"Proportionality test" as a prerequisite for the effective use of the resource of "anti-corruption" limitations

Abstract

Relevance. In search of optimal ways to improve the regulatory framework and unify the practice of using the resource "anti-corruption" restrictions as a tool to prevent corruption in its various external forms of manifestation to significantly improve the efficiency, effectiveness of such use is quite possible and advisable to form a completely new, consistent with the latter achievements of legal science, doctrinal basis for thematic rulemaking and law enforcement. The updated professional doctrinal provisions on the implementation of "filters" of defective regulatory frameworks for the use of "anti-corruption" restrictions may serve as an element of such foundation. One of mentioned above provisions is the "proportionality test". The observance of its elements can eliminate the preconditions for "defect" of the normative aspect of the resource "anti-corruption" restrictions and significantly increase the efficiency of their use.

The subject of the study is "test and proportionality" as a prerequisite for the effective use of the resource "anti-corruption" restrictions.

The object of the study is the public relations that arise in the process of compliance with the "proportionality test" during the use of the resource "anti-corruption" restrictions.

The methodology of research is formed by a set of general scientific and special methods of scientific knowledge. As a basic method - dialectical, additionally used methods of semantic analysis, logical, comparative, modeling, forecasting.

Research results.  Throughout the diversity of anti-corruption measures (such as corruption offenses), anti-corruption restrictions are effective, aimed directly at eliminating any prerequisites for use by persons authorized to perform the tasks and functions of the state or local government, for the realization and protection of their augmented interests or the private interests of loved ones. However, the "defect" of the legal framework for the use of their resource (selectivity of fixing the "basic" terminological apparatus, oversaturation of evaluation provisions, "open" lists, the presence of banquet, withdrawal standards, the absence of clearly defined "limits", erroneous identification of prohibitions and (prohibition), etc.) significantly complicates enforcement, and therefore reduces the efficiency of their resource use. It is quite possible to eliminate the corresponding problem by adhering to the "proportionality test" in its "broad" sense (elements of which are: relevance (legality, legal certainty, adherence to a legitimate aim), necessity (minimizing interference with a person's "private autonomy", use of less intrusive means of interference), proportionality (the "fair" balance of public and private interests, the appeal of "excessive" interference, compensation for harm) while improving the regulatory framework and unifying the practice effect and the proper use of appropriate tools to prevent corruption.