Ph D in Law Lyalyuk A.Y., Salivon G.

The National Law Academy of Ukraine named after Yaroslav the Wise

Directions of improvement of the legislation on local self-government in Ukraine

Different processes which occur in Ukraine predetermine necessity of reforming of many basic public institutions, including systems of local self-governments. Despite enacting of a significant amount of legal acts which regulate activity of bodies and officials of territorial communities, it is necessary to state, that in them the nature, interests and needs of local self-government are not considered enough.

The reforms carried out in Ukraine were accompanied by deepening of processes of keeping the person separate from the power, decrease of authority of bodies of public power and trust of the population in state power, separation of public, political and economic interests in the Ukrainian society. Shortcomings of the current legislation generate numerous conflicts between different levels of the power both on a horizontal and a vertical level; bring additional pressure in relations between bodies of executive power and bodies of local self-government.

The present state of the legislation which regulates relations in local self-government sphere is characterized by lack of system, competing norms are common, collisions and other negative sides of lawmaking often arise. In the course of lawmaking less and less attention is paid to the legal principles, and first of all it concerns the constitutional principles; peculiarities of local self-government are often not considered. Lack of system character and discrepancy of regulatory legal acts is a serious obstacle of the further development of institutes of a civil society. Besides, the constitutional norms related to local self-government do not receive an appropriate concrete definition in legal acts. Despite the requirement, fixed in the Constitution of Ukraine (article 92), to define a local self-government basis «exclusively by laws of Ukraine» in the current legislation the subordinate legal acts continues to prevail. Great amount of the legal acts approved before enactment of the Constitution of Ukraine do not comply with it. The considerable part of the enacted laws is directed to change and addition of valid legal acts that testifies to instability and imperfection of legislation as a whole. There is an unresolved problem of bringing the legislation of Ukraine to conformity with international legal standards in the organization of local self-government. The legislation is formed under the influence of different conceptions of local self-government. These laws are united by a municipal paternalism instead of creation of conditions for self-realization of citizens through the coordinated functioning of self-organizing and self-management mechanisms.

The local self-government needs complex and system statutory regulation at three levels: 1) constitutional where basic principles and conceptual bases are established; 2) legislative on which the constitutional provisions are specified or detailed and local self-government bases, in particular system of its subjects, their status, functions and powers, mechanisms of their realization, the forms and methods of activity are fixed; 3) local on which according to the Constitution and laws of Ukraine, taking into account historical, national-cultural traditions, social and economic and geographical features of a local life the overwhelming majority of public relations of local self-government is regulated.

Legislation improvement in local self-government sphere is impossible without carrying out of the system analysis of the information about negative consequences of realization of statutory acts, and for this purpose it is necessary to develop and introduce system of its gathering and comprehensive scientific research. Lack of system character and discrepancy of a legal basis of local self-government which at first were interpreted as a problem of the initial stage of development, in the foreseeable future can become a serious obstacle for its further evolution in Ukraine.

It is necessary to carry out reforming of territorial, material and financial and other bases of the organization of public authority which should promote local self-government development as the basic institute of a civil society.

More and more scientists pay attention to a problem of excessive quantity of legal acts in the sphere of local self-government which fairly often are contradictory. It negatively affects efficiency of solving questions of local importance. Improvement of a legal basis of local self-government means transition to qualitatively new level of a legal regulation of public relations, of course upon condition of preservation of system character and integrity of the existing body of legislation.

Essential shortcoming of the branch legislation is cases of the generalized ("block") formulation of the competence of local authorities when powers of the local state administrations and those of the local self-government are defined as a single whole. Improvement of legal regulation of local self-government will be promoted by accurate definition of functions and powers of public authorities and of the bodies of local self-government taking into account their place and role in a society life.

Considering variety of municipal relations, the problem of system character of their legal regulation takes on special significance. System approach is one of the decisive conditions to increase efficiency of legal regulation. It concerns local self-government spheres as well. A condition for achievement of such integrated approach is, in particular, to take consistently into consideration in law-making activity unity of public and private aspects of self-governing relations.

It is necessary to consider as priority directions of improvement of a legal basis of local self-government adoption of a new edition of the Budgetary Code, laws of Ukraine «About local government in Ukraine» and «About the administrative-territorial division» in which it is necessary taking into account modern realities to solve a question of interbudgetary relations, property, local taxes and duties, of the status of chairmen of a village, a settlement, a city, of carrying out of the administrative-territorial division reform.

Statutory acts regulating questions of payment of personnel of local self-government bodies require improvement. At the present stage of development of local self-government it is necessary to limit gradually level of imperative regulation of the state of relations in this sphere, and to apply optional norms of recommendation character more widely which allow insuring of local councils activity without limiting their independence. Such norms are necessary if one or another question is not settled by the local self-government legal act.

Due to the fact that the legislation of Ukraine on local self-government was formed on the basis of the Soviet system of the legislation, the most of shortcomings of statutory regulation of public authority bodies’ activity still exist. Therefore the main task of municipal reform is to critically review the previous state-legal practice, to adopt all positive that was created during Soviet time, and at the same time to reveal negative features of the Soviet system, to correct them taking into account the modern realities and the advanced foreign experience.

The imperfect legal base not only interferes in normal development of local self-government, development of harmonious relations of a person, a state, a society at level of the world standards of democracy, but also is an environment for corruption. Reform of system of public authority should be of complex character that demands working out of the uniform adjusted conception of simultaneous introduction of administrative, parliamentary, judicial, municipal and administrative-territorial reforms. Integrated approach during realization of these reforms provides application of organic set of political, organizational, economic, ideological and social-psychological methods. Reforming of power structures should be spent in close coordination with reforming of political and economic systems, and also with creation of institutes of a civil society.