They are not sub-branches of financial law. Financial law as a system

Financial law consists of many separate financial and legal norms, which are grouped into various institutions and other divisions, forming unified system this industry. This grouping has an objective basis, that is, it depends on the content and characteristics of the regulated relations. At the same time, to build a system financial law, the grouping of its norms, the formation of institutions, sections and sub-sectors are influenced by the needs of practice, the tasks of effective application of the norms of this branch of law.

Hence, system of Russian financial law- this is its internal structure, the combination and arrangement of financial and legal norms in a certain sequence, objectively determined by the system of social financial relations.

The system of financial law is divided into parts, sections, sub-sectors, and institutions. The largest divisions of Russian financial law are the General and Special parts. The justification for the need to identify them and the definition of the content of each of them relates to important achievements domestic legal science. However, work in this direction requires continuation and deepening, taking into account new phenomena in the life of society and the state.

General part of financial law

TO General part include the rules of financial law that establish the basic principles, legal forms and methods financial activities states and municipalities, the system of government bodies carrying out financial activities, and the delimitation of their powers in this area, the main features financial and legal situation other entities with whom they enter into relationships, general provisions on the organization of financial control, its forms and methods and other similar financial and legal norms. They operate on the scale of all financial activities of the state (municipalities) and have general significance for it.

Special part of financial law

The rules of the General Part of Financial Law are specified in its Special part. The special part consists of several sections and sub-sectors, including relevant financial and legal institutions. Each of these divisions is a set of financial and legal norms that regulate a group of homogeneous financial relations, but on different scales. Financial and legal institute combines legal norms regulating a group of financial relations that is narrower and similar in content than a section or sub-sector. The latter, also based on the homogeneity of regulated relations, but of broader content, unite several financial and legal institutions, which may be more or less large. All relationships that are generally under the influence of the financial law system are characterized by common distinctive features, regardless of entry into one or another of its divisions.

IN Lately individual divisions of financial law began to be called its sub-sectors. These are, in particular, budget law and tax law. The named sub-sectors received a clearer design and developed structure in the system of financial law, compared to other divisions, which was reflected in the adoption of the Budget Code of the Russian Federation and the Tax Code of the Russian Federation. In the totality of the norms of these sub-sectors, in particular, the norms are highlighted general(general provisions), which is typical large divisions branches of law (such as inheritance law in civil law).

Sub-branches of financial law may include chapter. For example, tax law is included in the section “Legal regulation of state and municipal revenues”consisting, in addition to the institutions of tax law, also of the institutions of non-tax revenues. However, in general, in financial law there is no such consistent grouping of legal norms into sections, sub-sectors and institutions; it exists only in theory. Currently, the issue of the content of the Russian financial law system is one of the controversial issues.

The Special Part of Financial Law includes sections that group rules governing relations in the area of:

• budget system;
• off-budget state and municipal monetary funds;
• finances of government and municipal enterprises; organizations and institutions;
• state and municipal revenues;
• state and municipal credit;
• insurance business organizations;
• government and municipal expenses;
• bank lending;
• organization of money circulation and settlements;
• currency regulation;
• state regulation of the financial market (financial services market).

The system of financial law reflects the financial system of the Russian Federation as an objectively existing economic category. The unity of finance received legal expression in the General Part. The construction of the Special Part reflects the composition of the financial system, the identification of individual links in it. As a result, the budget system, state, municipal and Bank loan, insurance organization received legal registration in the form of relevant sections of financial law.

In previously published textbooks in the system of financial law, there was no structural section devoted to the legal regulation of enterprise finance, although individual issues The functioning of this link has been covered previously. Objectively, the need for its legal expression follows from the presence of the corresponding link in the financial system, which has been repeatedly noted in the legal literature. For the first time, such a section was highlighted in a textbook on financial law in 1987. With the advent of such a link in the Russian financial system as state and municipal extra-budgetary funds, the corresponding section began to be highlighted in the system of financial law.

Analyzing the system of modern Russian financial law and its content, it should be noted that recently in scientific literature a proposal is made for a significant, fundamental change in it, namely, to separate from it the sub-branches of budget and tax law, as well as some other divisions (institutions) as independent branches of law. In fact, this will result in a change subject of financial law. This position does not take into account fundamental principles on which the system of financial law is built: we are talking about unity of the financial system as an objective economic category, close interconnectedness and interaction of its links. However, due to the sharp increase in the volume of budgetary and tax legislation it is advisable to highlight educational courses « Budget law», « Tax law"etc., as well as, for ease of use, the corresponding industry legislation va when classifying it (since the branch of legislation, unlike the branch of law, is characterized by a complex nature).

The scientific validity of the legal system and its construction on the basis of objectively existing relations contribute to the most effective application financial and legal norms. As a result, the field of financial law is given an active role in the development of society and the state.

In order to better understand what the system of financial law is, you need to understand the concept of “finance,” which is key within this topic. So, in economic literature, as in legal science, the concept of “finance” can have two meanings. According to the first, finance is a set of certain economic relations, which usually arise during distribution and further use various monetary funds. The second meaning defines finance as a set of monetary funds mobilized state power to carry out a number of tasks.

Thus, finance is viewed to a greater extent not as money, but as a relationship between people during transactions with them. Finance is a means of distribution national income, distribution control Money country, stimulating the development of the country.

The rules of law that regulate financial activities are grouped into a number of legal institutions, on which, in fact, the this structure legal system. Institutions are interconnected groups of legal norms that govern social relations within a type of law.

Since financial laws are established by the state, the system of financial law consists of 2 parts - a general part and a special one.

The general part includes norms regulating and describing the general forms, principles and methods of financial activities, the system of government bodies that carry out these activities, legal status bodies and position of subjects of financial relations. The general part also relates to issues of financial control management and the principles that underlie foreign institutions of financial law.

In a special part, the institutions of financial law are described in a clear sequence. It is established here that the main institution is the one that accumulates all the main state powers that support the activities of the government. There are also off-budget monetary funds, which also belong to centralized finance. Let us note that the legal institutions that regulate relations in this area are considered basic and stand out from other financial and legal institutions.

Since the system of financial law is based on the budget, that is, state revenues and expenses, this area has its own institution - the institute of state revenues. It has rules that regulate tax relations physical and legal entities. State revenues include institutions that combine legal and financial standards, regulate decentralized monetary funds, as well as regulations regarding state insurance and lending.

In order for the state’s financial system to function normally, it is necessary not only to accumulate income into funds of money, but also to spend it wisely. Okay, next one legal institute- the institution of government spending, which includes bank lending, budget financing, and insurance.

Since financial activity is based on money circulation, currency legislation is of great importance in the system of financial law.

To summarize, it should be noted that the system of financial law is a unique reflection of the unified financial system existing in the state. Its general part enshrines the main phenomena and concepts of state financial activity, features of legal norms in financial relations, and financial and legal institutions. The special part characterizes these institutions in a certain sequence. The principles of financial law are the basis for studying the discipline and conducting financial activities in the state.

The relations that constitute the subject of financial law are very extensive and heterogeneous. Among them there are groups public relations, expressing one or another aspect of public financial activity. Accordingly, the rules of financial law are also heterogeneous. They are objectively divided into separate groups within the subject of financial law, which are closely interrelated and interdependent.

A set of fairly separate but interdependent groups of financial and legal norms that exist and develop within the framework of financial law as a branch of law form the system of this branch of law.

Groups of financial and legal norms that are objectively distinguished within the framework of financial law represent sub-branches of financial law and financial and legal institutions.

A financial and legal institution should be understood as a legislatively separate set of legal norms that ensure comprehensive regulation a certain group of social relations . The sub-branch of financial law is characterized by the presence of several legal institutions in its composition with the simultaneous highlighting of some “general provisions”" , characteristic of all institutions included in the sub-sector.

Speaking about the system of financial law, one should distinguish between the concepts of a system of financial law as a branch of law and a system of financial law as a science and academic discipline.

In the science of financial law, there are General and Special parts. However, the General Part is not an element of the system of financial law as a branch of law, because it does not include rules of law that directly regulate certain relations. In this sense, it is fundamentally different from the General Part in criminal and civil law. The general part of financial law includes scientific conclusions about the concept of financial law, the moral system, the features of financial legal norms and relations, and thus has a propaedeutic character, i.e. is an introductory course to financial law as academic discipline and science.

In the system of financial law as a branch of law, the following sub-branches of law and legal institutions are distinguished.

1. Budget law is a sub-branch of financial law, firstly, because it includes a huge array of financial and legal norms. Most of These norms are contained in the Budget Code of the Russian Federation, in the annually adopted federal law on federal budget on this year, other laws and by-laws, as well as decisions of bodies local government concerning budgetary sphere. Secondly, budget law regulates a variety of social relations, which are combined into various legal institutions. Among them: the legal institution of budget structure and its balance; Institute of Budgetary Process; institute interbudgetary relations; Institute of Budget Expenditures. The institution of budget expenditures in the system of financial law has been taken outside the boundaries of budget law for many years. Currently, several reasons have emerged that require the introduction of this institution into the system of budget law as a sub-branch of financial law. The main one is that the institution of budget expenditures, being a substantive and legal institution, is implemented with the help of budgetary procedural rules establishing the execution of the budget for expenditures. As is known, budgetary procedural norms constitute the institution of the budgetary process, which is traditionally included in the system of budgetary law. These norms have been developed in modern budget legislation. In this regard, the scattering of material and procedural norms that support them across various divisions of the financial law system is not logical and does not ensure the coherence of both the financial law system itself and the effectiveness of its research. In addition, one should not lose sight of the fact that, in a broad sense, budget expenditures also represent interbudgetary transfers in the form of grants, subventions, subsidies and others allocated from one budget to another (Article 69 of the Budget Code of the Russian Federation). Considering that the relationship interbudgetary transfers are included in the legal institution of interbudgetary relations, which is integral part budget law as a sub-branch of financial law, there is no reason to allocate other budget expenses beyond the boundaries of budget law. All of the above arguments in favor of introducing the institution of budget expenditures into the sub-branch of financial law are strengthened by the non-categorical place of this institution in the system of financial law, which was noted by Soviet scientists.

Institute of State Extra-Budgetary Funds closely related to budget law. This institution appeared in the system of financial law relatively recently in connection with the formation of state extra-budgetary funds in the financial system of the Russian Federation and their legal regulation. These primarily include: the Pension Fund of the Russian Federation; Fund social insurance RF; Federal and territorial mandatory funds health insurance RF. The institution of state extra-budgetary funds includes norms regulating the procedure for the formation and execution of budgets of state extra-budgetary funds. This institution intersects with the sub-branch "budgetary law" through the financial and legal institute of the budget process.

2. Tax law formed the sub-branch of financial law as recently as the late 1990s. Economically, this was due to Russia’s transition to a market economy and, accordingly, the emphasis tax method V government regulation economy.

Tax law is a sub-branch of financial law, firstly, because it includes a whole array of financial and legal norms, some of which are contained in the Tax Code of the Russian Federation. In addition, the rules of tax law are contained in federal laws and laws of the constituent entities of the Russian Federation on taxation issues, in the by-laws regulations, as well as in resolutions of representative bodies of municipalities. Secondly, the set of legal norms that make up tax law is relatively heterogeneous. It is divided into a number of financial and legal institutions, among which can be distinguished: tax control; institute federal taxes; Institute of Regional Taxes; institute of local taxes, etc. Thirdly, tax law distinguishes whole line norms that constitute “general provisions” and are implemented equally in all tax and legal institutions. These are rules that establish the basic principles of legislation on taxes and fees, participants in tax legal relations, defining the concept of tax and fee, etc.

Institute of Non-Tax Budget Revenues is very closely related to tax law as a sub-branch of financial law, because, like this sub-branch, it regulates relations to provide the state and municipalities with income.

Finally, in last years In connection with the expanding appearance of parafiscal fees in the Russian financial system, it has become possible to talk about parafiscal fees as a financial and legal institution.

• 3. In addition to everything noted, in financial law there are the following legal institutions.
• Institute of Finance of State and Municipal Unitary Enterprises, being complex. It includes part of the norms that are simultaneously included in other financial and legal institutions (sub-sectors), namely: the institution of non-tax revenues; sub-sector "budget law"; sub-sector "tax law", etc.;
• fundamentally new is the financial and legal institute state corporations, having a complex nature, as well as Institute of Finance of State and municipal institutions;
• Institute of State and Municipal Credit, which is a comprehensive intersectoral legal institution. Those rules of law that regulate within the framework of this institution the relations included in the subject of financial law constitute the financial and legal institution of the same name. IN Soviet time it stood out as part of the financial law section" Government revenues". Currently, it cannot be included in this section, since according to the Book Code of the Russian Federation financial resources states received under a state loan do not strictly belong to budget revenues (Article 41 of the Code). These financial resources especially do not relate to the income of state extra-budgetary funds and other state income (Article 146 of the Budget Code of the Russian Federation). However, financial resources received by the state and municipalities under state and municipal loans are sources of financing budget deficits (Articles 94–96 of the Budget Code of the Russian Federation).

In recent years, the sub-branch of state and municipal financial control has begun to stand out in the system of financial law. E. Yu. Gracheva distinguishes General and Special parts in this sub-branch. The General Part includes norms establishing the system, types of state and municipal financial control, methods of implementation, etc. The Special Part of the sub-industry includes rules governing the conditions and procedure for its implementation in certain areas of financial and legal regulation: budgetary; tax; foreign exchange transactions etc. In modern conditions, as a rule, a common part sub-sectors of state and municipal financial control for educational purposes are included in the General part of the financial law course.

The financial system of the Russian Federation is very closely connected with the banking system of the Russian Federation. In this regard, many relations in the field of banking, settlements, and money circulation are in one way or another connected with the relations that constitute the subject of financial law and are regulated by financial morality. Due to this, financial law traditionally distinguishes: financial and legal institute of banking; financial and legal institute of monetary circulation and settlements; financial and legal institute of currency regulation and currency control.

The financial law system is actively developing and requires scientific study. There is a tendency to distinguish in the system of financial law the institution of financial and legal responsibility, the institution financial statements etc.

• Cm.: Alekseev S. S. Problems of the theory of law: a course of lectures. Sverdlovsk, 1972. T. 1. P. 140.
• See: Ibid. P. 141.
• Cm.: Belsky K. S. Financial right. M., 1995. P. 17.
• IN educational literature The concepts of “the system of financial law as a branch of morality” and “the system of financial law as a science” are often confused. In this regard, in financial law as a branch of law, there are General and Special parts. Moreover, as a rule, such conclusions are confirmed by reference to one of my early educational works(see: Financial law: textbook / edited by N. I. Khimicheva. M., 2003. P. 51). In modern conditions, my views on the system of financial law have undergone a change, and do not correspond to previously drawn conclusions, which is not the first time that has been noted (see: Financial Law of the Russian Federation / edited by M. V. Karaseva. M., 2006. P. 58). As for the identification of the General Part in the system of a branch of morality, such a phenomenon, as a rule, becomes possible only when the branch of legislation of the same name arises, represented by a single codified act dividing the norms into General and Special Parts. This occurs, in particular, in criminal and civil law (see: Administrative Law: textbook / edited by Yu. M. Kozlov, L. L. Popov. M., 1999. P. 50–51; Alekseev S. S. Law: ABC – theory – philosophy. M., 1999. P. 261).
• Cm.: Tsypkin S. D. Financial and legal institutions, their role in improving financial activities Soviet state. M.. 1983. P. 26.
• For more details see: Ch. 9 textbooks benefits.
• See: Soviet financial law / ed. L.K. Voronova, II. I. Khimicheva. M., 1987.
• Cm.: Gracheva E. Yu. Problems of legal regulation of state and municipal financial control. M., 2000. S. 111 – 117.

Financial right, being a branch of law, consists of many separate financial and legal norms, which are grouped into various institutions and divisions, uniting into a single system. The classification of financial and legal norms in the system has an objective basis - it depends on the characteristics of the regulated relations. Despite this, the construction of a system of financial law, the grouping of its norms, and the formation of institutions are influenced by the needs of practice.

System of Russian financial law- this is its internal structure, the combination and arrangement of financial and legal norms in a certain sequence, objectively determined by the system of financial relations.

The system of financial law is divided into parts, sections, sub-sectors, and institutions. The largest components of Russian financial law are parts: General and Special. Isolating them and defining the content of each of them is an important achievement of legal science. The General Part contains general, fundamental provisions that apply to the entire branch of financial law (for example, the principles of financial activity must be observed when implementing currency, budget, tax and other legislation), and the Special Part focuses on specific features separate groups relations, i.e. tax law, budget law, etc.

The financial system of the Russian Federation is reflected in the system of financial law as an objectively existing one. IN General part the unity of finance was reflected. TO General part refer to the rules of financial law that establish the basic general provisions: basic principles, legal forms and methods of financial activity of the state and municipalities; the system of government bodies carrying out financial activities and the delimitation of their powers in this area; the main features of the financial and legal status of other entities with which they enter into relationships; organization of financial control, its forms and methods and other financial and legal norms that extend their effect to the financial activities of the state (and municipalities) and have general significance for it.

General Part Norms financial law are specified in its Special Part. The special part consists of the following sections and sub-sectors (budget law and tax law), which include the corresponding financial and legal institutions (bank credit, government revenues). The above sub-sectors received a clearer design and developed structure in the financial law system in comparison with its other divisions, which resulted in the adoption of the RF Budget Code and the RF Tax Code.

All divisions represent a set of financial and legal norms governing a group of homogeneous financial relations. A financial and legal institution unites legal norms that regulate a group of financial relations that is narrower and similar in content than a section or sub-sector. The latter, due to the homogeneity of regulated relations, includes several financial and legal institutions (Tax law - value added tax, liability for violation of tax laws, etc.).

IN Special part financial law includes sections that group rules governing relations in the field of:

– budget system;

– extra-budgetary state and municipal monetary funds;

– finances of state and municipal enterprises;

– state and municipal revenues;

- taxes and fees;

– state and municipal credit;

– insurance organizations;

– state and municipal expenditures;

– bank lending;

– monetary circulation and settlements;

– currency regulation.

Financial law, like many other branches of law, consists of general and special parts.

It is generally accepted that the general part of financial law (as a branch of law) includes legal norms that establish the basic principles of the financial activity of the state * its tasks, forms and methods of implementation, establish the legal basis for financial control, the range and competence of government bodies involved in financial activities of the state.

These rules establish provisions that apply to all sections and institutions of the special part of financial law.

This definition of the content of the general part of financial law, in principle, does not raise objections. However, we believe that, firstly, the range of issues referred to by this definition as the subject of the general part needs to be supplemented, clarified and specified. Secondly, this part of financial law, like the general part of other branches of law, consists of individual institutions, i.e. in itself is a certain legal system.

In particular, it contains an institute that could be called “Management in the field of public finance».

The existence of such an institution is evidenced by the presence of a significant legal body dedicated to entities carrying out organizational activities in the field of public finance. The factor of organizing public finances is practically realized through their management. Moreover this management is implemented not only in managing the processes of cash flow in certain directions by issuing mandatory regulations by the state or its body, but also in organizing the activities of the state bodies themselves, which are entrusted with certain functions in the field of public finance. For this purpose, the state, through the publication of normative acts, endows its bodies with the corresponding competence, forms them into a certain system, operating in a regime of hierarchy and subordination, establishes forms and methods for the implementation of their powers. The word creates what in legal literature is usually called management in some area. Let us emphasize once again that management in the field of public finances is predetermined by their very nature and follows from the fact that outside organizational forms such finance does not exist.

As part of the general part, there is also an institute that we would propose to call “Legal regulation of financial planning.” Financial and legal science recognizes the existence of a special type of financial acts - planning and financial acts and the presence in a special part of financial law of an institute dedicated to one of the types of financial planning - budgetary, called " budget process" However, the object of financial planning is not only the budget, but also all other monetary funds that are part of the financial system. Confirmation of this - a large number of the most diverse financial plans, developed and approved by various government bodies themselves.

The institute of the general part of financial law is an institute dedicated to the organization monetary system countries. In financial and legal literature it is considered a special institution and material about it is located at the end of textbooks on financial law. The assessment of this institution as an institution of a special part seems erroneous. Firstly, if we proceed from the premise that the system of the special part is derived from the financial system (i.e., financial and legal institutions reflect objectively existing financial and economic institutions), then the institution in question has nothing to come from at all, since the state financial system of the monetary does not know the fund called “Monetary System” at all. Secondly, legal regulation The monetary system equally applies to all monetary funds that are part of the financial system and mediated by the relevant legal institutions of a special part of financial law. In other words, the “Institute of Legal Fundamentals of the Monetary System” is not located in the same horizontal row with other institutions of the special part, but is located above them, which predetermines its place in the general part of financial law. Thirdly, this institution has access to all monetary relations, while financial relations are only part of them. Consequently, this institution, as relating to all monetary relations existing in society (financial, regulated by standards financial law; commodity-money or simply money, regulated by civil law; wage relations regulated by labor law, etc.), is of a general nature in relation to them.

The institution of the general part of financial law is the institution called “Financial structure”. The public finances of any country are organized in nature: they are divided into certain funds of funds mediated by financial and economic institutions. All this is secured by appropriate legal acts. Standards defining general principles formation of the state’s financial system and the most decisive fundamental issues structuring of public finances constitutes precisely this institution.

A generally recognized institution in the general part of financial law is the institution usually called “ Financial control"(its more correct name is " Legal basis financial control").

Finally, the institution of the general part of financial law is the institution called “Financial and legal responsibility”.

What kind of violation financial legislation one or another legal liability is applied, a fact that is generally indisputable. In some cases legal nature there is no doubt about this responsibility - it is either criminal or administrative. In other cases, the nature of this responsibility is not so obvious and the opinions of researchers when qualifying it are divided between financial and legal, administrative and legal, and even civil liability. The very existence of this species is being questioned. legal liability, as financial and legal.

We will dwell on all these questions below. Here we note that this type of liability exists, which gives grounds to identify a special legal institution in the general part of financial law (similar to how in administrative law the institution of administrative and legal responsibility is highlighted). Since financial and legal responsibility is associated with a violation of legal norms relating to all institutions of the special part of financial law, the place of this institution is in the general part.

As a result, the general part of financial law (as a branch of law) is represented by the following institutions: 1) financial structure; 2) legal foundations of the monetary system; 3) financial management; 4) financial planning; 5) financial control; 6) financial and legal responsibility.

Each of these institutions has its own access to the institutions of a special part and is implemented through them. Thus, financial planning in its specific implementation breaks down into budget planning, planning for the expenditure of special monetary funds, financial planning state enterprises etc. Financial control takes the form budget control, tax control, departmental control etc. Financial and legal responsibility in its specific application takes the form of responsibility for violation of budget, tax, currency and other types of legislation included in the family of financial legislation.

In the general part of the financial law training course, in addition to the topics mentioned, there should be sections devoted to the subject, methods, system, sources of financial law, financial and legal standards and relations, science of financial law, financial law foreign countries and other issues of scientific and theoretical significance.

As for the system of a special part of financial law, in legal science there has long been an opinion according to which the financial system of the country is reflected in the system of financial law as an objectively existing economic category. And we should completely agree with this.

However, at least two problems arise here. Firstly, the composition of the financial system, despite the fact that it is indeed an “objectively existing economic category” (and not only a “category”, but also a phenomenon of objective reality), is neither economic nor legal sciences has not been fully revealed with all certainty and indisputability. As a result of this, in various literary sources presents the most diverse set of institutions included in this system. Secondly, the concept financial system" has a significantly different meaning depending on what it covers: only public finance or finance in general (i.e. both public and private). And this again raises the question of what is the object of financial law: finance in general or only public finance. Financial and legal science seems to be leaning towards the latter option. But if you look at the lists of institutions of a special part of financial law presented in the legal literature, it is easy to notice that many of them mediate precisely private finance. Moreover, among the numerous works on financial law, you cannot find two that would adhere to the same list. That is, the question of the composition of a special part of financial law is controversial.

However, in most cases they are called following institutes: budget law; tax law; off-budget funds; finance of state-owned enterprises; government revenues; government loan; property and personal insurance (sometimes only its organization is highlighted); government spending; bank lending; money circulation and settlements; currency regulation.

This classification suffers from serious shortcomings, namely: 1)

as we see, both public and private finance are designated here as an object of financial law. For example, property and personal insurance, bank lending, which in a market economy are, as a rule, a type of private entrepreneurial activity, are carried out non-governmental organizations(private insurance companies and banks) and are based on funds located in private property. Therefore, their inclusion in financial law as institutions of its special part seems erroneous.

Above, we have already come to the conclusion that the object of the financial activities of the state (and, accordingly, financial law) should be only public finances;

2)

The system under consideration is characterized by the fact that during its construction one of the basic methodological principles of systematization was not observed, according to which the grouping of phenomena when building a classification series should be based on a single criterion. Here, legal institutions are formed according to a variety of criteria. Thus, some of them are identified on the basis of the presence of a corresponding fund of funds (budgetary law, extra-budgetary funds, finances of state enterprises), others are based on the characteristics of cash flows as income or expenses (state revenues, government expenses), the criterion of others is the method of financial activity of the state (tax law, state credit), the fourth reflect the type of business activity (insurance, bank lending), the fifth - the conditions for the movement of money and currency circulation (money circulation and settlements, currency regulation).

As a result of such a disorderly use of system-forming criteria, the system itself as such does not exist at all, numerous inconsistencies, layers and duplications arise, when it is impossible to determine which legal institution is the subject of a particular social relationship;

3)

As part of the system, such financial and legal institutions are named, which have no analogues in the form of financial and economic institutions that are part of the financial system of the state.

In this regard, first of all, we note that the existence of any legal institution that is part of a special part of financial law means the presence of a specific group of social relations, relatively isolated from other social relations and in some way significantly different from them. This group of social relations forms one or another legal institution, acting as the subject of its legal regulation. Therefore, ultimately, the question of the types of institutions of a special part of financial law is a question of systematization of social relations that are the subject of financial law. At the same time, it is quite obvious that the same financial relationship cannot be simultaneously the subject of different legal institutions.

Based on this fairly obvious methodological principle, let us consider the above option for constructing a special part of financial law. 1. First of all, it is objectionable to highlight such institutions as “Legal regulation of state revenues” and “Legal regulation

government spending

The fact that there are state “expenditure” and “income” relations! completely obvious. But these relationships, secondly, are always associated with a certain fund of funds and are “tightly” tied to it. There are no incomes and expenses - there is no fund itself, just as there cannot be any “income” and “expenditure relations” existing separately from a specific fund. They are always the relationship of their foundation. Consequently, social relations associated with the income and expenses of monetary funds are not only an integral element of those financial and economic institutions that mediate these funds, but, in fact, form these institutions. Each of them has its own legal institution. Separation of “income” and “expenditure” relations from it (so that they constitute a subject of independent legal regulation separate from the fund) would mean the actual destruction of the economic institution that mediates this fund, since no fund of funds can exist without income and expenses.

Take, for example, the payment relationship state duty. On the one hand, this is undoubtedly a relationship expressing the receipt of income by the state. If we adhere to the classification under consideration, this relationship can be considered the subject of the Institute “State Revenues”. But on the other hand, if the state duty goes to budget revenue, then this relationship with equal basis can be considered budgetary. Therefore, placing this relationship “under the auspices” of the legal institution “State Revenues” means that either relations on the formation of the revenue side of the budget can function outside the budget itself, or the same relationship is the subject of legal regulation simultaneously through the institution “State Revenues”, and the Institute of Budgetary Law. The first is absurd from an economic point of view, since no fund can exist without its revenue part, the second is absurd from a legal point of view, since it makes the division of the branch of law into institutions meaningless.

Finally, thirdly, the economic nature of social relations is determined by the monetary fund around which they are grouped and together form the corresponding financial and economic institution. The legal “person” of these relations must be adequate to their economic content. Thus, the relationship for making payments to the budget is an economic budget relationship. It should be budgetary and with legal point vision. Consequently, the rules governing payments to the budget are part of budget law, and not the institution of “State Revenues”.

Of course, financial relations can be divided into income and expense. Equally, depending on the type of monetary fund, they can be divided into budgetary, relations on the formation and distribution of extra-budgetary funds, enterprise funds, etc. But this division is made on the basis various criteria and the phenomena expressed by it exist on different classification planes. To reduce these phenomena into one classification series, assigning each of them the same type of financial and legal institution status, means violating the elementary laws of system construction.

Based on all of the above, we can, in our opinion, draw a very definite conclusion that the special part does not contain such institutions (sections, sub-sectors) as “legal regulation of state revenues” and “Legal regulation of state expenditures”. At best, they can be sections of science or a training course in financial law, allocated, as S. D. Tsypkin wrote, for the purpose of more detailed analysis, assimilation and improvement of relevant regulatory materials37.

At the same time, we believe that within the framework of certain sections of financial law (considered as an industry) that mediate a certain fund of funds, the allocation of special institutions that regulate the income and expenses of this fund is, in principle, permissible. This fully meets the economic prerequisites for the formation of a system of financial law, since the fund of funds underlying a financial and economic institution always consists of two parts - revenue and expenditure. It is logical to assume that the legal institution (section of financial law) contains groups of norms corresponding to these parts of the Monetary Fund and the financial and economic institution expressing it. For example, it seems quite justified the existence of such a legal institution as “State Budget Revenues”, which exists, however, not within the framework of the “State Revenues” section, but is part of budget law.

2. The above fully applies to such an institution of financial law as tax law, which now claims, according to some authors, almost independent industry

A significant amount of financial legislation is devoted to taxes, up to codified acts in the form of a special tax code.

However, tax relations always represent the income relations of any fund of funds. Typically, taxes are budget revenue, but can be used to form other monetary funds. In this case they are of a special nature. In Kazakhstan, for example, at one time there were taxes intended specifically for the Road Fund. But in any case, taxes do not form an independent monetary fund, but act only as its income source. Due to the absence of a special “tax” monetary fund, there is also no corresponding “tax” financial and economic institution as part of the state’s financial system. And if there is no financial and economic institution, then there is nowhere for a legal institution to appear as part of a special part of financial law.

At the same time, phenomena such as " tax activity", "tax law" and "tax legal relations" undoubtedly exist as financial and legal categories. Therefore, given the importance of taxes in the implementation of the financial activities of the state, tax law may well (and even should) act as an independent object of financial and legal science, and in view of the complexity of regulations on taxes, the importance of their professional assimilation - and as separate section training course in financial law (or even better - as an independent academic discipline).

3. State loan

As for such institutions as “Insurance” and “Bank Credit”, it should be borne in mind that in a market economy they are mainly based on private property and, therefore, are not the object of financial law at all. The financial system of the state can only include state insurance and state bank credit, or more precisely, the finances of state insurance organizations and state banks operating in the organizational and legal form of state enterprises. In principle, these finances belong to the category of decentralized finance (with the exception of the monetary funds of the National Bank). These organizations are not financial authorities state, just like any other state-owned enterprise is not. Moreover, the insurance itself or the provision bank loans should be carried out on a civil law basis, i.e. the relations arising in this case are not financial and legal.

5. Institute " Money turnover

5. and calculations” has nothing to do with financial law and is a typical civil legal institution, since it regulates the monetary branch of commodity-money relations. In this regard, we note once again that not every monetary relationship can be classified as financial. 6.

Currency regulation

" refers to the institute "Legal basis of the monetary system", which relates to the general part of financial law. Considering the controversial issue of the composition of a special part of financial law, we will find out what a financial and legal institution is as an element of this part. A financial and legal institution is a collection legal norms institutions cannot exist outside of self-mediated relations, and these relations do not exist without their institution. Since the subject of a legal institution is a group of financial relations, and the latter are grouped into a financial and economic institution, then it (as a set of economic relations) is the subject of the corresponding legal institution. Consequently, a legal institution is a financial and economic institution dressed in legal “clothes”. It follows that the system of a special part of financial law is the financial system of the state dressed in legal “clothes”.

In order to verify these conclusions, we will ask a number of control questions.

First, can a legal institution exist without its own financial and economic institution, that is, outside the financial system? No, such a legal institution cannot exist, because there is nothing for it to form the subject of legal regulation from - economic relations are always part of their financial institution and are absorbed by the legal institution that mediates it. Thus, budgetary relations, forming the institution of the financial system in the form of a budget, are the subject of budgetary law. Taxes credited to the budget represent a type of budgetary relationship. Tax relations themselves do not form either their own pool of funds or their own institution of the financial system. Therefore, there are neither economic nor legal grounds for the existence of a special institution of a special part of financial law in the form of tax law - these relations are the subject of such a legal institution as budget law.

The second question is whether a situation is possible in which economic relations are grouped by financial institutions according to their economic criteria, and legal relations - according to legal institutions, according to their own legal criteria, and at the same time both systems (the financial system and the system of the special part of financial law), differing from each other, will exist in parallel and independently of each other? For example, the financial system does not know such an institution as “State Revenues,” but many lawyers believe that the system of a special part of financial law contains such an institution.

In order to answer this question, let us ask one more: can financial legal relationship exist without the economic relationship mediated by it? There can be only one answer: of course not. A financial legal relationship is an economic financial relationship clothed in legal “clothing”. The location of the legal relationship always depends on the location of the economic relationship. Therefore, the legal relationship will always belong to the legal institution that mediates the economic institution that includes the economic relationship itself. This means that the belonging of a financial relationship to its economic institution predetermines the belonging of the legal norms regulating this relationship to the legal institution that mediates this particular economic institution. In other words, the question of grouping social relations by subject of legal regulation is a question of grouping economic relations by type of financial institutions. Hence, the situation when the economic relationship will be in one financial institution, and a similar legal relationship will not be in the legal institution that mediates it, but in some other one, is in principle impossible. Thus, if the “income” relationship is a relationship for the formation of the revenue side of the budget, then it will be the subject of budget law, and not the institution of “State Revenues,” since the economic budget relationship is part of the financial and economic institution “ Budget system“and the legal relation cannot be divorced from its economic relation.

The third question is whether it is possible to classify financial relations (both economic and legal) on some basis other than their belonging to a financial and economic institution? Quite simply, this is what is being done for scientific and educational purposes. Economic relations can, for example, be classified on the basis of repayment, according to which they will be divided into relations of irrevocable provision of money and credit relations. Legal relations can be classified according to the method of legal regulation, as a result of which they will form two groups: relations regulated imperative method, and relationships regulated dispositive method. Both economic and legal relations can be classified according to the direction of movement of money, due to which they will represent “income” relations (relations for the formation of monetary funds) and “expenditure” relations (relations for the distribution of monetary funds. As a result, the same financial relationship, depending on the classification criterion, at the same time can be budgetary, tax, and “revenue”.

Moreover, the legal norms themselves can also be classified on very different grounds. As a result, the same norm can be characterized as a norm of budget law, and as a norm of tax law, and as a norm of the institution “Legal regulation of state revenues”.

However, any classification, no matter what purpose it pursues, firstly, must be made on a single basis and, secondly, should not lead to a separation of economic relations from the legal ones that mediate them. But the most important thing is that no other criterion, other than the belonging of a financial relationship to a specific economic institution that is part of the financial system of the state, can be used as the basis for the classification of legal institutions that form the system of a special part of financial law. The subject of financial law is financial relations. And since these relations are objectively grouped into financial and economic institutions*, then it is precisely these groupings that act as the subject of legal institutions included in the system of this branch of law.

Thus, the system of the special part of financial law is determined by the financial system of the state. Namely: the number of legal institutions and their types exactly corresponds to the number and types of economic institutions. Legal institutions that do not correspond to economic ones cannot exist. At the same time, the fund of funds acts as the material representative of the economic institution (and, accordingly, the legal one). As a result, the following relationship is built: there is a monetary fund, which means there is a financial and economic institution, and there is an economic institution, which means there is a legal institution.

The financial system and the legal system that mediates it are a single mechanism constituent elements which through numerous connections and through various channels are strictly interconnected, interdependent and do not exist one without the other. This mechanism is characterized by general organization, balance of parts, internal and external unity. Thus, the economic relationship acts as a subject of regulation for the legal norm. Interaction of economic relations with legal norm gives rise to a financial legal relationship. The economic relations group forms a financial institution. It acts as a subject of regulation for a legal institution, which, in turn, is a set of legal norms. Economic institutions form a financial system, which is the subject of regulation for the entire special part of financial law, which itself is a set of legal institutions.

This complex, in addition to the listed systems (economic and legal), also includes a system of bodies carrying out state financial activities, and in its entirety can, in our opinion, be called the “financial mechanism of the state.”

A few words about the names of the divisions that make up the special part of financial law. Previously, it was customary to call them institutes. However, due to the fact that some institutions have become quite large legal entities, having their own internal division, began to apply categories such as “sub-branch” or “section” of financial law. The latter seems more correct. As a result, the industry is divided into sections, and the sections into institutions.

In light of the conclusion about the dependence of legal institutions on financial and economic and the reflection of the financial system in the legal system of a special part of the financial law of the Republic of Kazakhstan is as follows: 1)

economic institute " State budgets", the material expression of which is such monetary funds as the republican and local budgets, corresponds to the section of financial law “Budget Law”;

2) Economic Institute “Finance of State Enterprises, Institutions and Centers” economic systems » (finance state economy

The economic institute “Finance of State Banks”, the material expression of which is the monetary funds of the National Bank, as well as state commercial banks, corresponds to a section that could be called “Financial and Banking Law”. Note that she banking activity carried out by government commercial banks(for example, making non-cash payments, providing loans, opening bank deposits, etc.) is regulated by civil law and the relationships arising in this case are not financial. Regulation of the activities of private banks by the National Bank also does not reflect the financial activities of the state and is carried out within the framework of administrative and civil law; 4)

Economic Institute “State Insurance Finance”, the material expression of which is the funds intended to pay for the services of insurers when insuring certain property interests states, as well as funds of state insurance organizations, corresponds to a section that could be called “Financial and Insurance Law”. Note that the insurance itself, carried out by concluding insurance contracts, is regulated by civil law and does not express the financial activities of the state (even if such insurance is carried out by state insurance organizations, and the object of insurance is the property interests of the state). Therefore, in general, insurance law belongs to the sphere of civil law. Financial and insurance law occupies a insurance law a very insignificant place (nevertheless turning it into a comprehensive legal institution) and concerns the establishment of the procedure for the formation and distribution of state monetary funds intended for the implementation of insurance. Note that the activities of the authorized government agency for the implementation of insurance supervision, contrary to popular belief, does not fall into the category of financial activities of the state and is a type of administrative activity.

As already noted, financial systems various states may differ significantly due to the structural features of these systems. Accordingly, the construction of a special part of financial law may differ. Thus, if the insurance business in the country is entirely carried out by private insurance companies and there is no insurance of the property interests of the state, then the financial law will lack the institution of “Financial and Insurance Law”. Availability of extrabudgetary special funds gives rise to the institute “Legal regulation of extra-budgetary funds”. It must be said that such funds (and, accordingly, such a legal institution) existed in Kazakhstan. However, at present they are consolidated with the budget, which entailed the absorption of this institution into budget law. In passing, we note that all kinds of extra-budgetary funds that exist in parallel with the budget lead to the erosion of the financial system, give it a kaleidoscopic character, and remove significant amounts of public funds from the control of the public represented by the representative bodies of the state.

From the point of view of the hierarchy of funds and the vertical section of the financial system, centralized, local and decentralized finance are distinguished. Accordingly, three blocks of norms will be quite clearly visible in financial law: 1) legal regulation of centralized finance; 2) legal regulation of local finance; 3)

legal regulation of decentralized finance.

The federal structure of the state naturally complicates the system of financial law due to institutions dedicated to the finances of the constituent entities of the federation.

It should be emphasized that the system of the financial law training course does not necessarily have to coincide with the system of financial law as a branch of law. Teaching and learning of financial law and related matters normative material produced on the basis of our own methodological techniques and the laws of didactics, and not the laws of constructing legal systems. In addition, by and large, the object of teaching should not be the branch of law as such, but financial and legal science. Therefore, given the importance educational material and the complexity of its assimilation, in the training course “Financial Law” it is advisable to highlight such topics as “Tax Law” and “State Credit”, although they do not represent institutions of either the financial system or financial law as a branch of law.

Test questions 1.

Institutions included in the general part of financial law.

2.

Criteria for the formation of a system of a special part of financial law.

4.

Disadvantages of traditional ideas about the composition of a special part of financial law.

5.

The concept of a financial and legal institution.

The relationship between the system of financial law (as a branch of law) and the system of the financial law training course.