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COMPARATIVE STUDY
INVESTMENT LAW AS A STRUCTURAL ELEMENT OF THE RUSSIAN SYSTEM OF LAW
Popova Anna, Doctor of Legal Sciences, Professor of the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected].
Abstract. The article proves that the investment law is a structural element
of the system of law and presents analysis of the thesis that the investment law is a complex legislation area, which combines standards of various branches of legislation (i. e., civil, international, financial, banking law). The author introduces the concept of determining components of the investment law (investments, investment policy, investment contracts, investors' activities, etc. ) as inter-branch (complex) legal institutions, and the investment law in general as an integrity of complex (interdisciplinary) institutions. On the basis of the comparative analysis of the concepts «investment law» and «investment legislation» the author suggests that the term «complex legal entity» should be introduced into scientific use.
Keywords: system of law, legislation system, investment law, complex area of
law, complex legal entity.
It is generally recognized that problems of law and legislation, especially those of their structure and criteria of identifying individual structural elements have always composed and are composing a fundamental part of the theory of law1. Such role of these problems results from the fact that «the legal doctrine is intended to determine objectives of norm-setting activities in such a way that every Russian law functions as the organic whole, for it is the structure of the leg-
1 See, for example: Dembo L. I. O printsipakh postroeniya sistemy prava [About Principles of Creating the System of Law] // Sovetskoe gosudarstvo i pravo [Magazine «Soviet State and Law»]. 1956. №. 8. P. 93; ShargorodskyM. D, loffe O. R. O sisteme sovetskogo prava [About the System of Soviet Law] // Sovetskoe gosudarstvo i pravo. 1957. № 6. P. 100-110; AlexeevS. S. O teoreticheskikh osnovakh klassifikatsii otraslei sovetskogo prava [About the Theoretical Basis for Classification of Branches of the Soviet Law] // Sovetskoe gosudarstvo i pravo. 1957. № 7. P. 99; Raikher V. K. O sisteme prava [About the System of Law] // Pravovedenie [Magazine «Legal Science»]. 1975. № 3. P. 60-69; Livshits R. Z. Otrasl prava — otrals zakonodatelstva [Branch of Law — Branch of Legislation] // Sovetskoe gosudarstvo i pravo. 1984. № 2. P. 26-32; BobylevA. I. Problemy pravoponimaniya, formirovaniya sistemy prava i sistemy zakonodatelstva [Problems of Understanding the Law, Formation of the System of Law and Legislative System] // Pravo i Politika [Magazine «Law and Politics»]. 2002. №. 2. P. 7 — 15; Baitin M. I. PetrovD. E. Sistema prava: k prodolzheniyu diskussii [System of Law: to continue the discussion] // Gosudarstvo i pravo [Magazine «State and Law»]. 2003. № 1. P. 25-34.
islation that serves as the basis, on which legislation is systematised and codified, its inconsistencies and contradictions are eliminated, many issues in regard to applying legislation are solved, legal technique is improved»1. In this regard T. Ya. Khabrieva rightly notes that in the context of ongoing scientific and technological progress there appear new forms of relations, for which traditional legal mechanisms cannot be applied, herewith creating the necessity to establish a new legal regulation2.
The Russian legal science has recently been witnessing active debates about forming new structural elements in the system of law. The place and nature of the investment law is one of the topics of these discussions. The phenomenon that science and scientists are paying more and more attention to the system of law accounts for the fact that its problems have always been a fundamental part of the theory of law, and the theory of law undoubtedly has both theoretical and practical value, for the purpose of the legal doctrine is to predetermine objectives of the rulemaking so that it provides for achieving the ultimate goal, which is functioning of law as the whole3.
As social relations are developing, there arises a need to legally regulate them, including regulation by means of complex normative legal acts. Therefore, it should not be viewed as the only possibility to structure the system of law by dividing it into norms of law, law institutes and branches of law, since we are facing formation of new, so called «secondary integrated structures», one of which, in our opinion, is the investment law.
The essence of the investment law can be revealed through the prism of several categories.
Firstly, we can consider it to be a legal entity, i. e.combination of legal norms, i. e. the law in the objective sense. Secondly, you can think of the investment law as the area of legislation. The most widely recognised approach is as follows: the investment law is a complex branch of legislation that includes norms, which originally pertain to such branches as civil, international, financial, banking legislation. Among other things, it is pointed out that the investment law cannot be considered an independent branch of law, since it does not have a self-consistent subject-matter and the method of legal regulations of its own; the subject of its regulation can embrace inherently most different relations that in many cases have adverse character (civil or administrative), hence, when considering the mechanism of legal regulation regarding investment operations and investment relations, we deal with a specific branch of legislation, rather than that of law. Nevertheless, this very assumption makes it necessary to handle problems of interaction between the system of legislation and
1 Khabrieva T. Ya. Migratsionnoe pravo Rossii (teoriya i praktika) [Migration Law in Russia (Theory and Practice)]. Moscow. Yuridicheskaya firma «KONTRAKT» [Law Firm «Contract»], 2008. P. 336.
2 Khabrieva T. Ya. Pravo i modernizatsiya ekonomiki [Law and Modernization of the Economy] // Zhurnal zarubezhnogo zakonodatelstva i sravnitelnogo pravovedeniya [Foreign Legislation and Comparative Law Magazine]. 2010. №. 1. P. 5.
3 Khabrieva T. Ya. Migratsionnoe pravo kak strukturnoe obrazovanie rossiiskogo prava [Migration Law as a Structural Entity of the Russian Law]. // Zhurnal rossiiskogo prava [The Russian Law Magazine]. 2007. № 11. P. 3.
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the system of law fully and adequately, to study features and detect regular patterns in how structural elements of the system of law (meaning in the first place, those of branches of law) are formed and developed.
In this context it should be specially noted that in legal literature there appeared a tendency to confuse the following concepts: «Branch of the investment law» and «branch of the investment legislation». Such confusion results in an unjustified substitution of one concept with the other1. In Russia a considerable legislation corpus in the area of regulating investments is in force, however, despite the fact that the issue has been widely discussed, so far there remains in abeyance the question about the level of systematic organisation for this corpus, in other words, about the place of the investment law in the Russian system of law and legislative system. Taking into account an enormous role and significance of investments and investment relations in the Russian Federation, we are confident that currently it is important to analyse the specific character of the nature and place of the investment law in the Russian Federation, it being a structural component of the system of law and legislative system, aimed to contribute to consolidating legality and regulating investment relations, which play such an essential role for the state and society in view of modernization of the Russian economy that is now taking place.
Herewith we feel obliged to specify that it is impossible and unwise to study the Russian investment law as a structural element of the system of law apart from the investment legislation.complex approach to such studies is a must, because the content of law necessarily needs to be clearly expressed in reality, while such an expression ad extra is realised through execution of the will of the society in juridical sources of law, which, according to A. F. Shebanov2, in fact present the actual «existence itself» for the content of law. In this connection it is important to note, that in reality the content and the form of law «do not exist apart from each other: a formless content of the law is as unthinkable as its senseless form. The content of the law exists only as long as it is formalized»3. On this assumption many scholars4 conclude that the system of law is a primary, initial, basic entity in relation to the legislative system5.
In any case, neither the system of law nor the legislative system, are self-sufficient, so they cannot function and develop individually, apart from each oth-
1 By the example of the transport law: see, e. g.: Yampolskaya Ts. A., Livshits R. Z. Sistema sovetsk-ogo prava i perspektivy eyo razvitiya [System of the Soviet Law and Perspectives of its Development] // Sovetskoe gosudarstvo i pravo. 1982. № 6. P. 94.
2 Shebanov A. F. Sistema zakonodatelstva kak nauchnaya osnova kodifikatsii [Legislative System as the Scientific Basis for Codification] // Sovetskoe gosudarstvo i pravo. 1971. № 12. P. 31.
3 Shebanov A. F. Forma sovetskogo prava [Form of the Soviet Law]. Moscow, 1968. P. 24 -25.
4 See, for example: Alekseev S. S. Obshchaya teoriya sotsialisticheskogo prava [General Theory of the Socialist Law]. Issue 1. Sverdlovsk, 1963. P. 211.
5 However, the so-called E. Gellner's paradox is typical of most post-socialist states: emergent democracies strive to implement a project of a new social structure «from above» and as quickly as possible to put into operation a civil society and market economy. Due to this paradox in Russia historically there was formed a situation, when the legislative system leads the way for the system of law, and as this takes place the natural order of things is changed, because naturally it is the system of law that must lead, not the other way around.
er. The author shares the position of E. A. Cherenkova about two aspects1 in identifying the interaction between the system of law and the legislative system: «in the first place, any theoretical study in the field of differentiating the system of law, is to be intended to improve the legislative system, since a theory cannot and should not exist for itself; in the second place, forming the legislative system as a process must have a theoretical basis, and it is particularly relevant for systematisation of legislation»2.
In the third place, the term «investment law» is also used to denote a special academic course that presents systematised information about the investment law viewed not only as a structural unit of the system of law and the legislative system, but also as a legal science with basic principles and categories of its own.
In the fourth place, the term can be explained through the legal category «branch of law». In Russian legal literature it was A. G. Bogatyrev who started developing the concept of forming the investment law as a branch in the Russian system of law and the international investment law as a tool of the branch of the international economic law. In his book «Investment Law»3, when viewing the investment law as a branch of law, he noted that «the transition to market economy implies development of the investment law as a branch of law in the national system of law»4. However, this approach has a number of shortages, for example, when analysing legal regulation in this country and in the world as basic forms (or types) of legal regulation of the investment law, the author means only foreign investments.
In the fifth place, the investment law is viewed as one of branches of scientific knowledge, which, prima facie, implies obtaining scientific knowledge with regard to how to attract, use and control investments and investment operations, and also the knowledge on legal regulation of relations related to investors' responsibility for actions that contravene legislation. Still, practice of emerging investment legal relations is remarkably ahead of the national legal science, because there were adopted and are currently in force packages of regulatory legal acts intended to provide for direct regulation of investment relations, whereas in science these legal acts are either studied as mechanical synthesis of relations, regulated by means of civil, administrative, financial, international private law and other branches of law, or not studied at all.
Needless to say, all the meanings of the term «investment law» we discussed above, i. e. those of a normative entity in the system of law, a branch of legislation, science and an academic course, are connected in a certain way, forasmuch they concern the same phenomenon, namely investment activities, but
1 See: Cherenkova Е. А. Sistema prava i sistema zakonodatelstva RF: ponyatie i sootnoshenie [System of Law and Legislative Systemof the Russian Federation: Concept and Correlation]: Synopsis of the thesis of the candidate of legal sciences. Moscow, 2006. P. 5.
2 Ibidem.
3 Bogatyrev A. G. Investitsionnoe pravo [The Investment Law]. Moscow: Rossisskoe pravo [Russian Law], 1992. P. 272.
4 Ibidem. P. 52-53.
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they do not fully coincide with each other, since different criteria were used to form their individual foundations and contents.
In order to conduct research of factual legal phenomena in modern life, the Russian legal science needs academically justified, concise, unified corpus of categories. Thereupon, recently in the contemporary legal literature authors have been debating about the nature of the investment law, and the questions raised included the following: Is the investment law a complex legal institution, a sub-branch, a legislation corpus solely, or a self-consistent branch of law? How norms are to be united within this legal entity? Is it possible to declare the complex nature of the investment law, because it is composed of norms from different branches, or is it a separate entity, based upon other principles rather than that of complexity, which exists on equal terms with other key branches of law? We ought to subscribe to an opinion of S. P. Moroz who argues that the investment law presents a unified legal formation, which is noted for integration of the institutions it is composed of, and combines norms from different branches of law. For that matter the investment law is a complex legal entity that coexists with fundamental and complex branches of law, and occupies a peculiar place of its own in the system of law1. Herewith, it is important to keep in mind that the investment law is closely related to civil, entrepreneurial, financial, administrative branches of law, since the social relations that comprise the subject-matter of the investment law at the same time present part of the subject-matter of the above-mentioned branches of the Russian law.
In our opinion, the investment law is formed as a complex entity, being affected by a combination of norms of the public and private law. However, neither the nature of this complex entity, nor the investment law itself, have been studied in full measure yet. It can be evidenced by the fact that some authors in the given area determine the investment law as an inter-branch complex of legal norms that includes norms of the constitutional, civil, administrative, financial and some other branches of law2, but without a deep and comprehensive analysis of this phenomenon on the basis of fundamental theory of law, for the academic concept «a branch of law» by itself excludes the very possibility of the complex character. On the other hand, as of today many scholars in their research define the investment law as a branch of law, by identifying its own subject-matter and method of legal regulation3.
In conclusion we would like to note that we consider the concept we propose to be the most viable of all the presented concepts regarding the nature and place of the investment law. Our concept determines independent parts of the investment law (investments, investment policy, investment contracts, investment activities, etc. ) as inter-branch (complex) legal institutes, and the
1 For further details see: Moroz S. P. Printsipy investitsionnogo prava [Principles of the Investment Law] // Zhurnal rossiiskogo prava. 2003. № 3. P. 55-61.
2 See, for example: Law Dictionary. Moscow, 2000; Maifat A. V. Grazhdansko-pravovye konstruktsii investirovaniya [Civil Law Patterns of Investments]. Moscow, 2006.
3 For further details see: Bogatyrev A. G. Referenced thesis; Farkhutdinov I. Z, Trapeznikov V. A. Investitsionnoe pravo [The Investment Law]. Study and Practice Guide. Moscow, 2009; Gushchin V. V., OvchinnikovA. A. Investitsionnoe pravo: uchebnik. [The Investment Law: textbook]. Moscow, 2006.
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investment law as a whole as an integration of complex (inter-branch) institutes.
In comparison with other approaches, the given approach has a number of advantages, expressed in the fact that it simultaneously allows, on the one hand, to trace the idea of obviously complex character of regulating social relations within the framework of the investment law, and, on the other hand, to avoid being inconsistent with foundations of the theory of law, because few would question existence of complex (inter-branch) institutes in the system of law as distinguished from doubtful complex branches.
References
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2. Baitin M. I., Petrov D. E. Sistema prava: k prodolzheniyu diskussii [System of Law: to continue the discussion] // Gosudarstvo i pravo [Magazine «State and Law»]. 2003. № 1.
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