Comparative analysis of current and new laws of Ukraine «About Public Service»: advantages and shortcomings

The article presents a comparative legal analysis of current and new laws of Ukraine «About Public Service» and reveals shortcomings and positive sites of the labor relations of public servants. Substantial expansion of sphere of action of new law is marked, his orientation not only on implementation of tasksand functions of the state but also preparation of suggestions public servants in relation to forming of public policy, her realization and grant of administrative services. An author pays attention to norms of new law in relation to reduction of political influences on government service, question in relation to disciplinary and property responsibility of public servants and obligatory realization of official investigation on his requirement with the aim of meeting the groundless charges or suspicions. To the lacks of this law taken the complicated classification of positions, incomprehensible approach in relation to the grades of public servants and leading out of the legal adjusting of government service from under the actions of labour legislation. In opinion of author, labour relations of public servants after the legal nature are the variety of labour relations of wage labour, and that is why must beregulated exceptionally by norms of labour law.

On November 17, 2011 the new Law of Ukraine «About Civil Service» was adopted, which provides for changing the legal regulation of civil service in Ukraine.. With the adoption of this law raised the question branch belonging of labor relations of civil servants to labor or administrative law. So now there was a question of legal regulation of civil service in Ukraine and its reform. Specified questions deeply researched in the national legal literature. This problem is devoted to the works of V.S. Venediktova, V.V. Zhernakova, M.I. Inshyna, P.D. Pylypenko, A.I. Protsevskyi and other lawyers. However, despite the considerable amount of work on this subject, this problem is still relevant today and requires further study. The purpose of this article is analysis of the current and the new law «About Civil Service», identify drawbacks and positive aspects in the implementation of reforming of the civil service in Ukraine.

Representatives of science of labor law rightly believe that the labor relations of civil servants, in particular, of their employment (service), transfer, dismissal, working hours, wages should be included to the subject of labor law. By its legal nature, the employment relationship of civil servants though are labor relations of wage labor, but have their own specifics, due to the peculiarities of their professional activities related to the functions of the state. Because of this, to civil servants rely higher demands and to set them additional guarantees and benefits.

Comparative analysis of the current and the new law “On State Service” showed that the new law contains a conceptually different approach concerning legal regulation of labor relations of public servants. Thus, scope of activity of the new law, significantly different from the current Law «On State Service». The new law regulates relations arising in connection with the entry into the civil service, its passage and termination, shall determine the legal status of civil servant. Reflected in the legislative definition of civil service appointment, which previously covered only the tasks and functions of the state, now accented on civil servants preparing proposals concerning the formation of state policy, ensuring its implementation and administrative services. Now according to the law civil service is perceived not as a purely auxiliary state institution through which public authorities functioning – but above all as a mechanism for ensuring the rights and freedoms of the individual, collective public interest.

Scope of activity of the current law spreads on public relations which cover the activities of the state concerning creation of legal, institutional, economic and social conditions of the citizens of Ukraine realization of the right to civil service.

Some rules of the new law aimed at weakening the political influence on public service. In particular, this will facilitate the introduction of a separate post of the Head of civil service in body or apparatus as senior civil servant. This head is endowed with a wide scope of powers of the competition, appointing to civil service, dismissing from civil service, assignment of ranks, increasing of professional competency, promotion and attraction of civil servants to disciplinary liability.

Effective novel of this law is the exclusion from the civil service of positions of support staff of government bodies, employees of state enterprises, institutions and organizations. In the new law is detailed the regulation of many aspects of public service, namely: procedure of competitive selection for the positions; making of entry, passing, dismissal from service; testing when appointing; order of transfer and secondment of civil servants; organization of service activity and it’s assessment; grounds and procedure of termination from service, bringing servants to justice; conduction of the personal file of servants; order of transferring of cases and property to servants during the liberation from service, etc.

To the negative novels of this law should be attributed complicated classification of civil service. Contradictory novel of this Law is the redistribution of positions to groups and subgroups. Incomprehensible is an approach to the ranks of civil servants who are according to the Law provided for nine.

The new law reveals issues of disciplinary and property responsibility of civil servant. The grounds for bringing civil servant to disciplinary responsibility is committing by him disciplinary offense. In the current Law of Ukraine “On State Service” features of disciplinary responsibility of civil servants are defined. To servants except disciplinary penalties stipulated by the current labor legislation of Ukraine, may be applied following measures of disciplinary influence: warning about incomplete official conformity; delay for one year of awarding of the next rank or appointment to a higher position.

Feature of disciplinary responsibility of civil servants is that in the new law established the following legal category as the definition of discipline, duty and types of disciplinary penalties that are differentiated considering the degree of guilt, which is also a positive aspect.

The new law provides for the right of civil servants to appeal to specially authorized central executive body on the questions of Civil Service on illegal actions of head of state authorities.

The positive is the fact that the new law contains a norm on compulsory conducting of Official Investigations at the request of civil servant to refute unjustified, in his opinion, accusations or suspicions.

It should be noted that positive character of significant novels of the new Law of Ukraine «About Civil Service» contains a number of material weaknesses that raise doubts on its ability to provide quality reform of the civil service. However, attempts of the legislator to bring legal regulation of Civil Service from the application of labor law will not lead to positive results and is not entirely legitimate. As the labor relations of civil servants by its legal nature is a kind of labor relations of wage labor. Therefore, their proper legal regulation is possible only with norms of labor law.