THE CONCEPT AND SCOPE OF MUNICIPAL GOVERNANCE ENTITIES’ COMPETENCE IN RUSSIAN FEDERATION AND CANADA

of expanding the municipal competence, based on the goals of municipalities’ activities. The author believes that such an approach is contrary to the legal nature of municipal corporations, and therefore the rules governing the competence of municipalities and the rules governing their legal status in general need to be harmonized. Based on the above, the author concludes that in Russia and Canada both theoretical and normative work is required to eliminate defects and optimize the functional load of municipal governance entities.

Other experts acknowledge the difference between these concepts and provide their own definition. For example, E.I. Kolyushin defines competence as "terms of reference and powers of objects, through which national sovereignty implemented " [6, c.381]. According to the D.A. Kovacheva, "competence belongs to a public authority. The State possesses sovereignty. It is the inherent quality of the state which solves the issue of distribution of competences between the federation and its subjects " [7, c.140]. There is thus a kind of "semantic maze", which prevents a clear understanding of the above categories [3, c.27].
In this regard, it is appropriate to bring the position of the famous German jurist H.Kelzen. In "Pure Theory of Law" he states that any community should have bodies and it can only function through them. If, for some reason, any individual performs certain functions related to the community, he performs the function of the body, while these functions belong to the community " [8, c.153-154]. In this sense individuals and their communities can carry out competence, which is important when considering the subjective accessory of the competence at the level of local government. [8, c.149].
Less controversial is the distinction between the concepts of "issues of competence" and "authorities." The issues of competence are often revealed through the concept of social relations. O.E. Kutafin and K.F. Sheremet determine that "the issue of competence is a generalized, but legally significant indication of the area (sphere) of public relations, which authority of the State should act to perform its functions" [9, c.23].
N.M. Kolosova extends this concept and indicates its relationship with the concept of "authorities", "conducting subject -it is a specific sphere of social relations, which is in accordance with the Constitution applies or only to the Russian Federation jurisdiction, or to the joint jurisdiction of the Federation and its subjects, or only subject to the jurisdiction of the Russian Federation" [10, c.161].
Some studies in the national jurisprudence are specifically devoted to matters of the competence of local authorities [11; 12]. The Russian model of determining of the competence of municipal bodies involves distinguishing the concepts of "local issues" and "authority." The basic legislation on local self-government considers issues of local importance, which can be defined as a kind of synonym of the term "object of jurisdiction". Authorities are specific rights and obligations of the bodies and officials of local government to realize it.
Unfortunately, Russian legislator doesn't distinguish these concepts clearly, as well as the scholars confuse them [13; 14]. For example, according to Clause 1 Part 1 Article 17 of the Federal Law № 131 publication of municipal legal acts relates to authorities of local governments (which makes sense), while the establishment, modification and cancellation of local taxes and fees (p.1 st.14,15,16 Part 1) relate to issues of local importance, although, in fact, all this represents the right of local self-government bodies and, in fact, these are separate authorities.
Russian legislation defines the limits of the competence of municipalities in which local authorities can carry out legal regulation and management, relatively clear. These issues include local issues enshrined in law (st.14,15,16,16.2 Federal Law №131); regulation and management on matters unrelated to issues of local importance, and not subject to binding decisions (so-called "optional" local issues ") (st.14.1,15.1,16.1 Federal Law №131); realization of the individual authorites delegated to the local level (Part 2 of Article 7, Article 19 of the Federal Law №131); participation in matters relating to the jurisdiction of other levels of government, if it is allowed by law, as well as the regulation and management on social support of the population, even in the absence of the relevant legislative resolution (part 5 of article 20 of the Federal Law №131).
Although the federal legislator makes an attempt to systematize the powers of local governments to address local issues by listing them in Article 17 of the Federal Law №131, there is no clear system of the authorities. First, the list is not exhaustive, and second, in accordance with Article 17 powers of local self-government bodies can further be established by federal laws, statutes of municipalities, and in respect of inner city areas by the laws of the subjects of the Russian Federation. In 2014 the subjects of the Russian Federation were given the right to redistribute the powers between the local authorities and public authorities of the subject of the Russian Federation. Redistribution of powers is allowed for at least the term of office of the legislative (representative) body of state power of the subject of the Russian Federation. According to some scholars this reform is considered to be a threat to the constitutional autonomy of local governments [16].
According to Professor V.V. Tabolin, local government carries out an independent legal regulation not only on issues that are regulated by the state in general terms and require "local legal specificity", but also in cases where, for some issues the state legal regulation is completely absent and there is no need for its existence or where the legislation is not able to cover the variety of local circumstances [17, c.64].
According to part 2 of Art.14.1, Art.15.1 and Art. 16.1 of the Federal Law №131 local governments have the right to decide other issues not related to the competence of local authorities of other municipalities, public authorities, and not excluded from their competence by federal laws and laws of subjects the Russian Federation.
Legal practice on the definition of the competence of local authorities is contraversary. The Resolution of the Plenum of the Supreme Court of the Russian Federation of 29.11.2007 contains no comprehensive rules to identify the content of the competence of local authorities when disputes arise. The document indicates that when checking compliance with the competence of the body or official that took the municipal legal act, it is necessary to find out whether the questions are settled in the contested act or a part thereof to the issues of local importance. However, as discussed above, the competence of local authorities is not confined to local issues.
Having researched the foreign experience of local government, E.V. Belousova states that the municipal authorities of most countries operate within the framework of its own powers, implemented depending on financial possibilities. At the same time, along with its own (optional) authorities there are also obligatory and delegated authorities, the implementation of which is controlled by the State [19, c.31-34]. Obligatory authorities are exercised with the participation and under the supervision of the state. Delegated authorities are similar to obligatory authorities but are funded from the state budget [19, c.31-34] .
Professor A. Kostjukov analyzes the Anglo-Saxon model of local self-government on the US example and indicates the presence of the two constituent elements in the structure of the competence of local self-government bodies, and namely of authorities (the mandatory and optional ones) and issues of jurisdiction. [20, c.440 P.A.Kucherenko L.T.Chihladze also highlight obligatory and elective authorities [21, c.288-289].
High impact on the definition of powers of local authorities in the Western countries, was made by European Charter of local self-government. In accordance with Part 1 of Article 3 of the Charter local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population. Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law (Part 3 of Article 4).
The dominant approach in the framework of the Anglo-Saxon mode is that the carrier of the competence is the municipality as a form of public corporation. Both municipalities and bodies of self-local government are subjects of the local self-government [24], subjects of municipal government and carriers of municipal competence. A.Ya.Porovskaya, indicates that the municipality as a quasi-corporation is an independent subject of ownership and economic activity by which a population protects and satisfies their interests [ 26, c.146-147].
Municipality, respectively, is an independent, endowed with its own competence general subject of the municipal administration, in respect of which the local authorities will be private subjects expressing the general will.
With regard to the substantive content of the competence, it is necessary to clarify that there were attempts to highlight the purely "municipal functions" in the North American doctrine.
For example, in Canada, the US cited in case Chardkoff Junk Co. v. Tampa, Florida Supreme Court pointed out the need to distinguish governmental and municipal functions performed by municipalities. According to the Court governmental functions are served by the police power and power of eminent domain; and also by those maintaining and operating a fire department, those furthering the administration of justice, and such other powers as are to be exercised by the corporation for the public weal, in or for the exercise of which the municipality receives no compensation or particular benefits. Whether the function of caring for and keeping in repair the public highways within the municipality is governmental or municipal has been often mooted and diversely decided. And, continuing to define "municipal functions" the editor says: "All functions of a municipal corporation, not governmental, are strictly municipal. Municipal functions are those granted for the specific benefit and advantage of the urban community embraced within the corporated boundaries. Logically all those are strictly municipal functions which specially and peculiarly promote the comfort, convenience, safety, and happiness of the citizens of the municipality, rather than the welfare of the general public. Under this class of functions are included, in most jurisdictions, the proper care of streets and alleys, parks and other public places, and the erection and maintenance of public utilities and improvements generally. In this character the corporation stands for the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred. On the other hand, a municipal corporation in its private or quasi-private capacity enjoys the powers and privileges conferred for its own benefit 1 .
However, implementation of such an approach in law faces tough concept of state sovereignty that does not involve separation of the pool of competencies which are not controlled. In Canada, in particular, the separation of powers between levels of public authority carried out by so-called "doctrine of ultra vires». Issues of competence between the federal center and the subjects are divided constitutionally. Subjects delegate authorities to the municipalities. In essence, the doctrine of ultra vires in the public law of Canada does not differ much from the Russiann principle of the possibility of the authorities to carry out the legal regulation and control only within their own competence.
It should be taken into account that the municipalities within the Anglo-Saxon model have the status of public corporations of a special kind. Accordingly, a special mechanism of determining of jurisdiction operates in their respect. The legal form of municipal corporations suggests that its capacity is limited by the provisions of the Statute.
The practice, repeatedly confirmed by the decisions of Canadian courts, according to which the competence of local authorities limited range of issues and related powers that were delegated directly (expressly granted) local self-government bodies of the laws of the provinces and territories, has been dominating in Canada for a long time [27, c.82].
There is no separation of regulatory and enforcement powers of municipalities in the framework of the "own" issues or in the framework of state powers transferred to them in Canadian municipal law. All the powers of municipalities are considered to be "delegated". An example of the strict application of the general rule of jurisdiction can be considered a decision of the Supreme Court of British Columbia in the case Delsom Estates Limited v. Corporation of Delta 2 .
However, in the early 1990s, in R. v. Greenbaum 3 , the Supreme Court of Canada pointed out that municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute. Accordingly, a court should look to the purpose and wording of the provincial enabling legislation when deciding whether or not a municipality has been empowered to pass a certain bylaw. There is also the question of how the by-law itself should be interpreted when determining whether or not the by-law finds authority within a provincial statute.
In Nanaimo v. Rascal Trucking Ltd 4 . The Supreme Court of adopted what was described as a "pragmatic and functional" approach to discerning the standards of review applicable to administrative tribunals, be they delegates of federal or provincial jurisdiction. As municipalities are also delegates of provincial jurisdiction, there is harmony in applying the pragmatic and functional approach in ascertaining the standard of review applicable to municipalities exercising an adjudicative function.
The change in the legal position of the courts of Canada echoes the decisions of the US courts in which similar ideas has began to emerge since the 1960s. According to the decision in the case of Osceola v. Whistle 5 , the Court of Appeal of Arkansas found that the municipal corporation possesses and can exercise the following powers: 1) directly delegated; 2) reasonably necessary for the implementation of the first; 3) necessary to achieve the goals and objectives of the corporation.
This approach is reflected in the basic legislation on local self-government of provinces and territories. For example, according to Part 1 of Article 4 of the Community Charter of British Columbia 1 , the powers transferred to the municipalities and their councils present law ... must be interpreted broadly in accordance with the adoption of the objectives of this law and the objectives of the creation of municipalities.
The real turning point was the case of Shell Canada Products Ltd. v. Vancouver (City) 2 . The case concerned the publication of the municipal act, according to which the municipality of Vancouver refused to cooperate with Shell Corporation to complete cessation of all corporation business ties with the apartheid regime in South Africa. According to the plaintiff, the act was discriminatory in relation to the corporation, as well as ultra vires, since the purpose of its decision was not related to the solution of local issues in Vancouver. However, the Court found the challenged act is legitimate, pointing out that the city council may adopt measures related to the support of the spirit of community and of belonging to a community, and among these measures may be present are those who express the opinion of the local community on the approval or disapproval of certain behaviors.
Thus, the formation of a conscious community of local citizens and the expression of their will is the target of local self-government. Currently, this solution is not only the basis for the potential expansion of the regulatory capacity of Canadian municipalities, but also an indirect justification of the need to recognize the independent special status of the institute of local selfgovernment.
Provincial legislators made attempts to give a proper legal definition of the goal of local selfgovernment. However, not all the relevant experience can be considered successful. For example, according to Article 2 of the Municipal Act of Ontario, municipalities' aim is the implementation of "quality control" in relation to issues under their jurisdiction. A similar goal of the municipality not contains, for example, in Part 2 of Article 4 of the Act on Municipalities of Saskatchewan 3 , Article 3 of the Act on Local Government Alberta 4 .
Canadian expert adviser of the Ontario Ministry of Municipal Affairs and Housing C. Gray believes that such an approach makes it possible to shift the focus to the content of the activities of local self-government in the process of this activity. The competence of municipalities is expanding, but at the solution of issues, provided by local authorities must be provided in "open, transparent, honest and responsible way", and that should be the reference point for the courts in resolving possible disputes on the admissibility of individual actions of local authorities. [28].
However, not all experts share such an optimistic view of the changes under consideration. So, another Canadian expert on local government T. Oudekerk considers this wording vague and meaningless [29, p.16].
We agree with the fact that such construction is unlikely to contribute to the judicial assessment of the legality of local government, but we should not forget that the judicial and extrajudicial authorities in Canada have developed methodological tools of assessment of management decisions, as well as identifyin their "injustice" which is the often reason for revision 1

Community
Charter in the framework of both judicial and other types of control (including control by the Ombudsman [30]).
Another step towards the expansion of competence, especially in the sphere of legal regulation of social relations by municipalities, was the prohibition of the judicial appeal of municipal acts by the criterion of "necessity". Thus, according to Art. 272 of the Municipal Act of Ontario, the absence of any alleged lack of the need for legal regulation of a certain issue can not be grounds for cancellation or revision of the municipal act adopted c compliance with the principle of good faith.
By opinion of the judge of the Supreme Court of Canada Spence, only the adoption of unfair act, an act of infringement or violation of the rights of citizens, the injustice of its provisions may be grounds for the act cancellation. For the rest, it should be assumed that the municipalities are free, within the limits of their competence, to take any legal acts and to establish them in their territories the best legal framework.
Canadian municipalities often provide examples of foreign, including European, experience to support the incipient process of expansion of its powers. For example, in its report on the assessment of the current legislation on local self-government of provinces and territories of Canada, Federation of Canadian Municipalities, including the principles of local self-government proposes to allocate the following: local authorities can exercise the powers in all matters except those expressly excluded from their competence or issues delegated to another level of government. It is stated that this provision is taken from Part 2 of Article 4 of the European Charter of Local Self-Government.
Liberalization of approaches to determination of the competence of municipalities enters into a contradiction with the legal nature of the claimed municipal institutions in Canada and the legal structure of the municipal corporation. From the constitutional point of view, the division of subjects of management in Canada is carried out only between the federation and its subjects (or rather, their legislatures). At the same time the Constitution of Canada, by analogy with Russia, does not provide for the redistribution of assigned extra-constitutional way of doing things, while leaving the question of the competence of the newly emerging accessory control subjects [31, c.52].
Consequently, municipalities which are not recognized by the level of public authority and which are not the part of the state mechanism can receive only certain delegated powers.
It must be concluded about the imperfection of the legal mechanisms of determining the competence of the municipal authorities and other subjects of municipal government both in Russia and Canada. Specific issues related to this matter, vary depending on conditions and specific approaches to legal regulation of competence of municipal government entities in these countries. However the imperfection seems to be associated primarily with conceptual difficulties in the definition and delimitation of the elements that make up the local jurisdiction, and, ultimately, unsuccessful approaches to the development of legal formulas that determine its boundaries ( lack of proper specification of issues of local importance and authority in the Russian legislation and contradictory nature expansion of the competence of the municipalities in the Canadian law). Accordingly, both Russia and Canada require both theoretical and normative work to eliminate defects and optimize the functional load municipal government entities.