Сибирское юридическое обозрение (Dec 2021)
Risk-Oriented Approach in the Implementation of Control and Supervision Activities: Theoretical Justification and Problems of Application
Abstract
The article discusses the theoretical justification of the risk-based approach in the implementation of state control and supervision, and also highlights the problems of the practical use of this approach in the context of the reform of control and supervision activities. The author compares the positions regarding the risk category in economic and legal studies, justifies the growing interest in the use of risk technologies in public administration. An analysis of the use of the risk category in the legal and regulatory field allows us to distinguish two positions in relation to risk: risk as a possible occurrence of an event that has a negative effect, and risk as the probability of its occurrence. The risk institute belongs to the general theory of law and at the same time finds development in industry research. In modern conditions, the law is inherent in the task of preventing, overcoming and minimizing risks in various areas of social reality with their simultaneous recognition and assumption. The author considers the evolution of the application of the risk management system in the implementation of customs and tax control, substantiates the transformation of its interpretation. Based on the analysis, it is concluded that the risk-based approach in relation to the system of state control and supervision should be interpreted as the principle of a modern system of state control and supervision; the condition of its selectivity and sufficiency; means of reducing the administrative burden on the controlled sphere; a means of stimulating the controlled sphere in a given direction and a modern method of organizing and implementing state control and supervision. Narrow and broad approaches in positioning risks in the implementation of state control and supervision are highlighted. In the first case, risk is understood as the probability of non-compliance with mandatory requirements. A broad approach involves two factors: the likelihood of non-compliance and the consequences of such non-compliance. A characteristic is given to such characteristics of a risk-based approach in the implementation of state control and supervision: staging, agile, stimulating the preventive component of state control and supervision, the development of interagency cooperation, the connection with the digitalization of control and surveillance activities. The following are identified as the problems of applying the risk-based approach in the implementation of state control and supervision: the problems of developing and using criteria for the risk categorization of controlled persons, correlating these criteria with indicators of the effectiveness and efficiency of control and supervision activities; lack of correlation between control and supervisory procedures and proceedings on administrative offenses; the problem of using the category of good faith in the implementation of control and supervision activities and others. Solving the identified problems will improve the effectiveness of state control and supervision in modern conditions.
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