Constitutional and legal problems of the functioning of the business ombudsman service: domestic and foreign experience

Abstract

The article examines the current constitutional and legal problems of the formation and implementation of business ombudsmen’s activities in Ukraine in the context of foreign experience. The role and importance of business-ombudsmen in the mechanism of protection of the right to engage in entrepreneurial activity are shown. World experience shows that the activities of the business-ombudsman are quite broad and affect various aspects of business. The basic principles that underlie the functional separation, independence and organizational diversity of business-ombudsmen are revealed. The main models of business ombudsman services are analyzed. The main characteristics of the institute of business-ombudsman in different countries of the world show that it is: 1) the direction of specialization of the classical model of ombudsman; 2) a legal institution, which is formed, as a rule, under the government (government ombudsman) or parliament (parliamentary ombudsman), less often under the head of state; 3) authentic structure, the specifics of which are related to a certain group of entities – entrepreneurs and the protection of their subjective rights; 4) an institution that combines a set of norms of homogeneous content aimed at regulating the status and activities that are in a relationship of coordination of the business ombudsman and (if any) regional or municipal business-ombudsmen; 5) an institution,the legal basis for the organization and operation of which may be an act of the government (Australia, France) and a separate special law (Russian Federation), or individual articles or chapters in other (usually profile in terms of business regulation) activities) legislation (Georgia). It is concluded that the fundamental constitutional values, including, first of all, the human right to entrepreneurship, free enterprise, market economy and responsible government to civil society – are the functional and teleological dominant of the business-ombudsman, the feasibility and practice of which, and is due to the solution of these interrelated problems. Key words: ombudsman, business-ombudsman, human rights, entrepreneurship,business, control, rule of law, democracy.