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Abstract.
JURISPRUDENCE: TEXTBOOK
KEEPING ACCOUNT OF LEGISLATIVE ACTS
DOI: http://dx.doi.org/10.14420/ru.2019.4.6
Svetlana Boshno, Doctor of Legal Sciences, Professor, editor-in-chief of the journal «Law and Modern States», Professor of the Institute of Public Administration and Civil Service at the Russian Presidential Academy of National Economy and Public Administration of the Russian Federation, e-mail: [email protected].
In 2013 in Issue 6 of our Journal the editorial staff presented a new section «Jurisprudence (Legal Theory)», where we publish fragments of the textbook written by Professor Svetlana V. Boshno. The textbook outlines main concepts of the theory of state and law as an academic discipline. One of its purposes is to convey the content of the course to representatives of other types of legal systems, that is why the textbook is published in Russian and English. Furthermore, choice of the said target group predetermined some methodological and tutorial features of presenting the material. Under this section we have already published the following chapters: Boshno S.V. Interpretation of Legal Provisions // Law and Modern States. 2013. No. 4. PP. 18-26; Boshno S.V. System of Law and System of Legislation // Law and Modern States. 2013. No. 5. PP. 15-35; Boshno S.V. State // Law and Modern States. 2013. No. 6. PP. 64-79; Boshno S.V. Characteristics of Law // Law and Modern States. 2014. No. 1. PP. 62-67; Boshno S.V. Codification // Law and Modern States. 2014. No. 2. PP. 44-51; Boshno S.V. Techniques and Methods of Legal Regulation // Law and Modern States. 2014. No. 3. PP. 52-60; Boshno S.V. Rule of Law: Concepts, Characteristics, Classification and Structure // Law and Modern States. 2014. No. 4. PP. 49-60; Boshno S.V. Lawmaking and Legislative Process // Law and Modern States. 2016. No. 2, and other chapters.
Here we continue publishing fragments of this jurisprudence textbook. This time the subject is the accounting of regulatory legal acts, which is an integral part of the chapter devoted to systematisation of legislation. Traditional educational literature does not pay enough attention to filing legal acts as a form of systematisation, which is often interpreted as pure collecting legislation acts and compiling an array of doc-
uments. However, any work with legislative texts involves initial selecting objects for systematisation. The first objective is to identify regulatory legal acts among all documents. The second objective is to determine the method to be applied to take into account and classify normative legal acts. The author presents certain types of accounting like journal registration, filing, etc. The author pays special attention to computer management of legislative acts, which is most in-demand in modern conditions. The article examines both commercial (Consult-antPlus) and official (pravo.gov.ru) legal information systems. Keywords: filing legislative acts; legislation system; reference legal systems; com-
puter accounting of legislative acts; classifier of legislative acts; statutory and regulatory enactments.
To work with regulatory legal texts, researcher must start with distinguishing such from the general array of legal texts; only then it will be possible to count and inspect them, as well as to check their validity. If legal texts are collected randomly, piled up without a certain systematic approach, then there will be no way to swiftly find any legal document.
The legislation system presents a huge array of texts, aggregated from various sources.
There exist several forms of document management with regard to legal regulations, i.e. keeping journal records, filing, and electronic filing. In fact, document management is the basis for all forms of work with the array of regulatory acts.
Journal records present in fact keeping hard copy records, which involves registration of all incoming adopted regulatory acts.
Filing involves storing legal information on cards, which contain original texts of each normative act along with introduced amendments.
In view of modern technical conditions, we should consider as optimal computer filing performed in the framework of such legal systems as Consultant, Garant, and similar filing systems.
To keep proper record of regulatory legal acts we must clarify the concept of a regulatory legal act, difference between regulatory and individual legal acts, relations between legislation and judicial practice, legal doctrine and other sources of law. The fact that there exists such a problem is evidenced by viewing certain judicial acts as if they were normative acts while actually there is no legislative solution to this effect. For example, according to the Federal Law of 14.06.1994 No. 5-FZ «On the Procedure of Publishing and Entering into Force for Federal Constitutional Laws, Federal Laws, Acts Passed by the Chambers of the Federal Assembly» (Art. 7), the periodical «The Assembly of Legislation of the Russian Federation» serves as an official periodical authorised to publish decisions of the Constitutional Court of the Russian Federation and other acts. The said decisions of the RF Constitutional Court may concern interpretation of the Constitution of the Russian Federation and compliance of the RF Constitution with laws, regulations of the President of the Russian Federation, the Council of the Federation, the State Duma, the Government of the Russian Federation or individual provisions of such acts.
There are still no generally accepted, established by law, criteria for classifying a specific document as an object to be accounted. The instruments currently used to systematise legislation are the RF Presidential Decree No. 511 of March 15, 2000 «About the classifier of legal acts» and «The concept of the system aimed to classify legal acts of the Russian Federation» (developed by JSC «Consultant Plus»).
The classifier of legal acts is designed to unify data banks of legal information, as well as to facilitate automated exchange of legal information between federal state authorities, state authorities of the constituent entities of the Russian Federation, prosecution authorities of the Russian Federation and local governments.
The classifier divides all social relations subject to legal regulation into 20 groups as follows:
010.000.000 Constitutional form of government 020.000.000 Basic public administration 030.000.000 Civil Law 040.000.000 Family 050.000.000 Residence 060.000.000 Labour and Employment 070.000.000 Social Security and Social Insurance 080.000.000 Finances 090.000.000 Economic activities
100.000.000 Foreign economic activity. Customs procedures
110.000.000 Natural resources and protection of natural environment
120.000.000 Information and information systems development
130.000.000 Education. Science. Culture
140.000.000 Healthcare. Physical culture and sports. Tourism
150.000.000 Defence
160.000.000 Security and Law Enforcement
170.000.000 Criminal law. Execution of punishment
180.000.000 Public justice
190.000.000 Public prosecution service. Justice authorities. Advocacy. Notary office 200.000.000 International Relations. International law.
They also distinguish the 21st group:
210.000.000 Ad hoc regulations on personnel matters, distribution of awards, acts of pardon, citizenship, conferment of honorary ranks and other titles.
Herewith we can assume that other types of non-normative legal acts are not subject to systematisation under this classifier.
Each document has a 9-digit code, for example, 010.000.000 stands for «Constitutional form of government». Regulations are coded according to the level of classification. For example, code 010.010.000 is used for the Constitution of the Russian Federation and constitutional acts. These 20 groups (except the 21st group for individual legal acts) serve as the basis for all types of systematisation of legislation. They also serve to incorporate acts against the criteria of their «subject matter/theme». That is why the main page of the application Consultant Plus displays the thematic rubricator based on the Presidential Decree.
Keeping record of legislative acts is a complex and very intensive assignment, since the legislator and other law-making bodies and officials are displaying high activity, which can be illustrated by the fact that in 2017 they adopted 507 federal laws only, not to mention other types of legislative acts. Traditionally, one of the most productive days for legislators is the 31st of December. So, on the last day of 2017 they adopted 26 laws, two of which had the same names: Federal Law No. 481-FZ of 31.12.2017 «On Introduction of Amendments into Certain Legislative Acts of the Russian Federation» and Federal Law No. 482-FZ of 31.12.2017 «On Introduction of Amendments into Certain Legislative Acts of the Russian Federation». The former introduced amendments into 11 laws, the latter - into 9 laws. Besides, amendments were introduced into several codes of the Russian Federation, which play a significant role in the legal system, namely: Urban Planning Code, Labor Code, Housing Code, Criminal Code, Criminal Procedure Code, Air Code, Administrative Offences Code. On the said day some of these codes were amended by different laws, for example, the RF Housing Code was changed by Federal Law No. 488-FZ of 31.12.2017 «On Amendments to Article 103 of the Housing Code of the Russian Federation» and Federal Law No. 485-FZ of 31.12.2017 «On Amendments to the Housing Code of the Russian Federation and Certain Legislative Acts of the Russian Federation». Each of the adopted laws affects entire layers of legal regulation, thus setting a standard of keeping an account of ongoing changes in legislation. A specific feature of all laws that introduce amendments into existing laws is their ambiguity: on the one hand, they are separate laws, since they are adopted as such, but on the other hand they should be treated as part of the laws they actually change. Regulations of such a law that introduces amendments into several laws shall be entered into relevant laws, then into correspondent articles of these laws. Actually, after this is done, the law on introducing amendments can be ignored. Such laws are never considered separately from the correspondent principal law, since in fact they are not independent regulatory instruments.
After a regulatory legal act is adopted, a law-making body files it by assigning it a number. So, after the law is signed by the President of the Russian Federation, a serial number is assigned to it: for federal laws «FZ» followed by an individual number, for federal constitutional laws «FKZ» followed by an individual number. For example, Federal Law No. 44-FZ «On the Contract System of the
Federal and Municipal Procurement of Goods, Works and Services». Every year numbering starts from No. 1, and for this reason different laws adopted in different years can have the same numbers: for example, by 2018 there have been adopted 25 laws with the number 5-FZ. The same number assigned to different documents of the same type negatively predisposes toward errors in the process of search and subsequent application of regulatory legal acts.
Regulatory legal acts adopted by federal state bodies are subject to state registration with the Ministry of Justice of the Russian Federation. They receive their number as the final stage of the registration procedure. A document is granted the status of a regulatory legal act after it has passed stages of the expert review, registration and publication. Its registration number serves as an additional instrument to find it.
The portal pravo.gov.ru uses chronological continuous numbering for regulatory legal acts. It means that consecutive numeration applies to any type of documents, so that decrees, rules, laws and other acts will have sequential record numbers. Thus the Order of the Ministry of Education and the RF Government Decree No. 2548-r of 21.11.2018 published on the same day have numbers 0001201811230001 and 0001201811230002 respectively.
For example, when published, the Decree of the Government of the Russian Federation No. 1391 of 20.11.2018 «On Amendments to Certain Acts of the Government of the Russian Federation» was assigned the number 0001201811230008. Such number is the unique identifier of a legislative act. However, the system «Zakonodatelstvo Rossii» (Legislation of Russia) does not perform specified search against this number on the official publication site. Since there is no available data on other uses of these identifier numbers, we can claim that this number is a form of journal records, where any subsequent document is assigned the next sequence number.
Public authorities keep an account and enumerate the acts they adopt. Difficulties in keeping the record arise when one regulatory legal act is developed and adopted by several authorities. In this case one document can have several codes depending on the number of authorities that participated in the process of development and adoption of the act.
Another difficulty in keeping record and conducting quantitative analysis is caused by the fact that some regulatory legal acts are issued with appendices, which have names of their own, besides each of them can be applied singularly, i.e. regardless of other appendices. Herewith the main document with its own number and other requisites does not include any regulatory prescriptions: it contains only a list of acts that present its appendices and indicates who is in charge of monitoring the given legal complex. For example, the Decree of the Government of the Russian Federation No 96 of February 26, 2010 approves Rules for conducting anti-corruption expertise of regulatory legal acts and draft regulatory legal acts, as well as Methods for conducting anti-corruption expertise of regulatory legal acts and draft regulatory legal acts. Consequently, there are in fact three documents with the same code: the Decree, the Rules, and the Methods.
The system Consultant Plus has the option called «Descriptive text to the document». This option provides the user with basic information about a specific regulatory legal act, such as its number, date of adoption, effective date, the issuing authority, where it was first officially published. This description serves as a non-official registration card for the document. In case some information about the document is controversial, the description shall include a corresponding note, for example, «there is no absolute agreement about the first publication date» or «the document was not registered with the Ministry of Justice», etc.
Библиографический список
1. Boshno S.V. Codification // Law and modern states. 2014. No. 2. PP. 40-46.
2. Boshno S.V. Codification acts and other sources of law: priority problems // In the collected works: Codification of legislation: theory, practice, technique. Materials of the international scientific-practical conference. Nizhny Novgorod, 2009. PP. 120-142.
3. Boshno S.V. Codification // Law and modern states. 2014. No. 2. PP. 44-51.
4. Eliseeva V.S. Keeping an automated record of regulatory materials as a form of systematization of legislation // Legal science and practice: Bulletin of the Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia. 2018. No. 1 (41). PP. 232-236.
5. Kasabyan S.V. Keeping record of regulatory legal acts as a form of system-atization of legislation of the Russian Federation // Eurasian Legal Journal. 2012. No. 5 (48). PP. 63-64.
6. Miriakhyoev M.M. Filing and classification as the main components of systematic record, a type of systematization of legislation // University Bulletin (Russian-Tajik (Slavic) University). 2014. Volume 1. No. 2 (45). PP. 40-46.
7. Shokirov G.A. On the question of keeping record of legislation: theoretical, informational, legal and practical aspects // Bulletin of the Tajik State University of Law, Business and Politics. Social Science Series. 2016. No. 4 (69). PP. 101-109.
1 u.o»ooew'
ABSTRACTS OF ARTICLES PUBLISHED IN RUSSIAN
AT THE SERVICE OF THE FATHERLAND AND LAW: IN TRIBUTE TO THE 95TH ANNIVERSARY OF PROFESSOR V.E. CHIRKIN
DOI: http://dx.doi.org/10.14420/en.2019.3.1
EVOLUTION OF THE INSTITUTE OF ELECTION COMMISSIONS IN RUSSIA
DOI: http://dx.doi.org/10.14420/en.2019.32
Doctor of Political Sciences, Professor, Head of the Department of Parliamentarism and Inter-Parliamentary Cooperation of the Institute of Public Administration and Civil Service of the Russian Presidential Academy of National Economy and Public Administration, e-mail: vv.bakushev @ migsu.ru.
Active formation of bodies designed to organise elections began in the pre-parliamentary period, more specifically in the IX-XVIIth centuries. The author describes three stages of this process. In Kievan Rus with its feudal disunity, Veche (the popular assembly, which existed at local levels in medieval Russia) did not participate much in public administration. It was typical of that period for the Knyaz (Russian Prince) to rule either single-handedly, or to take counsel with his highest ranks attendants only. The period of early absolutism in Russia brought about an almost complete collapse of representative institutions, which meant that electivity processes and procedures were practically abandoned at the national level. The period of enlightened absolutism (reign of Catherine II, 1762-1796), was marked with local government reforms aimed to eliminate an «excessive centralisation of public administration». The early parliamentary period dated back to formation of the State Duma, and it lasted till the breakup of the USSR. The author considers emergence of the institution of election commissions, which serves as a special tool for organising the election pro-
Valery Bakushev,
Abstract.
Law and modern states
3/2019
cess. Having analysed a large number of sources, the author concludes that, in the setting of modern Russia, organisation of elections applies approaches that differ from those applied in foreign practice. For example, while in the United States and Western Europe elections are organised by the executive branch bodies, in countries of Eastern Europe and former republics of the USSR this function is performed by independent election commissions.
Keywords: elections; electoral system; electoral law; periodisation of elector-
al legislation; election commissions; body of electors; representation; pre-parliamentary period; early parliamentary period; modern parliamentary period; central election commission.
DOCTRINE AS A SOURCE OF COPYRIGHT
DOI: http://dx.doi.org/10.U420/ru.2019.33
PhD in Law, e-mail: [email protected]. The Civil Code of the Russian Federation contains the complete list of protected intellectual property, and also a non-exhaustive list of powers of the copyright holder. Among the listed methods that allow to exercise the protected rights in this domain there is the right to make film adaptations, modifications, arrangements, etc., that is to change the presentation form of the piece of art. The audiovisual work is a protected object, so the copyright holder has the right to give permission to revise, rearrange and adapt it. The article focuses on how a scientific doctrine and historical peculiarities of the Russian Federation influence court determinations in the field of recognising a work as a derivative work of some previously existing piece or finding if there has taken place violation of the right to reproduce or to use fragments without creating a new work. To gain a complete understanding, the author examines legislations of France, Great Britain, the USA, Germany, Sweden, Italy, and gives a historical retrospective. The article raises philosophical and social questions of derivations in arts.
audiovisual work; right to revise; copyright; right to reproduce; sources of law; judicial practice of the Intellectual Property Rights Court; freedom of creativity.
NORM-SETTING PROCESS OF THE REPUBLIC OF CRIMEA IN THE REGULATORY DEVELOPMENT SYSTEM OF THE RUSSIAN FEDERATION: PROBLEMS OF INTERACTION AND BALANCE
DOI: http://dx.doi.org/10.14420/en.2019.3A
Ph.D. in Law, Head of the Secretariat under the Office of the State Council of the Republic of Crimea, e-mail: [email protected]. Ph.D. in Law, Associate Professor of the Department of Business and Environmental Law in the Taurida Academy of V.I. Vernadsky Crimean Federal University, e-mail: [email protected].
Lyudmila Golovina, Abstract.
Keywords:
Ilya Bondarchuk, Olga Butkevich,
Artyom Rudenko, Ph.D. in Law, Head of the Department of Administrative and Financial Law of the Crimean Branch of the Federal State-Funded Educational Institution of Higher Education Russian State University of Justice, e-mail: [email protected].
Lyudmila Ryshkova, Ph.D. in Law, Associate Professor of the Department of Business and Environmental Law in the Taurida Academy of V.I. Vernadsky Crimean Federal University, e-mail: [email protected].
Irina Strelnikova, Ph.D. in Law, Associate Professor of the Department of Theory and History of Law and State of the Crimean Branch of the Federal State-Funded Educational Institution of Higher Education Russian State University of Justice, e-mail: [email protected].
Abstract. In 2019 the team of listed authors published the book «Norm-Setting
Process in the Republic of Crimea and Sevastopol (as of 2018)». This article is based on the materials of the said. The article offers the authors' view on how to structure legal relations in the domain of regulatory activities in the Republic of Crimea. The article starts a series of publications aimed to present the research «Integration of Rule-Making Systems of a Constituent Territory and the Federation» made by this group of authors. The article highlights some factors that interfere with integration of rule-making systems; in particular, the article examines organisational, professional, legal, and technical aspects that directly affect the region's law-making policy. The authors give their proposals on how to eliminate issues that entities may face, while forming a single legal space.
Keywords: Republic of Crimea; integration; legal space; law-making; harmonisa-
tion of legislation; legal monitoring; rulemaking system; local government; normative legal act; rulemaking activities; legal regulation.
CONSTITUTIONAL GROUNDS USED TO SYSTEMATISE LEGISLATION IN FOREIGN COUNTRIES
DOI: http://dx.doi.org/10.14420/en.2019.3.5
Tamara Gavasheli, postgraduate student of the Russian Presidential Academy of National Economy and Public Administration of the Russian Federation, e-mail: [email protected].
Abstract. Systematisation problems exist in legal systems of various types. A
comparative analysis shows that it is impossible for researchers to solve these problems if they confine themselves to considering mere legislative techniques, since the issue concerns the very nature of law. We should bear in mind that constitutions do not only determine the content of the entire system of law - they also form the system and the structure of legislation within the framework of general law and its sources in their integrity, deal with the fundamentals, which serve as primary principles of legislation, and determine legal systems as a whole. Taking into account the above-listed properties of constitutions, the author found necessary to examine the content of constitutions of several foreign countries to identify the grounds for systematisation of legislation.
Keywords: systematisation of legislation; incorporation; codification; law-making;
classification of regulatory acts; constitutional review; German law; French law; Swiss law; the US law.
