“Право”\ Административное и финансовое право.

P.A. Izimov

undergraduate of 1 course

Al-Farabi Kazakh National University

scientific leader– doctor of jurisprudence Zhatkanbaeva A.E.

To the theory of the budgetary legal relationship

Summary. The article analyzes the theoretical aspects of the budget law, namely the concept of budgetary relations, their classification and the specific features of the structure of budgetary relations. Theoretical issues of budgetary law confirms the analysis of the current budget legislation of the Republic of Kazakhstan.

The budget is important prerequisite and means of implementation of reproduction process. It is the fixed monetary assets of the state. By means of the budget centralization of financial resources of the state for performance of functions by it on creation of material base, increase of a material and cultural standard of living of the population is carried out. With its help conditions for implementation of social programs, ensuring safety of environment, stimulation of scientific and technical progress, maintenance of defense capability, performance of other state functions are created.

Legal registration of the budgetary relations means their public consideration through system of representative bodies of all levels that allows carrying out guarantees of creation of the budgetary system on the real federal beginnings, but not on the declarative. Legal regulation introduces in the budgetary relations stability and security from a simple case and arbitrariness. As a result of legal regulation the budgetary relations develop as result of subject activity of the state. The public relations settled by norms of the budgetary right are the budgetary legal relationship, which differ from financial legal relationship in narrower scope of application.

Thus, the budgetary legal relationship - it is a type of the public relations in which by means of special methods the system of financial precepts of law installed or authorized by the state will in concrete legal relationship is realized.

The BC of RK understands as the budgetary relations - the relations arising in the budgetary process [1].

The budgetary legal relationship develops not only on the basis of norms of BC of RK. A significant amount of the budgetary legal relationship evolves from annually adopted laws (decisions) on budgets of different levels, decrees and orders of the President of Kazakhstan, regulations of executive power of RK and local governments. So, the BC of RK establishes that the budgetary legislation of the Republic of Kazakhstan is based on standards of the Constitution of the Republic of Kazakhstan, consists of standards of the Budgetary Code and other regulations which acceptance is provided by the present Code.

The budgetary legal relationship only of the statutory act - the law on the budget for the next fiscal year evolve. Fiscal year - is the period during which the voted budget works. Financial year is equal in the Republic of Kazakhstan to 12 months. As the law on the budget works one year, all budgetary legal relationship have periodic character, i.e. work too one year. From the introduction moment in action of the new act of the budget these legal relationship renew, as a rule, between the same subjects.

The sphere of emergence of all budgetary legal relationship is the budgetary activity of the state and municipalities. In the budgetary sphere the state by means of the right establishes types of income of budgets, an order of their accumulation, defines ways of use and methods of distribution of budgetary funds etc.

The budgetary legal relationship cover set of the monetary relations connected with accumulation, distribution and use of the centralized monetary funds of the appropriate territorial level for financial security of tasks and functions of the concrete territory.

Classification of the budgetary legal relationship is possible on various bases.

The initial basis determining by criterion of classification of the budgetary legal relationship is the three-unit structure of the budgetary system of RK which causes division of the budgetary legal relationship into the budgetary legal relationship of rather republican budget, the budgetary legal relationship of rather territorial budgets of RK, the budgetary legal relationship concerning budgets of municipalities. Each of the listed types possesses independence and has the specifics of legal regulation caused by legal status of that territory in which it develops.

The administrative device of the Republic of Kazakhstan is criterion for division of the budgetary legal relationship on vertical and horizontal. The first mediate communications between the center and territories, as a rule, on the basis of subordination. The second reflect communications between territories, equal on the legal status: territorial educations relatively each other. In the conditions of the state vertical budgetary communications are prevailing. The similar classification which is carried out on a ratio of legal status of participants of the budgetary legal relationship allows seeing as if in a cut all types of the budgetary relationship [2, p. 147].

The quantitative structure of participants of the budgetary legal relationship allows allocating bilateral and multilateral budgetary legal relationship.

On object of legal regulation the budgetary legal relationship, property and non-property, and also separable and inseparable from the material contents, are allocated.

Subjects of the budgetary legal relationship take part in distribution of the income and expenses between different types of budgets, are the participant of the budgetary process or receive from the budget money in the form of the budgetary financing or the budgetary crediting. Subjects of the budgetary legal relationship possess one or several at the same time from the listed above bases. So, objects, separable from the material content of legal relationship, what are anyway recorded in budgetary precepts of law or follow from the analysis of the specified norms and exist as world around subjects: budgetary credits, budgets, subsidies, drafts of budgets, regulations, etc. Objects, inseparable from the material content of legal relationship, - what represent result of activity of participants of the budgetary legal relationship, inseparable from its material contents (for example, the budgetary control). Property legal relationships are allocated with such object as, for example, the budgetary credit, a transfer, and object of non-property legal relationship are the draft budget, financial control, etc.

For the budgetary legal relationship the following signs are characteristic:

1) they arise in the course of the budgetary activity of the state, i.e. activities for formation of the budgetary device, and also in connection with formation, distribution and the organization of use central and local budgets;

2) are a product of legal regulation of the state public (economic and organizational) the budgetary relations;

3) as material object of the budgetary legal relationship the money or liabilities which are means or formations of the budget, or its expenditure in the form of distribution act;

4) acts as the obligatory subject of material budgetary legal relationship or the state in general (if it is about the republican budget), or the corresponding administrative and territorial unit, presented by the appropriate government body or the other person. Government bodies can act as the independent subject of organizational budgetary legal relationship;

5) the budgetary legal relationship (both material, and organizational) has a state domineering character.

Respectively, characteristics of the budgetary legal relationship are:

1. The budgetary legal relationship - a type of financial legal relationship. Financial legal relationship arises in education (formation), distribution (redistribution) and use of monetary funds, financial means of the state and municipalities. The budgetary legal relationship arise concerning determination of competence of public authorities and local governments in connection with establishment of an order of drawing up and consideration of drafts of the republican budget, budgets of areas, the cities, areas, statements and performances of the specified budgets, control over their execution, etc. In other words, the budgetary legal relationship arises in the sphere of the budgetary activity of the state and territorial educations.

2. Obligatory subject of the budgetary legal relationship always is the state represented by authorized body, local government.

3. The budgetary legal relationship arise, change and stop in the course of functioning of budgets of various levels of the budgetary system of RK. Thus the three-level budgetary system defines features of the budgetary legal relationship arising in the course of functioning of the federal budget, regional budgets and budgets of municipalities.

4. The budgetary legal relationship in the cases established by the legislation is subject to inter industry regulation. So, the budgetary credit as a form of expenses of budgets can be provided to the Republic of Kazakhstan, its territories or the legal entity on the basis of the contract signed according to the civil legislation of the Republic of Kazakhstan taking into account the features established by the Budgetary code of RK and other regulations of the budgetary legislation of the Republic of Kazakhstan on conditions and within budgetary appropriations which are provided by laws (decisions) on the budget [3, with. 60].

On the main functions of the right the budgetary legal relationship are subdivided into the regulatory legal relationship providing realization of regulatory function of the right, and the guarding legal relationship providing realization of guarding function of the right.

The structure of the budgetary legal relationship includes four elements: objects, subjects, subjective right and legal duty.

Depending on character and types of the budgetary legal relationship objects of the budgetary legal relationship can be:

a) the money coming to the budget, except for the means which are according to the Budgetary code of RK sources of financing of a budget deficit (the income of the budget);

b) part of budgetary funds which is used and spent from the relevant budgets (the budgetary expenses);

c) part of the state treasury (budgetary funds). In the budgetary legislation there is no definition of the state treasury in spite of the fact that the Budgetary code of RK considers the state treasury as object of the budgetary legal relationship. In this aspect it is necessary to proceed from financial and legal category of the state treasury;

d) projects republican and territorial budgets of RK;

e) laws on the republican budget and resolutions of maslikhat on the budget;

g) activities for implementation of the budgetary control, the budgetary account, etc. [2, p. 123].

In the course of financial (budgetary) control according to standards of the current legislation between subjects of the budgetary control there are budgetary and control legal relationship - a special type of financial (budgetary) legal relationship.

Subjects of the budgetary legal relationship - direct participants of the budgetary activity of the state and territorial educations, they take part in distribution of the income and expenses between different types of budgets, are participants of the budgetary process.

By the current legislation enter a circle of subjects of the budgetary right:

a) state and its territorial divisions;

b) territories with a special legal regime (the closed administrative-territorial educations, special economic zones);

c) public authorities and local government - representative (legislative) and executive bodies of the government and local government;

d) bodies of monetary and credit regulation, credit organizations;

e) the main managers, managers and recipients of budgetary funds represented by institutions and other organizations;

e) chief managers and administrators of the income of the federal budget.

The subject of the budgetary legal relationship as the direct participant of the budgetary activity of the state and municipalities, has to possess the budgetary right subjectivity. The budgetary right subjectivity is a set of the budgetary legal capacity, the budgetary capacity and the budgetary ability.

The budgetary legal capacity assumes opportunity, ability to have the rights provided by the budgetary legislation and duties. Legal capacity acts in two qualities: active, i.e. right subjectivity which subjects of the power, and passive right subjectivity which carrier are subjects of submission [4, with are allocated. 296].

The Bulgarian scientist Kostov M. specifies in this aspect that differentiation of active and passive subjects of financial legal relationship can't be built on the civil model "the creditor-the debtor". In the relations which are under construction by the principle "the power - submission" and not allowing other types of communication, - namely to such Kostov M. refers financial legal relationship, - as the active subject the body which is allocated with imperious competence irrespective of always acts, whether he is authorized to bring together (to receive) means or to carry out actions for financing and subsidizing. Passive subjects - addressees of imperious competence irrespective of, whether are they financial debtors or carriers of the subjective public rights (requirements) in the sphere of the financial right [5].

Subjects of the budgetary legal relationship have a legal capacity and capacity arise from the moment of their education at the same time and in full.

The budgetary code of RK allocates with appropriate authority of subjects of the budgetary legal relationship separately in the field of the budgetary regulation and the budgetary process. Thus the specified subjects at the same time can be considered by participants of both the budgetary process, and the budgetary regulation. According to the 6^th article of BC of RK the budgetary powers are the RK established by the Budgetary code and the legal acts regulating the budgetary legal relationship, the rights and obligations of public authorities (local governments) and other participants of the budgetary process on regulation of the budgetary legal relationship, the organization and implementation of the budgetary process accepted according to it.

We think that the object relationship should be considered something that sent the rights and duties of subjects. Discussions about what exactly serves as the object relationship: the objects of the material world or behavior, actions, or both at the same time - are carried out in the framework of the two theories - monistic (the theory of a single object) and pluralistic (theory of multiple objects).

So, especially budgetary relations are revealed through the prism of their functional purpose, subject composition, duration, and self-regulatory framework.

Taking into account the above-considered general theoretical position of legal relations in general and about the features of budgetary legal relations in particular, the author can offer the following definition of budgetary relations.

Budgetary legal - regulated by the budget legislation of a composite nature of social relations that arise, develop and change in the budget process in which the participants presented their credentials implement income generation and expenditure of the budget system, the implementation of state and municipal debt, management of state and municipal debt, drafting, review, approval and execution of projects budget system of Kazakhstan, the implementation of the budget accounting and the preparation, review and approval of budget reporting, as well as in the implementation of financial controls at all stages of the budget process.

The list of the used literature:

1. The budgetary Code of the Republic of Kazakhstan of December 4, 2008 No. 95-IV ZRK

2. Satarova N. A. Budgetary right. M.: Business yard, 2009. – 296 pages.

3. Kovalyova T.M., Barulin S. V. The budget and the budgetary policy in RK. Moscow, KNORUS Publishing house, 2009, p. 102-118.

4. Burkhanova I.V. Budgetary system of the Russian Federation. Moscow, Eksmo Publishing house, 2008, p. 5-22.

5. Kostov M. Financial right//http://www .uristinfo.net/bjudzhetnoe-pravo/80-nasatorova-bjudzhetnoe-pravo-rf/1691-glava-3-bjudzhetnye-pravootnoshenija.html? start=1