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

The National Law Academy of Ukraine named after Yaroslav the Wise

Special guarantees of local self-government in Ukraine and their comparison with fundamentals of the organization and activity of local self-government

Existence of local self-government both in other countries and in Ukraine, in particular, is impossible without appropriate system of guarantees of its activity. For this very reason Ukraine in the legislation has fixed a number of such guarantees which are called upon to provide real performance by local self-government bodies of the functions assigned to them and the powers given.

In legal literature local self-government guarantees are understood as set of legislatively fixed, necessary conditions and means which provide realization and protection of the rights of local self-government and are called upon to promote development of local self-government and to provide stability of its bodies.

In science of the state building the most common classification of guarantees of local self-government is classification into the general and special (legal) guarantees.

The general guarantees of local self-government are economic, political (organizational-political), spiritual principles of a society and state which create real opportunities for stimulation, development and performance of tasks and functions of local self-government.

Special (legal) guarantees of local self-government are legal means of insuring of the local self-government system functioning, provided for by the legislation, as well as in by statutes and legal acts of local self-government bodies. They hold a special position in the system of guarantees of local self-government and require appropriate attention.

Depending on the special purpose they are divided into:

- guarantees which provide organizational legal independence of local self-government: accurate constitutional delimitation of two systems of bodies of public authority (public authorities and local self-government bodies); independence of the system of local self-government bodies formation by the population of a territorial community; the prohibition on interference of executive authorities and their officials in legal activity of local self-government bodies as well as to solve questions which the legislation delegated to the local self-government competence, except cases of performance of the powers delegated by councils; the right to have own symbols (an emblem, a flag, etc.) which display historical, cultural, social and other local features, traditions of a territorial community; the right of a territorial community to have the charter which is a necessary element of a legal basis of local self-government and provides organizational independence in the system of government;

- guarantees which provide financial and economic independence of local self-government: the right of inhabitants of a territorial community directly or through local self-government bodies to manage the municipal property, to approve local budgets and to supervise their performance, to establish local taxes and duties according to the law; the right to give local loans, to issue lotteries, securities, to establish municipal banks and other financial and credit institution; the right to establish and independently manage the municipal enterprises, establishments, organizations with independent determination of purposes, terms, an order of their activity, etc.; providing of financial support of local self-government by the state in the form of grants and subventions;

- guarantees of the protection of rights of local self-government: the right of local self-government to judicial protection (article 145 of the Constitution of Ukraine) which is detailed in paragraph 4 of article 71 of the Law of Ukraine «About local self-government in Ukraine":" Bodies and officials of local self-government have the right to address to court so that legal acts of local executive authorities, other local self-government bodies, enterprises, establishments and organizations which limit the rights of territorial communities, powers of bodies and officials of local self-government to be declared illegal»; a recognition of act of bodies and officials of local self-government illegal on the grounds of their discrepancy of the Constitution or laws of Ukraine only according to court decision (paragraph 10 of article 59 of the Law of Ukraine «About local self-government in Ukraine»); local executive authorities, enterprises, establishments, organizations, officials, citizens bear responsibility for harm to local self-government bodies caused by their actions or inactions, and as a result of failure to perform the decisions of bodies and officials of the local self-government made within powers given to them (paragraph 3 article 73 of the Law «About local self-government in Ukraine»); mandatory character of acts and legal claims of bodies and officials of local self-government for all executive authorities, associations of citizens, enterprises, establishments, organizations, officials, located in corresponding territory and also for citizens who constantly or temporarily live in corresponding territory.

Special (legal) guarantees of local self-government can be classified also into substantive and procedural. Depending on the sphere of their action it is possible to allocate international, domestic and regional guarantees of local self-government.

The concepts of "a local self-government guarantee» and «fundamentals of the organization and activity of local self-government» are very similar. Similarity of these two legal categories is that both of them are, first, conditions of formation and development of the local self-government, and, second, they provide appropriate and effective functioning of local self-government. But, in spite of that, nevertheless they are different. Unlike guarantees, fundamentals of the organization and activity of local self-government are primary. Fundamentals of the organization and activity of local self-government are preconditions of creation, existence and development of local self-government while local self-government guarantees provide the further real realization of functions and powers by local self-government bodies.