Інститут бізнес-омбудсмана у вимірі конституційної економіки: доктринальні та праксеологічні аспекти

The article provides a comprehensive doctrinal and praxeological analysis of the constitutional and legal framework for the activities of the business ombudsman in Ukraine in the context of constitutional economics. The author’s position is based on the fact that in the modern world, the classic institution of the ombudsman is undergoing transformation and modification, which is primarily manifested in the emergence of new models and the development of its functional specialisation in protecting certain categories of subjects of constitutional and legal relations, which is determined by the internal needs and national interests of states, the need to strengthen the protection of the most vulnerable segments or groups of the population in legal terms, or the use of the ombudsman’s powers to protect human rights in specific areas of life. For Ukraine, this institution is the business ombudsman. It is argued that the emergence of the business ombudsman institution is evidence of a fundamental change in perceptions of legal protection mechanisms. In a paradigmatic sense, the institution of the business ombudsman is a tool for overcoming the monopoly of judicial protection as the only legitimate means of restoring rights by establishing a multi-level model where legal influence is exercised through recommendations, soft law, reputational pressure and mediation. This indicates a transformation of the constitutional principle of the rule of law from a purely formal legal understanding to a procedural and communicative one. It is argued that the business ombudsman occupies a special place in the paradigm of «good governance», which institutionalises the principles of accountability, transparency, and efficiency; acts as an indicator of the maturity of the state’s administrative culture; and combines legal and managerial mechanisms for regulating economic and related relations. With this in mind, it can be concluded that, paradigmatically, the business ombudsman is not so much a control tool as a tool for correcting management dysfunctions and eliminating the shortcomings and consequences of poor public administration of the business sphere. The main factors behind the emergence of the business ombudsman institution are considered. On this basis, it is proven that the genesis of the business ombudsman institution is the result of the combined action of various determining positive and negative historical, cultural, political, legal, socio-economic and ideological factors that have been formed historically and institutionally in the process of transformation of modern states and legal systems. This is not a one-off political and legal act, but a natural stage in the evolution of public legal mechanisms for the protection of human rights, caused by the complication of socio-economic relations, the crisis of classical instruments of administrative and judicial protection, changes in the value orientations of public authorities, etc. Thus, the institution of the business ombudsman emerges as a derivative institution, determined by all previous developments in social life. In the context of constitutionalism and constitutional economics, this primarily concerns the institutional response to structural imbalances between economic freedom, public administration and excessive regulatory influence of the state on business.