Masters student of 2^nd course - Eslyamgalyev Zh.R.

Al-Farabi Kazakh National University

Features of formation and development principles divisions of the authorities in the mechanism of the state of RK

Historical memory stores a lot of instructive and fruitful ideas about the compatibility with the state law. Legal state is a product of modern times. Neither antiquity nor the Middle Ages did not know the rule of law. Although considered by some lawyers, the idea of the rule of law is rooted in the ancient society. The basis of modern concepts of the rule of law are the ideas of the German philosopher Kant (1724-years.), French educator and jurist Montesquieu (1689) and other European Enlightenment XVIII and XIX centuries, such as Hugo Grotius, Spinoza, Dzh. Lokk, Denis Diderot, J.-J. Rousseau. These scientists believed that instead of the police, bureaucratic state era of absolutism (which Kant called the state of arbitrariness), must come rule of law, which is based on the idea of an autonomous personality possessing inalienable, inalienable rights. Relationship between the individual and the government under the rule of law is fundamentally different from those in the absolutist state, because for the rule of law is characterized by limitation of state power, its connectivity rules and laws.

The concept of the rule of law in Kant's thesis are as follows: a source of moral and legal laws favor the practical reason, or free will of the people; man becomes a moral person, if the rise to an understanding of their responsibility to humanity as a whole; in their individual behavior should be guided by the requirements of the categorical imperative, which is the following: «Act so that you are always concerned for humanity and in his face; and in the face of every other as well as to the purpose, and never would apply to it only as a means of «and» act so that the maxim of your action could become a universal law»; usually based on the moral law must be defined boundaries of human behavior with a view to the free will of a person is not contrary to the freedom of others; law is intended to provide an external decency civilized relations between people; State is a compound of many people, subordinate legal laws. Or «state of the idea, such as it should be» obliged to conform «with the pure principles of law»; State intended to guarantee the rule of law and based on the principle of sovereignty.

State-legal views Montesquieu reduced to that form of government, form of government define the spirit of the laws and the content of the legislation; based on the fact that the principle of democracy is a virtue, love for the common good; based on the fact that a «correct» form of government is democracy, in which the supreme power is vested in the whole mass of the people here and the basic laws govern your submission of votes by which the expressed will of the people, the composition and method of the activities of the national assembly; preaches love of country, respect for the law, support for the existing order, equality and moderation states, protection of family heritage. Theoretical construct the rule of law prevailing in the political-legal doctrine eighteenth and twentieth centuries. Includes the separation of powers between the legislative, executive and judicial, legal rule of law, mutual responsibility of the individual and the state, domination type of legal regulation in accordance with the legal principle of «everything is permitted that is not prohibited by law», the establishment of real guarantees of individual rights and freedoms.

Many of the key concepts of the past are repeated at a new stage of historical development. A few years ago the phrase «state of law» habitually associated with those sections of the university course where various modifications criticized Western doctrines of the same name and proclaimed «socialist legal state». In order to understand the deep essence of the rule of law is not sufficient to restrict the set though important, but still external characteristics (coupling state law, separation of powers, the existence of the Constitution), a certain system of principles, institutions and norms. The essence of the rule of law is not a law-as well as not in the abundance of legislation - both signs have no legal and police state. The essence of the law of the state is in the nature of laws and their compliance with the legal nature of things, aimed at ensuring the sovereignty of the individual. Hegel emphasized that good laws lead to the prosperity of the state, and the free ownership is a fundamental condition for its luster.

In most developed bourgeois-democratic form of the rule of law is the concept of social value of all mankind, a successful combination of universal and class interests. At the heart of the rule of law in the first place, should be based on the legal economy, rather than command and barracks, doomed to degradation due to the lack of internal incentives to work. And, secondly, the basis of the legal system is a civil society development. Civil society is a system of economic, spiritual, cultural, moral, religious and other relations of individuals freely and voluntarily united in associations, unions and corporations to meet their spiritual and material needs and interests. It is based on the principle of self-governing, protected by customs, traditions and moral norms and rules of government intervention. State -lish form of civil society. In antilegal state individual, society and the people of the state as opposed to the political apparatus of power, alienated from him. There's no people, there are his subjects. Civil society presupposes the existence of numerous independent unions, institutions and organizations that serve as a barrier against the encroachment of monopoly and government agencies. The concept of civil society implies not only «citizenship», a certain degree of political freedom, but also the «bourgeois», ie economic independence of the person the opportunity to earn an income is not out of the hands of the state.

The deployment of the whole complex of state institutions in a democratic society eliminates the domination of political power, eliminates or severely restricts the manifestation of its negative sides. Among the vast complex of institutions typical of developed state in a democracy, you must specify, in particular, to such: the mandate of the people to exercise power, primarily through the formation of representative bodies carrying out legislative and oversight functions; the presence of the municipal government; subordination of all divisions rule of law; independent and strong justice; the presence of the government in separate blocks, including the executive branch.

This socio-legal measures to regulate the scale of labor and consumption. To restore the legal principles in the economy should revive a number of freedoms:

1. open space all types of property;

2. replace administrative orders treaties based on the equality of the parties;

3. make the overriding principle of «everything that is not prohibited»;

4. to provide an equivalent nature of the exchange;

5. to approve the equality and integrity in choosing a partner;

6. not to restrict initiative and enterprise.

Legal economy and civil society - the transition from the distribution company to market - is deep, the essential preconditions of the rule of law.

Legal state - a state that serves the needs of civil society and the legal economy, whose purpose - to ensure the freedom and well-being. It is under the control of civil society and is based on the equivalence of goods exchanged on the actual ratio of public supply and demand, is responsible for law and order, which guarantees individual liberty and security, because it is the spiritual foundation for the recognition of human rights. Legal state - a democratic state where the rule of law is ensured, the rule of law, equality before the law and an independent judiciary, which recognizes and guarantees the rights and freedoms of man and where the basis for the organization of government based on the principle of separation of legislative, executive and judicial powers.

Factors and conditions of formation of the rule of law, apparently, are the following:

- Overcoming legal nihilism in the public mind;

- Development of high political and legal literacy;

- The emergence of an effective ability to resist tyranny;

- Distinction between party and state functions;

- Establishment of a parliamentary system of government;

- The triumph of political and legal pluralism;

- Development of new legal thinking and legal traditions.

Legal state - a way to revive the natural history of human rights and freedoms, the priority of the citizen in his relationship with the state, the universal principles in the law of self-worth of man. The concept of «legal state» - a fundamental human values such as democracy, humanism, human rights, political and economic freedom, liberalism and others. The essence of the idea of the rule of law - in the rule of law in public and political life, there is a sovereign legal authority. With the separation of powers, the state is organized and operates the legal way, is a measure of the scale of the democratization of political life. Legal State opens legally equal access to participation in political life in all directions and movements. What is the difference between the rule of law by the state as such? The state as such is characterized by its absolute power, not bound by law, freedom of the state from society, unprotected citizens from tyranny and violence on the part of state bodies and officials. In contrast, the state of law related to the right, based on the rule of law operates strictly within certain limits set by society, is subject to the Company responsible to the citizens, provide social and legal protection of citizens. However, the state of law as well as any state has common features, which are as follows:

1. It is inherent in government as a means of domestic and foreign policy.

2. It is a political organization of society, based on the relevant socio-economic basis of society.

3. Includes a special state mechanism.

4. Has a certain administrative-territorial organization in their territory.

5. There is thanks to taxes and other charges.

6. Has the state sovereignty.

Features of the mechanism of the rule of law are as follows. All its structural parts and elements operate on the principle of separation of powers, strictly in accordance with its intended purpose. Structural parts and elements of the rule of law all their activities conform strictly with applicable laws. Officials are personally responsible for violating the rights and freedoms guaranteed by the Constitution and other legal acts. Rights and freedoms provided by a body of law. The mechanism of the rule of law is a way of existence. The functions of the rule of law are implemented by means of its mechanism. Thus in a legal state of its mechanism is free from bureaucracy and administrative command and control. Legal state is the concentrated expression of civil society. Because of this, its stages of development in general, and generally coincide with the stages of development of civil society. However, since every state has a certain autonomy in relation to society, the stages of development of the rule of law has certain features that reflect its political character. The first stage in the development of civil society is the legal establishment of a market economy, entrepreneurship, transparency, freedom of media, social protection of citizens; the second stage of the market economy-approving various forms of entrepreneurship and social protection of citizens, the existence of public, free of the media.

Thus, having considered the concept of the rule of law and its main features, you must go directly to the exercise of public authority in a legal state.

State power in the state of law is not absolute. This is due not only to the rule of law, cohesion public authorities law, but also by how organized government, in what form and how it is carried out bodies. It is necessary to turn to the theory of separation of powers. According to this theory, mixing a compound of powers (legislative, executive, judicial) in one body, in the hands of one person runs the risk of establishing a despotic regime, where no individual freedom. Therefore, in order to prevent the emergence of authoritarian absolute power, not bound by the law, these branches must be separated, divided, separated.

With the separation of powers, constitutional state is organized and operates the legal process: public authorities acting within their competence, not a substitute for each other; established mutual control, balance in the relationship between the state bodies exercising legislative, executive and judicial power.

The principle of separation of powers between the legislative, executive and judicial powers means that each government acts independently and does not interfere with the other powers. With its consistent implementation eliminates any possibility of assigning one or another power other powers. The principle of separation of powers becomes viable if it also heralded a system of «checks and balances» of the authorities. Such a system of «checks and balances» eliminates any ground for usurping the powers and authorities of the other one ensures the normal functioning of the State.

Now, based on the Constitution of the Republic of Kazakhstan consider the principle of separation of powers in Kazakhstan. Four of Article of the Constitution of the Republic of Kazakhstan states: «The state power in the Republic is one, is based on the Constitution and laws in accordance with the principle of its division into legislative, executive and court branches and their interaction with each other using a system of checks and balances». By the legislative bodies in the Republic of Kazakhstan consist of parliament of two houses: the Senate and Mazhilis, and the Constitutional Council. The executive branch in the Republic of Kazakhstan is concentrated in the hands of the President of the Republic of Kazakhstan, as well as the government authorized the Republic of Kazakhstan, which heads the executive system and provide guidance to them. The organs of the judiciary in the Republic of Kazakhstan include the Supreme Court of the Republic, the Arbitration Court and local courts of the Republic. Parliament of the Republic of Kazakhstan is a representative and legislative body of the Russian Federation. The law is considered approved by Parliament, if it receives more than half of the total membership of both Houses. Adopted by a majority vote of the total membership of the Senate draft becomes law and within ten days transmitted to the President of the Republic. President of the Republic of Kazakhstan is the head of state, guarantor of the Constitution of the Russian Federation, the rights and freedoms of man and citizen; represents the Republic of Kazakhstan within the country and in international relations; submit to Parliament a proposal for the appointment of the Chairman of the National Bank of Kazakhstan, General Prosecutor and the Chairman of the Committee Nat. security; put before Parliament the issue of resignation of the Government; forms the government of the Republic of Kazakhstan by appointment at the proposal of the Prime Minister of the Republic of Kazakhstan Deputy Prime Ministers; is the Supreme Commander of the Armed Forces of the Republic of Kazakhstan shall appoint and dismiss the Supreme Command of the Armed Forces of the Republic of Kazakhstan.

For a democratic society the principle of separation of powers is especially important and significant. It expresses not only the division of labor between the public authorities, but also moderation, «dispersal» of the government, warning her concentration, turning it into an authoritarian and totalitarian power. This principle in a democratic society implies that all three powers are the same, is equal in strength to serve as counterweights to each other and can "hold back" one another, to prevent the domination of one of them. For example, the conversion of administrative power in authoritarian and legislative -in "absolute power" in a totalitarian power to subdue and control, and justice.

In a state of law, no state agency, officer, staff or public organization, no one has the right to infringe on the law. For violations they have strict legal liability. When we talk about the rule of law as a legal act, which has supreme legal force, we mean that all laws must conform strictly to him, but officials did not shy away from his execution, much less break it. Also unacceptable «enrich» the law regulations, to invest in its content a meaning which was not foreseen by the legislator.

All legal acts issued in the Republic of Kazakhstan, may not contradict the Constitution of the Republic of Kazakhstan.

Provides for the adoption of constitutional laws concerning: the rights and freedoms of man and citizen, enshrined in Chapter 2; the system of taxes and duties (Article 35), the unitary structure of the state; the general principles of organization of representative and executive bodies, the election of the President, members of the Government, the Parliament and the formation of others.

Kazakhstan's President issues decrees and orders, which do not contradict the Constitution and binding on the whole territory of the Republic of Kazakhstan. The Government of the Republic of Kazakhstan shall issue decisions and orders and ensures their implementation. They are binding on the entire territory of the Republic of Kazakhstan and are based on the Constitution of the Republic of Kazakhstan, the laws having the force of constitutional law, regulations, decrees of the President. The Constitution of the Republic of Kazakhstan - the legal basis of all legislation, which sets out the basis for economic, social and political organization of society, establishes a mechanism for the government and management, basic rights and duties of citizens. Hence the importance of the Constitution as the Basic Law of the State. Should be possible to try to ensure that the Constitution took a real place in the legal system, had practical value. The Constitution sets out the basic positions of all parties, public and social life, so for practical implementation of its provisions are usually necessary secondary legislation detailing the constitutional provisions to the extent to which this is necessary for their implementation. However, the most important issues and the Constitution itself should be sufficiently specific to serve as a source of direct action rules, mandatory for government agencies and officials. Among such norms are those that reinforce the fundamental rights, freedoms and duties of citizens, a reality which must not be linked to the presence or absence of a special act concerning a mechanism for implementing the specified group of constitutional norms.

A careful approach to the development of legislation, on the one hand, and the willingness to make the necessary corrections and amendments resulting from real-life practice, on the other hand, the representing themselves the rules which should guide the legislator. Legislative acts, even those relating to the key aspects of public and social life, often do not meet the requirements of regulatory and warranty. Under such conditions, these acts do not become real regulator of social relations do not lead to any significant social effect, in spite of all the calls and even fight for the observance and implementation of such acts. You must install the high quality of the legislation, as well as to establish the mechanism of self-realization of legal norms, which will contribute to the establishment of the rule of law.

Concrete historical experience of formation and development of legal state is determined by socio-economic and political conditions, the level of social justice, subjective factors, national and historical traditions. One such condition is the existence of a single legal space within the boundaries of the state. Legal scholars, engaged in the development problems of law and the formation of linking its foundations primarily with the implementation of the rule of law as a basic democratic values, focusing on the concept of legal law, the need to make laws, including the Constitution, direct action, to streamline departmental and local law-making , create legal mechanisms to ensure full compliance with the law. But the implementation of these ideas is only possible if there is a single legal space as the defining conditions of formation of legal state. «War of laws», which began with the adoption of the former Soviet republics of the Declaration on State Sovereignty, one of the provisions which proclaims the priority of the Republican legislation before the union continues.

In the modern democratic state of law the legal efficacy is associated with the presence of a single legal space in which priority is the principle of the rule of law, taken on behalf of the people and expressing its sovereign will, over all operating in the country regulations. Regulations, including departmental directives, orders, regulations, subject to constitutional control. This means that they can be challenged, appealed and revoked based on violations of the law or, on the contrary, after a certain judicial process as confirmed by the Constitution and other laws.

The idea of a single legal space becomes national. In Western Europe, the concept of legal space, along with the concept of the European Economic Area, is increasingly recognized, and is expressed in the fight against terrorism, human rights, the right of asylum, the relationship between law enforcement agencies.

In a state of law, there are certain guarantees of legality, which ensure compliance with and enforcement of the law. This -social, economic, political, legal and international guarantees. Political guarantees the rule of law is a particularly democratic social and political system of the Republic of Kazakhstan, the political and ideological pluralism, active participation of citizens in managing the affairs of the state. Socio-economic guarantees legality manifold forms of ownership, creating the necessary conditions for their development, providing them equal protection, free enterprise, the right of citizens to dispose of their abilities to productive and creative work, fair employment, dismissal, remuneration and labor protection, etc. . By legal safeguards include: regulatory compliance laws or regulations of the social relations in need of legal consolidation, efficient operation of special bodies that control the observance of laws and law enforcement, legal responsibility of the persons encroaching on the rights and freedoms of citizens. By international safeguards include: activities of international organizations and specialized agencies of the UN to monitor the human rights situation in various countries, inspection visits of their representatives in the regions where broken legislation enshrining the rights and freedoms of citizens, the right of citizens to appeal to international bodies for the protection of their rights .

Law and legal state-category largely identical, but they have a few different accents. The law requires unconditional compliance by all subjects the legal sphere, while the state of law imposes such a requirement for public entities acting as a public authority. Therefore, the implementation of the legal regime of the state is the rule of law primarily in the power structures - public authorities, the control of the court and the prosecutor's office and their officials. As a result, laws and legal state leads to the conversion of the law into an independent, objective force livelihoods of which does not depend on the attitude to it.

Thus, having considered these aspects of the rule of law as a system of separation of powers and the rule of law, we come to the main function of the rule of law.

The rule of law means not only the priority of the law as a form of legal act in respect of regulations as a part of the rights and freedoms set out for members of the community legislation in force. In a state of law any infringement of human rights is unacceptable. Moreover it must consistently and rigorously to ensure the implementation of these rights and protect them. In this context, the fundamental importance of legal equality problem in various areas of society and the state. Its solution involves the creation of the state of reliable safeguards to ensure such equality.

The rights and freedoms of man and citizen, peculiar rule of law contained in international instruments. This is primarily the Universal Declaration of Human Rights adopted by the UN General Assembly on December 10, 1948. International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, adopted at the twenty-first session of the UN General Assembly on December 16, 1966.

The rights and freedoms set forth in the above acts is fixed and guaranteed by the constitutions of law. Particular importance is attached to them in the legal security of the person, which is unthinkable without the presumption of innocence. The presumption of innocence means also that a truly democratic state recognizes that all issues relating to the guilt or innocence of citizens in the commission of a crime, should be dealt with only through the courts. Moreover, in criminal proceedings which may be sentenced to death, a citizen has the right to demand that his judge jury. The Republic of Kazakhstan is reflected in Article 75 of the law of the Constitution of the Republic of Kazakhstan.

The Universal Declaration of Human Rights and Freedoms, adopted by the UN in 1948, consists of 30 articles. It declares that «all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood». It further states the inadmissibility of cruel, degrading, treatment and punishment. Article 6 of the Declaration recognizes the right of everyone to recognition before the law, ie, of a person to acquire rights and to carry out the duties stipulated by the legislation.

The declaration also states that no one shall be subjected to arbitrary arrest, detention or exile, that everyone has the right to equal protection of the law, in a vowel, fair and impartial trial. The Declaration also states the inadmissibility of arbitrary interference in private and family life of citizens, attacks against the safety of their homes, correspondence, etc. It fixes and other human rights and freedoms that should be recognized and respected by all states (freedom of thought, conscience and religion, freedom of movement within each state, the right of asylum in other countries, the right to work, equal pay, the right to free choice profession, the right to protection against unemployment, the right to form trade unions, etc.). Political and ideological pluralism - the hallmark of the rule of law. Without such pluralism is simply unthinkable. Functioning in the face of such pluralism, various social forces in the face of their political organizations are fighting for power in the state in a civilized manner, in an honest confrontation with their political opponents. Ideological pluralism provides them with the opportunity to freely express their software setup, freely conduct propaganda and agitation in favor of their ideological concepts.

Political and ideological pluralism is an expression of the embodiment of democracy and society, allows each member to decide the question of their commitment to one or another political organization and ideological bias.

This explains why the state should not impose on society any one ideology or create an advantage for one or another political organization.

All the rights and freedoms listed in the Declaration must be provided in a real state. This is achieved primarily adoption and implementation of a variety of laws that perpetuate them in the relevant field of public relations. Among the international human rights instruments should also specify the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child.

In Kazakhstan, all are equal before the law and the courts. The Constitution declares the inadmissibility of the use of the rights and freedoms to infringe on the constitutional order, the rights and freedoms of other persons, the inadmissibility of the deprivation of human rights and freedoms and their limitations.

Literature:

1. The current state and the right. Theory and History, 1992. Vladivostok: V.P.Fedorov - Modern ideas of the rule of law,

2. V.I.Dymchenko. On the relation of law and the rule of law.

3. T.A.Gumenyuk. On a single legal space as a condition of formation of the rule of law.

4. A.I. Kovalenko. Theory of State and Law, Moscow, 1994.

5. A.I. Kovalenko. Legal State: concept and reality, Moscow, 1993.

6. S.S. Alekseev. State and Law, 1993. Legal literature.

7. The Constitution of the Republic of Kazakhstan.

8. Presidential Decree having the force of constitutional law «On Courts and Status of Judges» from 20^th of December 1995.

9. N.I. Matuzov and A.V. Malko. Theory of law; Jurist; Moscow 1997