sphere of labor relations only a
contradiction of the Constitution and that such proposals are aimed,
ultimately, the elimination of administrative law as an industry [15]. Some authors,
not agreeing with this position, believe that this interpretation is seen in an
attempt to dismember the social relations that are the subject of legal
regulation in the nucleus and associated relationships similar to the
allocation in the labor law and labor relations in the direct social
organization of labor and its derivatives relations. However, the labor law
includes the object of his control and those and others, while the V.M.
Manohina tries to distribute those to different areas of the law that can
hardly be considered justified [16]. We believe that in determining the
industry sector relations on the labor judges cannot be assumed as an absolute
administrative law and labor approach. The distinction between the regulation
of relations in the service between labor and administrative law are subject to
employee participation internal or external relations.
So, at one time A.E.
Pasherstnik consider the entire public service as an institution of labor law,
noting the need for a complicated actual composition, additional conditions for
the emergence or final consolidation of labor relations of public service [17].
However, he believed that public servants as subjects of administrative law are
the only administrative relations with the external environment. The same
position and began to adhere to other authors, specializing in labor law.
In
general, the approach based on the delimitation of spheres of legal regulation
of the service relationship with the division into internal and external
undoubtedly plays a positive role in determining the industry classification of
legal rules governing social relations in the public service. Here, we can
agree with some authors that employee participation in internal and external
relations to some extent dependent on the amount of power to his position [11,
p.24]. Indeed, if we consider the work of an employee with extensive
administrative powers, it was mostly their implementation will occur in
external relations, through the provision of administrative influence on the
external actors. Employees, the amount of regulatory powers which are not so
significant, mainly act as a subject service relationship. However, experts in
the field of administrative law accentuate the work of civil servants only as expressing
the will of the state and its representative bodies. However, considering the
rights and obligations of civil servants in general as a basis for their
administrative legal status and stating changes in legislation, different
authors have different opinions spot institute of public service in the legal
system. So, A.P.Alehin, A.A.Karmolitsky and Y.M.Kozlov emphasize decisive
influence administrative and legal regulation in relation to "the public
service, which manifests itself in any possible occurrence of reasons for
action norms other industries" [18]. Following the logic of these authors,
the relationship regarding the implementation of judicial powers also needs to
consider the administrative and legal relations. However, it appears that the
rights and duties of judges are not only part of their general legal,
administrative and legal status, but also to determine their position in the
field of labor law, and thus make their labor status. This follows from the
argument that the judge's relationship with the government on the
implementation of the labor (service) activities cannot be fully controlled
only by administrative law.
It should be
recognized fair view S.A. Ivanova, considers it necessary to carry out the
difference between the tasks and functions of the state and employed to meet
these challenges and carry out these functions. Renowned scientist believes
that "service to the state - is inherently labor activities carried out on
the basis of employment where the employee is a civil servant and employer
public body" [19]. It seems that expressed S.A.Ivanova judgment can no
conventions extrapolated to the scope of a judge, where the figure of the
employer is the state, with their employers' vesting powers of various
government agencies and officials (President of the Republic of Kazakhstan, the
Supreme Judicial Council, the Court jury in a disciplinary matter, and
others.).
We
cannot agree with the judgment V.M. Manokhina that the subject of labor law is
only limited relations with the workers [7, p.10]. Another N. Alexandrov, who
has spearheaded the definition of a circle of relations regulated by the
industry, pointed out that one of the types of socialist labor relations are
worker-service relationship [20]. At the present stage of science labor law
opinion on the inclusion relations with employees in the employment
relationship is predominant. This conclusion can confirm the absence of labor
legislation in Kazakhstan division of workers to workers and employees and
employee understanding of the word just a physical person who is employed by
the employer and directly performing work under an employment contract.
Considering the above issues related to the judicial work of the public
service, we noted that the problem primarily arises from the need to determine
the correct regulation of the industry, the definition of industry
classification rules governing the judge.
In
our view, express our solidarity with the existing opinion that the difference
in the nature of work of these categories of workers can only be a basis for
differentiation of rules governing their employment and related to labor
relations within the boundaries of labor law, but do not release these
standards beyond [ 21].
References:
1. Constitution of the Republic of Kazakhstan – Almaty, Kazakhstan, 1998. 96 p.
2.Konstitutsional law of the Republic of Kazakhstan dated December 25, 2000 ¹
132-II On the Judicial System and Status of Judges of the Republic of
Kazakhstan
3. Act of the Republic of Kazakhstan "On State Service" on July 23,
1999 ¹2730.
4. Legal problems of civil service
reform sovereign Kazakhstan: Monograph / team of authors. -Astana: Institute of
Legislation of the Republic of Kazakhstan, 2003, p. 222; Dzhalmuhanbetov K. The
special status of the third power. Judges can not be equated with civil
servants // "Legal Newspaper" on May 15, 2002, N 19.
5. Starilov Y.N. Institute of public service content and structure // State and
law. 1996. ¹ 5 .p. 15.
6. Ozhegov S.S. Russian dictionary.
M.: Russian Language, 1989. p. 730.
7. Manohin V.M. Need basic legislation on service // State and
law.1997.¹9.p.7-8;
8. Manohin V.M. Service and employees in the Russian Federation. M. Lawyer,
1997.p.9
9. Manohin V.M. The Soviet government service. M .: Legal Literature, 1966.p.5.
10. The Soviet administrative law. M., 1985.p.123.
11. Syrovatskii LA Labor and Employment Law. M., 1995.p.24-25.
12. Soviet labor law / Ed. A.E.Luneva.M., 1960.p.31; Manohin V.M. Need basic
legislation on service // State and law.1997.¹9.p.7-8. Manohin V.M. Need basic
legislation on service // State and law.1997.¹9.p.9.
13. Starilov Y.N. Service law. M .: Publisher Beck, 1996-p.2-19; Gabrichidze
B.N., Chernyavskii A.G. Service law: Textbook for law. M .: Publishing and
Trading Corporation "Dashkov", 2003, p.7,38-47.
14. Manohin V.M. Legal regulation of
the Soviet public service // the Soviet state and the right. 1968.¹1.p.34.
15. Manohin V.M. The constitutional
foundations of the civil service legislation // Pravovedenie.1983. ¹4.p.116.
16. Fedyaev D.A, Moskalev A.V. Labor
law and municipal service in Russia. -Perm Univ Perm.un-one 2001.p.22-23
17. Pasherstnik A.E. On the question
of the Soviet public service // Questions of Soviet administrative law. M.,
1949.p. 127-128).
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Russian Federation. M., 1996.p.181-189.
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20. Alexandrov N.G Labor relations. M., Yurizdat, 1948.p.136,231,255,283.
21. Nesterov T.A., Fadeev L.A. Russian labor law and service in the
prosecutor's office. -Perm ,; Publ Perm.un-one 2001.p.113.