Право/7.Экологическое, земельное и аграрное право.

Doctor of law, Professor Suleimenova S.Zh.

Doctor PhD Askarova A.O.
Kazakh National University of al-Farabi, Almaty, Republic of Kazakhstan
The concept and components of the mechanism of realization of norms of the water law

        Water (water objects, water resources) together with other natural resources make a material basis of the sovereignty of  the Republic of Kazakhstan. Welfare of the people and country condition depend on how they will be used appreciably. However, as a result of  the irrational attitude to natural resources, now the water problem has become one of the most important and difficult scientific and technical problems. Its negative social and economic consequences connected with accruing deficiency of water resources more and more shown in many regions of the republic sharply. This circumstance demands cardinal changes at all levels of the rational attitude to water, an accurate regulation of relations on usage and water protection , workings out theoretical problems of legal regulation of all life aspects  of water management. As the right possesses property to fix developed public relations and to establish frameworks of behavior of participants of these relations,  any aspect of a problem of rational usage and water protection is reflected in the rules of law corresponding to requirements directed on water protection. From this point of view, rules of law are one of operating methods on realization of the technical, economic and other measures directed on rational usage and protection of waters. Unfortunately, till now the water legislation influenced the condition of water objects poorly and the economic results received at their operation. The law doesn't provide real and enough concrete legal consequences when those or other persons supposed only the consumers’ attitude to water resources. The water legislation was limited in most cases to that in the general form demanded the rules regulations in usage of water objects, water economic and hydraulic engineering constructions. But these rules were not supported by necessary legal means which would be made by their obligatory solution. Elimination of these and other lacks is reflected in the Water code of the Republic of Kazakhstan accepted in 2003. Certainly the Water code doesn't solve all problems of regulation of water relations, maintenance of rational use and water protection. Therefore, it is necessary to develop the whole package of the statutory acts directed on a concrete definition and development of norms of the Water code of Republic Kazakhstan. So, further study of questions of development and perfection of the water legislation in particular problems of the mechanism of realization of norms of a water law have great value.

           The mechanism of realization of norms of law is a constituent element of the mechanism of legal regulation. Research of the mechanism of legal regulation is one of the basic problems of modern jurisprudence. During working out of the given problem S.S.Alekseev's works, in particular its monographies «the Mechanism of legal regulation in the socialist state» and «Theory of Law» where it is noticed  that the category «the mechanism of legal regulation» is defined in the theory of the state and the right for presentation of the movement moment and functioning of the legal form. But in some time the category «the mechanism of legal regulation» began to be used in other aspect as «the mechanism of creative law», «the legal mechanism of management». According to I.P.Slobodjanjuk, I.V. Makagon  now the concept «the mechanism of legal regulation» is applied as a way of functioning and system of  applied means, as a legal superstructure in a system "working" kind [1, with. 163]. Concept «the mechanism of legal regulation» derived  from the concept of legal regulation. N.G.Alexandrov defines legal regulation as carried out by means of system of legal means (legal norms, legal relationship, individual instructions, etc.) productive, is standard-organizational influence on public relations for the purpose of their streamlining, protection and development according to public requirements [2, with. 548]. Apparently, S.S.Alexeyev defines legal regulation through legal influence. However, not any legal influence makes the mechanism of legal regulation. But the concept of the mechanism of legal regulation is not the concept of the mechanism of legal influence. The concept "influence" is wider than "regulation",  M.N.Marchenko notices that the influence included both regulation by means of the certain rule of law, and other legal means and forms of influence on people’s behaviour  [3, with. 435]. S.A.Komarov includes legal consciousness, legal culture, legal principles, creative law process in the mechanism of legal influence along with the mechanism of legal regulation [4, with. 177-178]. Difference of legal influence from legal regulation consists that legal influence is a part of social influence. As cultural and information value, the right defines a direction of human activity, enters it into the general frameworks of civilized public relations. In this sense legal influence is wider than legal regulation of public relations. Feature of legal regulation consists in realization by means of the edition of obligatory norms of behavior. Here is the art of law creative bodies is shown, their ability to consider real possibilities and to expect coming consequences. However, level of the mechanism of legal regulation depends not only on legislation condition, - considers A.I.Bobylev [5, 106 with.]. It is important to realize in practice the adopted laws. Therefore  the question on the mechanism of realizations of norms of the law arises sharply». In our opinion, it is one of essential problems of the domestic right in which decision each member of a society should be interested. A.V.Malko specifies that the purpose of the mechanism of legal regulation is the maintenance of unobstructed movement of interests of subjects to values, i.e. guaranty their fair satisfaction. Proceeding from it, it defines the mechanism of legal regulation as the system of the legal means organized in the most consecutive image with a view of overcoming obstacles, interests of legal subjects getting in way of satisfaction [6, with. 627]. V.N.Hropanjuk gives the concept of the mechanism of legal regulation - it is a system of legal means which helps orderliness of public relations in accordance with the purposes and lawful state problems [7 is carried out, with is more short. 384]. In our opinion, analyzing mentioned all above, the mechanism of legal regulation is understood as the set of legal means taken in unity which helps the state carries out legal influence on public relations in the direction wished for it. In the mechanism of legal regulation of S.S.Alexeyev allocates structure of legal regulation which is characterized, first of all, by methods and ways of regulation. The method or a combination of methods of legal regulation is inherent in each branch of the law. In the theory of legal regulation it is accepted to allocate two methods of legal influence: 1) the method of the decentralized regulation constructed on coordination of the purposes and interests in the public relation and applied in sphere of branches of private law; 2) the method of the centralized, imperative regulation based on relations of the  subordination between participants of public relations and used in public - legal branches. Means of legal regulation are the ways of legal influence expressed in legal norms and other elements of legal system. S.S Alexeyev allocates next means of legal regulation: the permission - granting to persons the right to their own active actions; prohibition - putting on persons of a duty to abstain from fulfillment of actions of a certain sort; positive obligation - putting on persons of a duty of active behavior (something to make, transfer, pay) [8, with. 152]. V.V.Lazarev names the same ways of legal regulation, but in a bit different sequence: positive obligation; permission; prohibition. Thus he specifies that the method is a set of legal ways of legal regulation, and ways are some kind of «a building material», «legal substance» making a method [9, with. 40]. Hence, process of legal regulation in each specific case is various - depending on performance of legal duties - voluntary or under duress.

For understanding legal regulation its subject or sphere of legal regulation has essential value. A subject of legal regulation are various public relations which objectively, by the nature, can give in to is standard-organizational influence. The sphere of legal regulation includes various groups of public relations: 1) relations of people on an exchange of values; 2) relations on imperious management of a society; 3) relations on the law and order maintenance, arising from infringement of the rules regulating behavior of people in two above-stated spheres. The sphere of legal regulation isn't invariable and constant, it can extend at the expense of occurrence of new relations (the relation in ecology sphere) or to become at the expense of refusal of right usage in different areas of public relations. Features of the maintenance of legal regulation in many respects depend on the maintenance and character of a subject, and from here and features the structure of the law. It can be property, ground, water, administrative, organizational and other relations. V.V.Lazarev specifies a question on the sphere and limits of legal regulation. He notices that their correct definition is necessary to exclude usage of legal tools in spheres of the people interaction demanding other means of social regulation. From the above mentioned it is possible to draw a conclusion that the concept of the mechanism of legal regulation allows not only to gather the phenomena of the legal validity - norms, legal relationship, the legal certificates participating in legal influence, and to present them as integrity in a system-influencing kind that characterizes productivity of legal regulation; to reveal in this connection specific functions which carry out different legal phenomena in legal system, to show their communication and interaction among themselves. According to V.M.Syrykh it is debatable the considered position of understanding of the mechanism of legal regulation as the set of the legal means used in the course of legal regulation of public relations. [10]. It proves the sights that one of main principles of the scientific analysis of difficult systems, mechanisms demands to consider investigated object, the phenomenon in interrelation, interaction of parts making it. Only at such approach it is possible to establish components what their functions are, how much effectively operate and mechanism work as a whole as uniform complete formation is how much productive. Studying of a structure of the mechanism at the  level of parts making it is incomplete. Therefore, to receive true representations about the mechanism of legal regulation, its ability to act in this quality should consider as much as possible full all its components, and also to take them in interrelation and interaction. At such methodological requirements the mechanism of legal regulation can be considered as the difficult system consisting of legal means, the subjects who are carrying out the legal regulation or legal activity, and legally significant results of their activity. Thus the uniform mechanism of legal regulation in compliance with stages of legal regulation is subdivided into three components: the mechanism of creative law, the mechanism of realization of norms of the right and the mechanism of the state compulsion. Each mechanism operates at the stage of legal regulation – law creativity, law realization and application of legal responsibility - and is characterized specific, only to it by inherent legal means. The mechanism of legal regulation finds the realization through the mechanism of influence of the right to public relations. Originally the idea of the mechanism of influence of the right to public relations was put forward by N.G.Alexandrov [11]. The certain contribution to working out of questions of the mechanism of legal regulation was brought by P.E.Nedbajlo, A.S.Pigolkin, M.P.Lebedev, N.I.Matuzov and a number of other scientists-lawyers. But the given idea has got the developed substantiation in the works of Professor S.S.Alekseyev. His offered construction in the subsequent hasn't undergone essential changes. According to stages of legal regulation S.S.Alexeyev allocates three basic elements (links) in the mechanism of legal regulation: 1) legal norms; 2) legal relations; 3) certificates of realization of the rights and duties. A facultative element are the certificates of application of the right. Such representation about structure of the mechanism of legal regulation widespread, but isn't the only thing, there are other points of view. So, A.V.Malko allocates following basic stages and elements of legal regulation: 1) norm of the right; 2) the legal fact or actual structure with such solving fact, as organizational - executive law-applied certificate; 3) legal relationship; 4) certificates of realization of the rights and duties; 5) guarding law-applied certificate (a facultative element) [12, with. 14-18]. At the first stage the rule of behavior which is directed on satisfaction of those or other interests being in sphere of the right and demanding their streamlining is formulated. Here not only the focus of interest and accordingly legal relationship in which frameworks their realization will be lawful is defined, but also obstacles to this process, and also possible legal means of their overcoming are predicted. The named stage is reflected in such element of the mechanism of legal regulation, as norms of the law. However, some researchers don't recognize behind the legal facts of the status of an independent element of the mechanism of legal regulation, believing that value of the legal facts is reduced providing transition from one stage of legal regulation to another. Legal fact itself, - writes, for example, U.I. Grevtcov, - is vital circumstance with which the norm of the right connects occurrence, change or the termination of legal relationship [13]. Independence of the legal facts in the mechanism of legal regulation, according to V.B.Issakova, it is predetermined that they are connected not only with legal relationship, but also with other elements of the mechanism of legal regulation [14]. Correct fastening of the legal facts in hypotheses of legal norms is one of the problems facing law creative bodies by working out regulatory legal acts. Full, exact and authentic establishment of the legal facts is the necessary precondition for application of rules of law. The role of the legal facts in the mechanism of legal regulation, in our opinion, isn't settled by formation, change and the termination of legal relationship. We consider that the establishment of kinds of the vital facts by which significance of the legal facts is attached, is an independent link in the mechanism of legal regulation as efficiency of application of norms of the right depends on correct definition of the legal facts. The second stage of process of legal regulation is reflected in such element of the mechanism of legal regulation, as the legal fact or actual structure where function of the solving legal fact carries out operatively - executive law-applied certificate. The third stage is an establishment of concrete legal communication with division of subjects obliged. It is a question of legal relationship which evolves from norms of the right and in the presence of the legal facts and where the abstract program is transformed to a concrete rule of behavior for corresponding subjects. The given stage is embodied in such element of the mechanism of legal regulation as legal relationship. E.G.Lukjanova considers, what exactly in legal relationship, comes to an end standard action of the mechanism of legal regulation, that actual, real behavior of the subjects, that result on which the will of the legislator has been directed is provided. In its opinion, allocation as independent such element of the mechanism of legal regulation, as certificates of realization of the rights and duties is represented logically unjustified. If legal relationship to understand as unity of the legal form and the actual maintenance, - believes E.G.Lukjanova, - this element of the mechanism of legal regulation will include that as a legal element - investment of subjects with the rights and duties, and actual - certificates of realization of the rights and duties [15, with. 91-95]. In our opinion, on legal relationship the structure of the mechanism of legal regulation doesn't come to an end, and it is possible to allocate two more stages. At the fourth stage there is a realization of the subjective rights and legal duties at which legal regulation reaches the purposes - allows interest of the subject to be satisfied. Certificates of realization of norms of the right can be expressed in three forms: observance, execution and usage. In this case our conclusion correlates with A.S.Ibrayeva's opinion, who gives following concept in her monographic research «The Theory of State and Right». Forms of realization of the right:

- observance is such a form of realization when participants of public relations don't suppose infringement of laws and other regulatory legal acts;

- execution - is addressed to participants of relations who are obliged to execute the instruction of laws, by performance of their instructions;

- usage -  subjects realize the rights given them by the law [16].

At observance the subject abstains from fulfillment of the actions forbidden by norms of the law. At discharge of duties the person should be satisfied with active actions of public interests in protection and not to put obstacles in any forms. At usage the subject receives the blessing, value, satisfies personal interests. Thus, it shouldn't interfere with satisfaction of interests of other persons.

The fifth stage is facultative. It comes into effect when the unobstructed form of realization of the right isn't possible and when to the aid of unsatisfied interest should come corresponding law-applied activity. E.G.Lukjanova allocates remedially-legal mechanism as an element of the general mechanism of legal regulation which comes into effect at some stages of the general legal regulation, in cases of occurrence of obstacles of normal realization of rules of law and has a guarding orientation. She considers that the remedially-legal mechanism is dynamic system of legal means which helps guarding activity of the authorized bodies in area of jurisdiction law appliance is ordered. E.G.Lukjanova allocates basic elements remedially-legal mechanism, they are:

1) norms of a procedural right;

2) the legal facts mediating remedial legal relationship, or remedial actual system; 3) remedial legal relationship (legal process).

Remedially-legal mechanism possesses a number of the features which research is a perspective problem of a legal science. Scientific working out of a problem remedially-legal mechanism would promote increase of efficiency of remedial regulation of public relations, strengthening and development of the mechanism of realization of norms of the right. Thus, full studying of structure of the mechanism of legal regulation, explanation of its elements and their role in the mechanism of legal regulation is  an important step to correct and effective realization of norms of the right. At the present stage of research of the mechanism of legal regulation when the new material is saved up in considerable volume, has ripened necessity as we think, new vision of the mechanism of  legal regulation - in the form of "the volume" phenomenon. Such phenomenon, which has some cuts, levels and in which means of legal regulation are built not only linearly (that is characteristic for the main links), but also in several planes. From the given point of view the mechanism of legal regulation can be subdivided into such components: the mechanism of law creativity, the mechanism of realization of norms of the right, the mechanism of the state compulsion where the guarding orientation is carried out by the mechanism of remedial regulation. Summing up, it is possible to notice that the mechanism of realization of norms of a water law represents set of the standard, institutional and remedial components which interaction is directed on realization of norms of a water law. The standard component includes working out and acceptance of standard legal certificates of the national and international level, fixing priorities and the principles of the water law and order regulating behavior of subjects of water legal relationship. The water-rule of law acts as a basis of all legal mechanism of regulation of water relations. By means of system set of water-rules of law the standard basis of the mechanism set is created a considered circle of public relations. As the basic institutional elements of the mechanism of realization of norms of a water law state structures and their officials allocated with imperious powers in the decision of water questions act. The remedial component characterizes mechanism action law application which begins in the presence of the legal fact, subjective competence and object of legal influence. Only at the set of these conditions the mechanism of law application starts to cooperate with physical and the system of communications, relations, realization of rules of law and the methods directed on achievement of the purposes of law application arises legal bodies. The research conducted by us has allowed to define a number of conceptual positions, conclusions on problems of the mechanism of realization of norms of the water law, directed on perfection of the current legislation of practice of its application.

It was set that the problem of water resources contains the considerable potential creating threat of ecological safety of Republic of Kazakhstan and the states of the Central Asia. It demands development of theoretic-methodological approaches to research of a considered problem in a context of a national water policy. It is established that priority directions in perfection of system of the legislation in the long term in the field of usage of water objects and water economic constructions should become: legislative regulation of the property right to means of production of potable water for the population and the property relations connected with it; working out and introduction of standard legal certificates and state standards in the sphere of drinking water supply.

The list of the sources:

1. Alexandrov N.G. Legality and legal relationship in the Soviet society. - M.:Gosjurizdat, 1955. - P. 163.

2.  Aleksandrov N.G., etc. The theory of state and right. - TH.: The Legal literature, 1968. - P. 548.

3. General theory of the state and the right. The academic course / Under the editorship of M.N.Marchenko. Т. 2. - М: Yurist, 1998. - P. 435

4. Komarov S.A. General theory of the right. М: the Legal literature, 1982. - P.P. 177-178.

5. Bobylev A.I.Mehanizm of legal influence on public relations//the State and the right. - 1999. - № 5. - P. 106.

6. Theory of state and the right. A course of lectures / under the editorship of N.I.Matuzova and A.V.Malko. - TH.:Yurist, 1997 - P. 627.

7. Hropanjuk V. N. The theory of state and the right: the Manual for higher educational institutions / Under the editorship of Professor V.G.Strekozova. - М:« Dabakhov, Tkachev, Dimov », 1995. – P. 384.

8. Alexeyev S.S.Theory of  the right. - М: Publishing house BEK, 1994. - P. 152. 9. Lazarev V.V.Sphere and limits of legal regulation//the Soviet state and right. - 1970. - № 11 - P. 40.

10. Syrykh V.M.The theory of  state and  right. The textbook for high schools. - М: the Bylina, 1998. – P. 512  

11. Theory of the state and the right / Under the editorship of N.G. Aleksandrova. - М: 1974.- P. 620.

12. Alexeys S.S.  Legal means: statement of a problem, concept, classification//The Soviet state and the right. - 1987. - № 6. – P.P. 14-18.

13. Grevtsov Ju.I. Problemy of the theory of legal relations. - Л: I LIE, 1981. – P. 83.

14. Isakov V.B.Juridicheski the facts in the Soviet right. - М: Legal literature.-1984.- P.134.

15. Lukjanova E.G. The Mechanism of remedial regulation and its elements//Magazine of the Russian right - 2001 № 7 – P.P. 91-95

16. Ibraeva A.S. The theory of  state and right. - Almaty, Zheti Zhargy. - 2006. - P. 115.