The concept of phytosanitary control as agro-legal category
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2016, Vol 27, Issue
Abstract
Agriculture occupies a leading position in the economy of Ukraine. Products of plant ori- gin amount the largest share among the agricultural products, produced in Ukraine. Relations of state control in the field of the plant quarantine (phytosanitary relationship) between the controlling and controlled entities are taking place in order to verify compliance with the appropriate level of protection in the production, storage, transportation, sale, including export, import of plant products and to prevent the spread of quarantine organisms. But Ukrainian phytosanitary legislation contains no legal definition of phytosanitary control that leads to differences in approaches of the meaning of phytosanitary control and conflicts dur- ing its implementation in practice. The article presents an analysis of different approaches to the concept of control in the the- ory of administrative law and the analysis of phytosanitary legislations carried out on its basis in order to find out the core of the concept of “phytosanitary control”. Control is considered in the theory of law as 1) the function of government management, 2) the function of a pub- lic authority (body), 3) the legal form of the management activities, 4) method of activity of public bodies, etc. Control activities of public authorities are carried out in various areas of public life, including agriculture, which has its own specifics and a number of features due to the seasonal nature of work and dependence on climatic conditions, a variety of agricultural activities, and complex regulation of related relations. It was found that the distinguishing of phytosanitary control in other types of control of agricultural activities, foremost as one of the types of controls in the field of plant quarantine, is due to 1) the presence of a separate legal framework, which is characterized by legal homo- geneity, 2) certain regulatory subject-object structure, 3) own goals and objectives of the phy- tosanitary control, 4) a clearly defined legal procedure for its implementation. The analysis of representation of the phytosanitary control concept in Ukrainian legisla- tion revealed inconsistencies in the contents of this concept in different legal acts. It is found that phytosanitary control is carried out in order to detect quarantine organisms in quarantine materials (objects of regulation), moved across the border and quarantine zones, including during the production and circulation of regulated materials. Also control is carried out over the activities of nurseries, greenhouses and hot houses, involved in the circulation of plants. It was found that an activity for the protection, using, and reproduction of forests, is not a phy- tosanitary control inherently. It is beyond to the scope of implementation of environmental monitoring. And therefore, the implementation of this activity should be referred to other com- petent authority, in particular, to the State Forest Resources Agency of Ukraine. It was found that phytosanitary control is a legal form of management activity of the State Veterinary and Phytosanitary Service of Ukraine, and after its reorganisation – a legal form of management activity of the State Service of Ukraine on food safety and consumer protection. The author proposed the definition of phytosanitary control as activities of the competent authorities and officials, regulated by the law and aimed to the detection and localization of quarantine organisms and to prevent intrusion of quarantine organisms into the environment of Ukraine and other countries.
Authors and Affiliations
Olha Boiko
Keywords
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