CC BY
50CORRELATION OF NOTIONS OF SOURCES AND FORMS OF CORPORATIONS LAW
DOI: http://dx.doi.org/10.14420/en.2014.3A
Garnik Adamyan, Legal Counsel of the State-Financed Institution «Curative Occupational Workshop attached to Mental Hospital 3 of Moscow City Health Department» (SFI «COW attached to MH 3 of MCHD»), e-mail: [email protected].
Abstract. The article analyzes bibliography of academic literature on regulatory
legal acts and local legal acts. A comparison is made of attitudes of scholars of the Soviet and Russian jurisprudence. The author brings to light attributes of local legal acts which have synthesized the best practice of researchers and are enriched with the author's attitude. The division of local acts in intraorganizational and externally oriented ones developed by the author is valuable in practice. The author proposes classification of acts according to a number of persons subject to them. On quantitative basis the acts are divided in:
1) regulatory legal acts (affecting an indefinite range of persons);
2) local regulatory legal acts (affecting members of an organization); and 3) ad hoc legal acts (affecting a personified subject).
Keywords: legal act, local legal act, regulatory legal act, normalization, ad hoc
legal acts, law enforcement acts, institution acts, organization acts, corporate acts, generality, generally binding character, competence of state power bodies, legal acts hierarchy.
A definition of a local legal act is not yet formed in legal science and corporate legal culture and is not established by legislation.
The notions formulated in the legal theory are substantially enriched owing to results of research of sectoral sciences - labor, social, municipal and other branches of law.
History of terms. Modern legal science develops theses on local law-making on a sufficiently elaborated foundation created by Soviet scholars. The national legal science of 1960-1980-s actively developed a theory of local law-making in respect to acts of socialist enterprises, collective farms, labor collectives. So, for example, within the confines of labor law theory those problems were developed by S.I. Arkhipov1, V.K. Samigullin2 and other researchers.
1 Arkhipov S.I. The issues of perfection and development of local normative legal regulation // 27th Communist Party Congress and development of theory of state and law. Interacademic collection of scholarly works. - Sverdlovsk, 1987.
2 Samigullin V.K. Specification of law and local statutory regulation // Enforcement of Soviet law. Collection of academic works. Issue 30. - L., 1976. - P. 38-43; The same. Local rules and their types // Pravovedeniye. - 1974. - No 2. - P. 119-121; The same. Systematization of local rules of the Soviet law. Issues of theory: Diss. ... Cand. Legal Sci., 1976.
The Soviet legal theory, as noted by V.K. Samigullin, used the term «acts of state-owned enterprises, institutions and organizations», which were treated as a link of a system of regulatory legal acts established by the state. That was explained, among other things, by the fact that state was owner of enterprises, and acts of organizations were often issued on the basis of standard state forms, such as a Standard charter of a socialist enterprise. As a whole, the problem of local regulation was not immediate in virtue of uniformity of acts and consistency of the legal system. The doctrine about acts hierarchy was actually substituted with understanding of socialist discipline.
With the development of market relations and construction of new Russian nationhood, a critical need emerged of formation of exactly local legal acts. That was accounted for in no small part by quick growth of various legal persons. Subjects of law, citizens had no experience and created legal forms at a guess, trying and forming by their actions a new corporate culture. In the country emerged limited liability companies, joint stock companies, corporations, which was quite new after longstanding domination of socialist property and absence of private business. Theoretic and doctrinal formalization of corporate law took place in the works by T.V. Kashanina1.
Scholarly attitudes to definitions. The corporate law-making theory has sufficiently taken shape in modern legal science, substantial experience has been gathered which needs arrangement and development of appropriate recommendations. The principal directions of regulatory local law-making theory take shape in labor, corporate and municipal law. However local acts are also sufficiently actual in other branches of legislation.
The mentioned observations clearly show timeliness of subject matter of local legal acts definition.
Academic arguments in the field of division or identification of regulatory and local legal acts, as well as criteria of correlation of above-mentioned documents, are of major practical relevance for law-making and law enforcement.
Local legal acts are legal documents containing legal rules adopted by management entities in organizations of various forms of ownership and departmental affiliation2.
This definition is traditionally given in comparison with state regulatory legal acts. In comparative study such attributes of local acts are usually pointed out as their issuance by organizations or enterprises, negligible scope of persons on which they extend their effect, sublegislative nature and some others.
So, Ye.V. Karnaukhova in her work «Local regulatory legal act as an object of general theoretical study» distinguishes the following attributes of local legal acts:
1. They contain legal rules.
2. Local legal acts are subordinate, that is based on laws and subordinate acts,
1 See: Kashanina T.V., Sudarkova Ye.A. Company law. - M., 1997.
2 Komarov S.A., Malko A.V. Theory of state and law. - M., 1999. - P. 317.
cannot contradict them and are in subordinate situation in relation to laws.
3. Those legal acts are issued in an organization by a competent body. A main subject of local law-making is employer.
4. Local regulatory legal acts are issued by an organization for solution of inhouse questions and act only within its limits1.
S.S. Alekseyev offers a following definition of a local legal act: local regulatory legal acts are regulatory subordinate acts issued by an organization only for solution of in-house questions and acting only within its limits. They are in-house in the strict sense of that word, expressing principles of decentralization in legal statutory regulation2.
In the opinion of S.A. Komarov and A.V. Malko, local regulatory acts are legal documents containing rules of law and adopted by management entities in organizations of various forms of ownership and departmental affiliation3.
A specialist in corporate law I.S. Shitkina identifies the following special aspects of local legal acts4:
- local legal acts are based on legislation and other legal acts and cannot contradict them;
- they enforce legislation and other legal acts;
- they are adopted within the limits of facultative authorization and not in contravention of legislative mandative interdiction;
- they are adopted by competent management bodies of organization according to established procedure and do not need approval or approbation by any other bodies, including state ones;
- they circulate among all subjects taking part in an organization interior relations: management bodies, shareholders, employees, administration, structural divisions;
- in some cases (that concerns principally social and labor field and social partnership issues) they are subject to obligatory discussion in work collectives, approbation or coordination with representative bodies of employees;
- they are taken into account by judicial law enforcement bodies in consideration of disputes resulting from internaloperation of organization.
S.V. Ukhina suggests a following definition: «Local legal acts are rules and other instructions of universally binding nature, meant for certain group of persons and regulating main living environment of organization in question». She also distinguishes basic attributes inherent in local acts: 1) they are of rule-making nature; 2) a local legal act is always invested in documentary form (decision, order,
1 Karnaukhova Ye.V.. Systematization of local regulatory legal acts in the Russian Federation: general description and types: Synopsis of thes... Cand. Leg. Sci. - Tyumen, 2011.
2 See: Alekseyev S.S., Yakovlev V.F. Legal regulation of business relationships // Soviet state and law.- No 3. - P. 61-69.
3 Komarov S.A., Malko A.V. Theory of state and law. - M., 1999.
4 Shitkina I.S. Legal groundwork for the activities of a joint-stock company. A set of local regulatory acts. - M., 1997. - P. 256.
regulation, rules, instructions etc.); 3) they should have requisite details; 4) written form is necessary for achievement of uniformity of understanding requirements of a local act as well as possible sanctions for its application1.
A well-known scholar Yu.A. Tikhomirov distinguishes the following attributes of local acts: 1) their adoption in enterprises, institutions, organizations where functions of management and production, commercial, training, academic or other processes are directly combined; 2) coverage in local acts of all functions imposed by statute and regulation on corresponding structure; 3) limitation of action of local acts by field of activity of corresponding structures in establishment of procedures, grounds and range of subjects competent for taking decisions; 4) combination of managerial procedures of decision-taking with selfadministration of labor collective, shareholders and others, with participation of non-governmental organizations2.
Distinguishing attributes of local regulatory acts, it is to be noted that all attributes of regulatory legal acts are inherent in them. So, for example, G.V. Khnykin distinguishes the following common attributes of state and corporate acts within the confines of labor law3:
1. Volitional content. A local regulatory act embodies will of that act developers as well as of subjects and participants of rule-making who expressed their stance on it at various stages of development, discussion and adoption of that document.
2. Official nature. Local regulatory acts get official nature owing to rule-making bodies. Raised requirements are established for centralized legal acts, including procedures of their adoption, publication and making available to law enforcement officials. Absence of official publication means that, first, a rule-making body performs its duties in full, second, grounds are created for infringement of rights and freedoms of citizens.
3. Plurality and hierarchic structure. Hierarchy of sources of law, i.e. establishment of subordinated connections between various forms of law, is material to formation of local regulatory acts system, too.
4. Universal nature is manifested in that they concern an indefinite range of persons of that organization and are meant for repeated application of local regulatory legal acts.
5. Competence of subjects authorized to create a regulatory act and procedure of its adoption are established by the RF Labor Code, other laws and legal acts. In some cases a law-maker grants rule-making bodies a right to establish procedures of regulatory act adoption themselves.
1 Ukhina S.V. Factors and criteria of optimization process of localrule-making // Yuridicheskaya mysl. Research and practice magazine. - 2008. - No 6. - 134-136.
2 Research and practice aid / A.V. Kashanin, Yu.A. Tikhomirov, S.V. Tretyakovet al.; exec.ed. Yu.A. Tikhomirov. - M.: Yurisprudentsiya, 2011.
3 See: Khnykin G.V. Role of local regulatory acts in the system of relations regulated by labor law // Legal relations in the context of development of modern legislation and law enforcement: Proceedings of the International research and practical conference. - Ivanovo, 2008. - P. 199-208.
6. Documentation. A local regulatory act is always a written document. Requirements for its form, language, style of exposition, structure and content, presence of corresponding requisite details are regulated centrally and formulated by scholars.
7. Intended purpose of regulation of socially important social relations.
Together with common features, G.V. Khnykin distinguishes specific special aspects of local legal acts: 1) sublegislative nature. The basis of their formation consists of legal rules of combined effect, which, taking into account local conditions, can be supplemented, elaborated or concretized; 2) a major dominating subject of local rule-making is an employer who can adopt local regulatory acts within the limits of his/her competence; 3) local regulatory acts are meant only for internal use only within the confines of a specific organization. Acts regulating labor and other relations most closely associated with them, are distinguished by higher closeness to employee in comparison with other legal acts; 4) local rules are distinguished by responsiveness to social organization of labor; 5) flexibility of application of labor legislation to specific production conditions and variety of local rules provide an opportunity to establish advantages of certain organizations over the others; 6) local rules have social orientation; 7) harmonization of interests of employees and employer through implementation of the checks and balances system of the parties exposed in corporate acts1.
Analysis of the mentioned positions of scholars and practice of corporate law-making makes it possible to emphasize acknowledged attributes of local legal acts to which the following ones are referred: 1) they contain rules of law; 2) are of sublegislative nature; 3) are adopted within an organization by competent bodies; 4) concern a certain group of persons; 5) have documentary form.
Among the attributes of a local act the most significant ones appear to be: origin of those documents, procedure of their adoption, issuing authority or person.
Specific nature of exactly local legal acts lies in the fact that they are not issued by agencies of state power and their functionaries. Their source is decision of an organization represented by its authorized bodies. However often a pretext, cause and ground of issuance of a local act is a state document. So, for example, a variety of documents in the field of circulation and protection of personal data is issued by legal persons on the strength of express instruction of the Labor Code or Federal law about protection of personal data. Such state initiative on issuance of act by an organization enables us to see in local legal acts a variety of sublegislative legal regulation.
Of principle is the issue of range of persons on which the effect of a local legal act is extended. Classification of legal acts in intraorganizational and externally oriented ones provides a means to determine its legal form and to establish its place in a legal regulation system. In other words, there are acts having effect on all and sundry, and there are those which have effect on members of organization
1 Khnykin G.V. Establishment and development of local labor law in Russia // Studies of Law Department. Book 12. - M. - 2010.
(enterprise, party or other structured entity). An effect of various acts within a system and outside it has a constitutional origin. So, in accordance with the Art. 15 of the RF Constitution, regulatory legal acts affecting the rights and freedoms of a person are subject to official publication. Interpretation of that rule allows us to state that an effect of an act within organization is a ground for implementation of act without its official or other publication. That thesis is not to be understood rectilinearly as a license to hide legal instructions of intraorganizational nature. The point at issue is that local acts meant for organization members are brought to an attention of members by other means. It being understood that all interested persons can have a look at it. So, a traditional method of familiarization in labor law is an employee's signature.
Intraorganizational nature of local acts means extension of acts effect on members of that organization, membership in organization, presence of organizational and legal connection between an issuing body and a subject of law directly. That problem is connected with determination of subjects on which the effect of a specific document is extended.
Of major significance for theoretic and legal studies is a notion of indefinite range of persons on which the effect of an act is extended. For corporate law a quantitative criterion is of no importance, it is presence of organizational connection that is important.
Regulatory acts are a form of positive law which acts regardless of a specific subject, it exists objectively. Corporate law is applied only to members of that corporation and is not extended on other persons.
In light of the foregoing, local regulatory legal act may be regarded as a legal document which contains rules of law, is adopted by appropriate bodies of organization for regulation of intraorganizational issues and pertains to a certain range of persons. A definition «local act» is a generic one. Local acts can be regulatory or individual. A doctrine of regulatory legal acts issued by state power bodies can be adapted to local acts by reference to their specific features.
Classification of acts according to number of persons which it extends on, appears to be the following:
1) regulatory legal acts (affecting an indefinite range of persons); 2) local regulatory legal acts (affecting members of organization); and 3) individual ones (affecting a personified subject).
References
1. Alekseyev S.S., Yakovlev V.F. Legal regulation of business relationships // Soviet state and law. - № 3. - P 61-69.
2. Arkhipov S.I. The issues of perfection and development of local normative legal regulation // 27th Communist Party Congress and development of theory of state and law. Interacademic collection of scholarly works. - Sverdlovsk, 1987.
3. Karnaukhova Ye.V. Systematization of local regulatory legal acts in the
Russian Federation: general description and types: Synopsis of thes... Cand. Leg. Sci. - Tyumen, 2011.
4. Kashanina T.V., Sudarkova Ye.A. Company law. - M., 1997.
5. Komarov S.A., Malko A.V. Theory of state and law. - M., 1999.
6. Samigullin V.K. Specification of law and local statutory regulation // Enforcement of Soviet law. Collection of academic works. Issue 30. - L., 1976.
7. Samigullin V.K. Local rules and their types // Pravovedeniye. - 1974. - No 2.
- P. 119-121.
8. Samigullin V.K. Systematization of local rules of the Soviet law. Issues of theory: Thes... Cand. Leg. Sci. - M., 1976.
9. Research and practice aid / Kashanin A.V., Tikhomirov Yu.A., Tretyakov S.V.
10. Ukhina S.V. Factors and criteria of optimization process of local rule-making // Yuridicheskaya mysl. Research and practice magazine. - 2008. - No 6. -P. 134-136.
11. Khnykin G.V. Role of local regulatory acts in the system of relations regulated by labor law // Legal relations in the context of development of modern legislation and law enforcement: Proceedings of the International research and practical conference. 2008. - Ivanovo. - P 199-208.
12. Khnykin G.V. Establishment and development of local labor law in Russia // Studies of Law Department. Book 12. - M., 2010 - P 307-316.
13. Shitkina I.S. Legal groundwork for the activities of a joint-stock company. A set of local regulatory acts. - M., 1997.
