частью общественных отношений. Кроме
того, они выступают нормативной формой
выражения самой меры свободы граждан,
координации их поступков, упорядочения
их взаимосвязей, избежание конфликтов и
противоречий. Права и свободы человека,
уровень правовой культуры - это мерило
зрелости демократических и правовых основ
любого государства, показатель его способности
обеспечить людям достойной жизни совершенно
в разных сферах их жизни - личной, социальной,
экономической, политической, культурной.
Совокупность естественных (неотчуждаемых)
прав человека - это способность индивида
свободно самореализоваться как в обществе,
так и в государстве, причем эти «способности»
образуются посредством правовой культуры, а
формулируются и закрепляются в нормативно-
правовых актах (Конституция, законы).
Список литературы
1. Аграновская Е.В. Правовая культура и обеспечение прав личности. - М.: «Наука», 1988. - 145 с.
2. Соловьев А.И. Три облика государства - три стратегии гражданского общества // Полис. - 1996.
- №6. - С. 29-30.
3. Пермяков Ю.Е. Лекции по философии права - Самара: Изд-во «Самарский университет»,
1995. -120 с.
4. Халфина Р.О. Общее учение о правоотношении. - М.: «Юридическая литература», 1974. -
350 с.
5. Нерсесянц В.С. Философия права. - М.: «НОРМА», 2003. - 652 с.
6. Жамулдинов В.Н. Учебно-методическое пособие «Казахстанское право». Павлодар. - Изд.
ПГПИ. - 2013. - 40 с.
Конституционное и административное право
№ 3 (35) 2014 ж. Қазақстан Республикасы Заңнама институтының жаршысы
66
7. Дидыч Т.О. Вестник Института законодательства Республики Казахстан от 27 июля 2012 г. -
№ 2 (26). - С. 7.
Осы мақала Қазақстан Республикасында азаматтық қоғам қалыптастыру үрдісінде
қазақстандық және шетел авторларының құқық табиғаты, құқық мәдениеті, оның құндылықты
бағыттары мәселелері бойынша ғылыми зерттеулері негізінде жазылған. Мақалада азаматтық
қоғам қалыптастыру мәселелері қарастырылады, аталған феноменге түрлі түсініктер беріледі.
Соңында азаматтық қоғамның басты принципі тұлғаның қоғамда еркін және жан-жақты дамуы,
сондай-ақ азаматтың өзінің міндетін түсініп, құқықтар мен еркіндіктердің жиынтығымен және
де қоғам алдында өз әрекеттері үшін жауапкершілік міндеттерімен қамтылған қоғамның еркін
мүшесі болып табылуынан азаматтық қоғам басталатыны туралы қорытындылар жасалады.
Түйін сөздер: құқықтық мәдениет, демократиялық мемлекет және оның құндылықтары,
азаматтық қоғам, Қазақстанның құқықтық реформаларының сипаттамасы, «адамның ажырамас
құқықтары», адам тұлғасының абсолюттік құқықтары.
Даная статья написана на основе научных исследований казахстанских и зарубежных
авторов по вопросам природы права, правовой культуры, ее ценностных ориентиров в процессе
формирования гражданского общества и правового государства в Республике Казахстан. В
статье рассматриваются вопросы, связанные с формированием гражданского общества, даются
различные определения данному феномену. В заключении делаются выводы о том, что главным
принципом гражданского общества выступает свободное и разностороннее развитие личности в
обществе, а также что гражданское общество начинается с момента появления гражданина как
свободного члена общества, осознающего свое предназначение, наделенного совокупностью прав и
свобод, обязанностью нести ответственность за свои поступки перед обществом.
Ключевые слова: правовая культура, демократическое государство и его ценности, гражданское
общество, характер правовых реформ Казахстана, абсолютные ценности человеческой личности.
This article is based on research of Kazakhstan and foreign authors on the nature of law, legal culture,
its value orientations in the formation of civil society and the rule of law in the Republic of Kazakhstan. The
article discusses issues related to the formation of civil society, are different definitions of this phenomenon.
It concludes that the main principle of civil society advocates free and comprehensive development of the
individual in society, and that civil society starts with the appearance of the citizen as a free member of
society who is aware of its purpose, endowed with a set of rights and freedom and the duty of responsibility
for their actions to the society.
Keywords: legal culture, democratic state and its values, civil society, nature of legal reforms of
Kazakhstan, absolute values of the human personality.
Арман Серікұлы Ахметов,
Павлодар мемлекеттік педагогикалық институтының доценті, философия докторы (Ph.D)
Адам және азаматтың құқықт пен бостандық контекстіндегі құқықтық мәдениеті
Ахметов Арман Серикович,
доцент Павлодарского государственного педагогического института, доктор философии (Ph.D)
Правовая культура в контексте прав и свобод человека и гражданина
Akhmetov Arman Sericovitch,
Pavlodar Pedagogical State Institute, associated professor, Ph.D
Legal culture in the context of the rights and freedoms of man and citizen
● ● ● ● ●
67
Гражданское и гражданско-процессуальное право
Erbolat Elubay,
Senior Researcher, Department of the criminal,
criminal procedure, penal legislation and forensic
examination of the Institute of Legislation
Rassul Moldabayev,
Kazakh Humanitarian and Law University
PROBLEMS OF THE PERMIT SYSTEM IN THE REPUBLIC
OF KAZAKHSTAN RELATED TO ENTREPRENEURIAL ACTIVITY
(Проблемы разрешительной системы предпринимательской
деятельности Республики Казахстан)
Introduction.
In Kazakhstan, certain entrepreneurial activities
are controlled by the government and it is
necessary to obtain permission for such activities.
The types of permissible documents include
licenses, accreditation certificates, certification,
determinations, approvals, and other documents.
Permissible documents grant individuals and legal
entities the right to conduct certain activity or carry
out certain operations.
The permit system is a complex social and
legal phenomenon. On the one hand, permission
is a sequence of actions targeting the granting
permission to an economic actor for conducting
certain entrepreneurial activity, and, on the other
hand, it is a sequence of supervisory activities
carried out by authorized public bodies with respect
to the economic actor to ensure its compliance with
certain requirements and conditions dedicated to
protect social and economic security.
The government warrants freedom of
entrepreneurial activity and ensures its protection
and support. One of such warranties is the
prohibition of intervention of the government or
its executive bodies in the business activity of an
enterprise, except for cases stipulated by law and
within the competence of the bodies.
In the course of the economic reform of 1990s
and transition to the free market economy, the
system of the economy administration changed
drastically. The regulatory bodies instead of setting
plans by command from higher levels, assigning
objectives and strict controlling their fulfillment,
now influence the economy through loans, taxation,
licensing of certain entrepreneurial activities, price
policy, product and services certification, prevention
or restriction of monopolistic position of certain
entrepreneurs in the market, and prevention of unfair
competition [1].
Governmental regulation includes support
of entrepreneurship not only by financing, but
also by improving business climate and reducing
administrative barriers, which impede business
development.
In the modern law science, the concept of a
permit system is approached in different ways.
According to D.N. Bakhrakh, the permit system
is the legally regulated total of social relations
between administrative bodies on the one hand
and citizens and organizations on the other, which
relations arise in connection with the issuance of
permissions for conducting certain activities and
further supervision over the compliance with the
rules and conditions of conducting such permitted
activity [2]. D.V. Osintsev also defined it as a specific
type of governmental and managerial relationship,
which involves authorization, or formal recognition
of the access of businesses to spheres of activity,
which require professional compliance with various
qualification and administrative requirements
oriented to prevention of negative consequences
[3]. A.B. Bagandov determines the permit system
as a type of administrative activity, which includes
granting permissions to specially protected objects
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68
of the permit system, supervision over compliance
with rules of the permit system, taking administrative
actions and drawing up documents for bringing
violators of the permit system to responsibility [4].
Permit system is the legally regulated total of
social relations between administrative bodies on
the one hand and citizens and organizations on the
other, which arise in connection with the issuance
of permissions for conducting certain activities and
further supervision over the compliance with the
rules and conditions of conducting such permitted
activity [5].
Methodology.
The formally logical method of research
traditional for legal science was used as the basic
method in this article. In the research, other special
methods were used, as well, including functional
analysis of legal phenomena, systemic and structural
approach, and historical analysis.
Body of the work.
In the circumstances of market establishment in
the Republic of Kazakhstan, a new permit system was
formed, which presently generates certain problems
in the form of chaotic nature of the existing permit
system. During the transitional period of legislation
formation, public bodies introduced a huge number
of various permission obtaining procedures. Many
permissions do not perform their initial functions
and are morally outdated (their life cycle is over).
Analysis of permissible documents shows
that often both their various names are used as
interchangeable concepts (i.e. having functionally
identical meaning, e.g.: act of examination and
certificate of examination), and various functional
meanings of the same term are used (e.g.: qualification
certificate and certificate of registration). Due to this
reason, current legislation is not able to provide
complete functional definitions of these terms. The
variety of terms leads to the variety of permissions,
and results in their arithmetic increase for particular
businesses.
One of the problems of the permit system is the
complexity of the permit law. According to Article
10 Clause 2 Sub-Close 1 of the Civil Code of the
Republic of Kazakhstan, the rights of entrepreneurs
who conduct legally permitted activity are protected
with the possibility to conduct entrepreneurial
activity without obtaining any permissions, except
for licensed activities [14]. The Code also stipulates
that the licensing of particular activities be set forth
with the purpose of ensuring national security, law
and order, and protection of environment, property,
life and health of citizens.
Despite the above-mentioned clauses of the
Code, the legislation stipulates plenty of various
permissions, which are not licenses.
In fact, the permit legislation does not consist
of only the Law of the Republic of Kazakhstan
On Licensing, but also of a large number of other
regulatory acts, which specify other types of
permissions.
In his Presidential Address to the people of
Kazakhstan dated January 27, 2012, the President
of the Republic of Kazakhstan N.A. Nazarbaev
emphasized the importance of rendering high quality
public services and associated it with the reform of
the permit legislation [15].
The reform of the permit system is complicated
by the fact that there are multiple regulatory acts,
which stipulate the order of permissible procedures.
Existence of these problems is predetermined
by absence of unified approaches to permissible
documents and procedures in Kazakhstan.
For the past decade, the government has done a
large work on improvement of the permit system.
By now, several consequent reforms have been
accomplished.
In order to reduce administrative barriers, on
December 27, 2002, the Decree of the Government
“On Announcement of Moratorium on Auditing
Small Businesses During the Period between
January 1 and October 1, 2003” was enacted, which
directed central and local executive bodies to cease
auditing small businesses [6].
In 2004, decentralization of the licensing
procedure took place with respect to a large number
of licenses, which were transferred the level of local
executive bodies.
On January 31, 2006, the Law of the Republic
of Kazakhstan “On Private Entrepreneurship”
was adopted, stating main legal, economic and
social conditions and warranties, which would
ensure the freedom of entrepreneurial activity [7].
The law targeted the regulation of the legislative
determination of the interaction order between
private entrepreneurs and public bodies, which
perform controlling and supervising functions.
The law stated a limiting list of audit types
applicable to private entrepreneurs, the order of
their organization, intervals between them, and their
duration.
In 2007, the new Law of the Republic of
Kazakhstan “On Licensing” was adopted, which
accounted best world practices, and main principles
of this law even nowadays stay up-to-date (silence
means consent, the principle of one window, and
others).
In 2008, the development of the governmental
69
E-Licensing database started, which was to ensure
complete automation of licensing procedures.
According to the order of the President on
normalization and optimization of audits, the
Government enacted Decree #178 dated February
21, 2008, which announced the moratorium on
audits of small and medium businesses [8].
In 2009, the moratorium on audits of small and
medium businesses was extended until July 1 by
Decree of the Government #176 dated February 17,
2009 [9].
On July 17, 2009, the Law “On Introducing
Changes and Supplements into Certain Legal Acts
of the Republic of Kazakhstan Concerning Private
Entrepreneurship.” Amendments were made in 72
legal acts, including eight codes [10].
For the first time, a unified law stated the general
order of auditing for almost all public bodies
(excluding the National Bank, the Agency for
Protection of Competition, the Audit Committee
and power-wielding bodies). The law updated the
principles and tasks of governmental supervision
over private entrepreneurs, defined the goals,
subject and forms of audits, stated the unified order
of audits, and systematized the types of audits and
grounds for initiating audits.
The business was granted additional opportunities
to protect their rights during audits, including:
- registration of the auditing process;
- engagement of third parties in audits;
- non-admission to audit of any public body
officials in case of material violation of the order of
initiation and conduct of the audit;
- facilitation of the liquidation procedures with
respect to small businesses, which belong to the
medium and low risk groups:
- the right to demand for admitting the results of
an audit invalid in case of material violations of the
order of its conduct and organization;
- participation in the COR through accredited
associations under Expert Councils.
In 2009, the Concept of further reforming of the
permit system in 2009-2011 (hereinafter referred
to as the Concept 2009-2011) was developed and
approved, which prescribed to carry out complete
inventory of the permit system following the
“guillotine” principle. In order to implement the
“guillotine” method, an appropriate methodology
was developed in Kazakhstan and a group of experts
was created for optimization of decisions. It is to
be noted that the Concept 2009-2011 did not state
any precise definition of a decision. In other words,
the precise frames for further work had not been
determined initially.
Since 2010, the planning and conduct of
audits has been carried out on the basis of the risk
assessment system, which assumes that every public
body must determine where violations cause more
serious consequences and where they do not, and
then break up entrepreneurs into the following risk
groups: high risk, medium risk and insignificant risk
groups. Depending on the risk group, the public
bodies are to audit the most risky businesses, which
will improve the efficiency and reduce the pressure
on business. Entrepreneurs of the high-risk group
must be audited every year, of the medium-risk
group - once in three years, and of the insignificant-
risk group - once in five years.
In order to implement the Concept 2009-2011,
on July 15, 2011, the Law was enacted, according
to which 348 permissible documents (procedures)
were cancelled, and the procedures of issuing
permissions were facilitated by cutting time
expenditures and expenses of businesses. For the
first time, the unified order of notification on the
commencement of entrepreneurial activity was
enacted instead of multiple cancelled permissible
procedures of informational nature. Along with
cutting permissions, facilitation of permissible
procedures was provisioned by means of:
1) popularization of the “one window” principle
with respect to approving licenses with all public
bodies;
2) popularization of the “silence means consent”
principle with respect to all permissions;
3) statement of a unified term of license issuance
– 15 business days;
4) verification of submitted package of documents
for integrity – within two days;
5) cancellation of mandatory notarization of
documents [11].
On July 10, 2012, the President signed the Law,
which stated reduction of the number of licenses and
permissions by 30% more, issuing licenses in an
electronic form, and the notification procedure basis
for particular permissions, as well as cutting the list
of control and supervisory functions of public bodies
and optimizing audits of businesses. The above law
cancelled 257 types of permissions, which had not
influenced the level of security with respect to top
threats, out of 1096 revealed permissions, and stated
the notification procedure for 40 permissions, which
were not associated with direct danger to life and
health of people and were of informational nature
[12].
Currently, in order to normalize the whole permit
system, the new Concept of further reforms of the
permit system in 2012-2015 (hereinafter referred to
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70
as the Concept) has been approved [13].
The main principle of the Concept is the
implementation of an Integrated Permit System,
which would prescribe classification of permissible
documents and their categorization by hazard levels.
Within the framework of the Concept and
adoption of the draft Code of Entrepreneurship of
the Republic of Kazakhstan, the following problems
of the permit system are going to be solved:
- absence of balance between interests of the
government, the business and consumers;
- non-application of risk management systems in
the permissible practice of Kazakhstan;
- continuous and uncontrolled increase of the
number of permissible documents and absence of
reliable statistics in the permit system;
- absence of efficient implementation of the
reforms, which are currently carried out.
Conclusion.
In order to solve the above-mentioned problems
in the permit system, it is necessary to work out the
solution methodology and to approach the problem
solution in a comprehensive manner.
When the draft Code of Entrepreneurship is
adopted, the problem of complexity of the permit law
will be generally solved. For example, Article 34 of
the draft Code of Entrepreneurship states a limiting
list of permissible documents for conducting certain
entrepreneurial activities.
Chapter 7, Liability in the Sphere of
Entrepreneurial Activity, of the draft Code of
Entrepreneurship is stated very precisely and
intelligently. The current legislation still provides
public bodes with sweeping powers along with
insufficient level of their responsibility. Public
bodies are not at all responsible for the permissible
procedures, which they enact, and which do not
achieve the objectives of their enactment.
Moreover, public bodies are not even responsible
in case when after they have issued a permissible
document, confirming the safety of the conducted
activity, negative consequences still ensue, despite
the fact that the occurrence of such consequences
must have been prevented by this permission. This
situation significantly affects the efficiency of the
government regulation, and, sometimes, enacted
measures have the reverse effect. And the whole
burden of responsibility and, accordingly, the
expenses is shifted to the entrepreneur who, in his
turn, shifts the expenses to consumers. Consequently,
the unbalanced permit system leads to soaring
corruption at the background of diminishing the
consumers' rights. However, upon enactment of the
Code of Entrepreneurship, the situation is to change
for better.
Summary.
We find it necessary, first of all, to normalize
the permit system by using unified principles and
approaches and, if necessary, to introduce new
principles in the permissible legislation and in the
draft Code of Entrepreneurship in order to improve
the efficiency of the government regulation of
entrepreneurial activity. Second thing to be done
is to exclude the corruptive element of the permit
system. Thirdly, it is necessary to implement the risk
management system in the law enforcement practice
in Kazakhstan and to limit the uncontrolled increase
of the number of various permissions.
Implementation of the above-mentioned
suggestions will result in optimal functioning of
public bodies, strengthening of social control in this
sphere, encouragement of voluntary law-obedience
of entrepreneurs, and create good environment for
stable conduct of business and conduce further
energization of entrepreneurs.
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