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Roundtable on the legal regulation of the system of regulatory legal acts and russian laws in the draft federal law "on regulatory legal acts in the Russian Federation"
DOI: http://dx.doi.org/10.14420/en.2015.2.2
D. M. Demina, A. M. Mikheyeva, Z. P. Tebuyeva, A. A. Karmalita, V. A. Pashkov, K. A. Lebedenko, A. V. Artyushin, S. V. Chertoryzhskiy, U. I. Zakirova, V. Kh. Bytdayeva, O. A. Podgrushnaya, V. V. Shirshikov
Abstract. The law "On regulatory legal acts" is going to become a key element
in the legal and legislative system of the Russian Federation. In 1996, a bill under such name was passed in the first reading, though withdrawn in 2004. In December 2014, a new version of the bill was placed under consideration. The significance of this lawmaking solution and the contents of the bill became the focus area of the roundtable held in the Russian Presidential Academy of National Economy and Public Administration. Attendees of the scholarly dispute performed the review of the draft and introduced proposals on improvement. They suggested clarifying the terms and definitions of the lawmaking and lawmakers, upgrade the rules of lawmaking legislative technique, the procedure of registration and interpretation of regulatory legal acts. The researchers put forward their suggestions with regard to hierarchy of the laws and regulations, and spotted the relevance of the publication issue. The draft law calls for detailed regulation of the procedure of the nationwide discussion and recording the results thereof, as well as regulatory legal acts ceasing to be in effect.
Keywords: regulatory legal act, regulation, law, by-laws, publication, enactment
of a regulatory legal act, operation of a regulatory legal act, legal effect of an act, planning of lawmaking, legislative technique, lawmaking, legislative process, stages of legislative process, lawmakers.
On 21 May 2015, the master's degree students for the program on the Legal Support for State and Municipal Administration at the Russian Presidential Academy of National Economy and Public Administration held under the guidance of Professor Svetlana Vladimirovna Boshno, Head of the Chair of Political Science, Associate Professor of Law, a Roundtable on the Draft Federal Law "On regulatory legal acts in the Russian Federation" suggested for the public discussion by the Russia's Ministry of Justice.
In her opening word, S.V. Boshno mentioned that the legislator defined in its explanatory note the key practical objective of this bill as "harmonizing the system
Roundtable on the legal regulation of the system of regulatory legal acts and russian laws in the draft federal law "on regulatory legal acts in the Russian Federation"
of the regulatory legal acts in the Russian Federation, regulating the entire 'life time' of the regulatory legal acts, from drafting till termination thereof". One cannot but agree to that, as the issue related to solving the problem of the legislative process harmonization has been long pending and can be settled by the immediate enactment of the named bill. Public discussion of the regulatory legal acts can also contribute to improvement of their legal quality, this Roundtable being an important component of such public discussion.
In the discussion with the draft law under consideration, the speakers were the master's degree students for the program on the Legal Support for State and Municipal Administration of the State Service and Management Institute at the Russian Presidential Academy of National Economy and Public Administration. Each participant and attendee of the Roundtable performed his or her own research of most essential aspects, from drafting and introducing the bills for public discussion and up to the publication and registration thereof. Summarizing the opinions and suggestions voiced, one can form an estimate concerning the significance and expedience of passing this law bill.
Having considered the key provisions of the law bill, Z.P. Tebuyeva, accentuated the definition of lawmaking as one of the main defects of legislative technique and pointed out that review and comparison of the provisions of sections 2 and 4 of this law bill are challenging its unambiguity.
The legislator has provided in section 4 of the law bill the exhaustive list of the lawmakers, having specified that the authority to adopt (issue) the regulatory legal acts in the Russian Federation shall lie upon the "Russian citizens", as well as "local self-governing bodies and officials", in addition to the governmental agencies. Alongside, it is stated in the definition of the term 'lawmaking' in section 4 of the law bill that lawmaking constitutes the official activities performed [solely and exclusively -Z.T.] by the governmental authorities on development and enactment of the regulatory legal acts. Such controversy in the text of a law bill is inacceptable.
The definition of lawmaking, subject to the list of lawmakers provided by the legislator, can be as follows: "Lawmaking is the official activities performed by the authorized actors (federal governmental agencies, governmental agencies of the constituent entities of the Russian Federation, local self-governing bodies and officials, as well as citizens by way of referendum) within the scope of their powers and competence on establishing, amending and repealing regulatory legal acts".
D.M. Demina spoke on the issue of the official interpretation. In cases where the regulatory legal acts contain ambiguity or uncertainty, the law enforcer can resort to the interpretation of the legal rules, which constitutes the activities performed by the authorized public agencies, courts, civil society structures, specialists and individuals on clarification and explanation of the law.
The author's interpretation is understood as the official clarification effected by the agencies having enacted (issued) the regulatory legal act. Such clarification is referred to as the authentic one. It is also considered to be the most acceptable, as it is solely the governmental authority having issued the rule of law can provide correct and undistorted interpretation of such regulatory legal act, though there can be no
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guarantee or assurance thereof.
Delegated interpretation is also a controversial phenomenon, as the very sense of the regulatory legal act is frequently distorted. Judicial interpretation is of importance as it prevails over the institutional construction. It is described in clause 4 section 58 of the bill as follows: "the legal effect... is defined by the federal constitutional laws". It appears that the description of the interpretation of the regulatory legal acts in the law bill is solely formal in nature. Pursuant to clause 2 section 57 of the bill, no interpretation of a regulatory legal act can alter its sense. However, in real terms, it is quite frequent when the understanding of the laws was so distorted, as to change the entire law enforcement practice. Therefore, in terms of interpretation of legal acts, the document is mostly formal with no elucidation of the processes accepted in the legal practice.
The discussion was continued by V.V. Shirshikov reporting of the law bill provisions related to the hierarchy of the regulatory legal acts. He pointed out that one of the key practical effects of this bill is probably the rule provided by the legislator establishing the hierarchy system of the regulatory legal acts that used to be omitted in legislation. However, the suggested construction of the hierarchy of the regulatory legal acts contains some inaccuracies and discrepancies that should be discussed and eliminated prior to enactment of the law.
Thus, for example, the provision under section 10 of the law bill empowers the President of the Russian Federation to issue the decrees that would fill in the gaps in the sphere of federal statutory regulation, have no legal force of the federal law and be in effect until the relevant federal laws are enacted.
Such wording is actually introducing to the Russian law the institute of delegated legislation known historically in the Russian lawmaking as the "law by decree". In the speaker's opinion, it would be reasonable to renounce the right to issue temporary decrees filling in the gaps in regulation, because the head of the state is already entitled to bring in a bill as a priority one, while the high promptness of the Russian legislative body allows enacting laws as soon as possible.
A.M. Mikheyeva spoke on the problems of the legal technique and the urge to ensure to the greatest possible extent the complete and accurate correspondence of the form of the statutory prescriptions to their contents. She reported that the most important aspect of the legal technique is defining the subject matter of the law, which is possible solely with the view to the thorough study of the existing legal material and the review of the live social practice. Nothing but such approach will enable the law to embody the expression of the social interests. Under section 21 of the bill, the information framework of the draft regulatory legal act is established, while clause 1 section 18 thereof provides for the possibility of engaging experts and scientific organizations in the preparation process.
The speaker also described the way in which the bill defines the form of the regulatory legal acts and touched upon the legislative language as the specific part of the legislative technique with the emphasis on the requirements to the law vocabulary and the compliance with the legal certainty principle established in clause 2 section 30, whereunder the regulatory legal act shall contain the definitions of the terms
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introduced as well as legal and other technical terms. It can resolve the problem only partially as refers to definition just of the terms being introduced.
The problem of controversy between the rules of the international and national law and the ways of solution were covered by U.I. Zakirova. This issue is addressed in chapter 3 "Applying the rules of the international law in the system of the regulatory legal acts of the Russian Federation" that, in the speaker's opinion, lacks the regulation on publication of the regulatory legal acts aimed at implementation of the international treaties of the Russian Federation applied provisionally or on the obligation of the relevant authorized agencies to enact (issue) the regulatory legal acts related to provisional application of the certain international treaty. Such regulation could make it possible to eliminate one of the gaps in Russian law.
It is important to note the matter of the regulatory acts non-registered and (or) non-published in accordance with the established procedure, but being contrary to any international treaties. Although such acts have no legal effect as they have not been enacted, there is case practice established where the courts refer to the information letters and memorandums of the executive authorities, being in their essence the regulatory legal acts. It appears reasonable to provide the base for publication or repealing thereof, due to frequent cases related to the powers of the governmental authorities to issue 'advisory' or 'explanatory' letters and memorandums.
V.Kh. Bytdayeva presented her analysis of chapter 9 of the law bill dealing with the official publication of the regulatory legal acts. The speaker emphasized the urge of exercising the right to information on the new laws and regulations and related the existing rules settling the procedure for publication of laws. It was noted that the requirement to give the public note is extended to the by-laws as well.
According to the speaker, the named chapter of the law bill should also give consideration to defining the uniform space for publication of the regulatory legal acts, providing for web-publishing development and, in particular, improving the official web-publisher at www.pravo.gov.ru, allowing for the access of all parties concerned to the text of the regulatory legal act with due regard to the key problem in the finding whether the parties had the opportunity to study the text.
The speech of A.V. Artyushin was focused on the registration procedure of the regulatory legal acts. He expanded on the Explanations on applying the Rules of drafting the regulatory legal acts of the federal executive agencies and state registration thereof approved by the Order of the Ministry of Justice of the Russian Federation dated 04.05.2007 № 88 and pointed out the requirements as to the state registration procedure of a regulatory legal act. The speaker arrived at the conclusion that the provisions of the law bill concerned are generally in accordance with the existing acts.
The report presented by S.V. Chertoryzhskiy was related to the procedure of drafting the acts and regulations of the Russian Government and federal executive agencies. The speaker brought to notice the hierarchy nature of the legislative system comprised by the legal acts issued mostly by the governmental authorities having the relevant competence in this area. The procedure of issuing the regulatory legal acts is tightly specified, so preparation and introduction of the regulatory legal acts
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of the RF Government is currently effected in compliance with the requirements of the Regulations approved by the Regulation of the Government of the Russian Federation dated 1 June 2004 № 260. With the view to the need in harmonization the existing laws and improving the practice of drafting and enforcing of the newly issued regulatory acts, it appears reasonable to establish the procedure for and the requirements to preparation of the relevant acts prevailing over the acts issued by the RF Government. The solution of this problem can be facilitated by enactment of the relevant federal law.
Such solution will make it possible to create the proper hierarchy and subordination of the regulatory legal acts issued, as well as to relate in more details and in a more plain language the key stages of drafting a regulatory legal act with description of the interaction procedure of the parties concerned.
The matters of public discussion of the draft regulatory legal acts were covered by O.A. Podgrushnaya. There is a practice that dates back to 80's of the last century of public discussion of bills and other significant decisions reviving now in the Russian Federation under new state legal and technological conditions. However, no special law has been enacted yet to provide integrated regulation for the named relations, though some elements thereto has already found reflection at law. The relations attributed to discussing the draft laws and other regulatory legal acts are governed at the level of some constituent entities of the Russian Federation as well.
The process of development of the 'public discussion' has recently intensified, the Internet resource Russian Public Initiative ("Rossiyskaya Obshchestvennaya Initsiativa") was created (at www.roi.ru), while the project Active Citizen ("Aktivniy Grazhdanin") is functioning within the area of Moscow (at www.ag.mos.ru) initiated by the Moscow City Government and allowing via internet application on the mobile phone for e-referendums, where people can discuss issues of the city importance.
The pursuance of increasing efficiency of the public discussions conditions the necessity to establish the relevant legal foundation. To this end, as the speaker reckons, there is no need in supplementing and redefining the fragmented rules in effect; alternatively, the comprehensive federal law should be enacted on the public discussion of the draft federal laws and other important decisions obligating the legislator to consider in an unprejudiced and fair manner all the suggestions received.
Some proposals related to the expertise and public discussion were introduced by A.A. Karmalita. He believes that the regulating effect assessment should be provided in addition to the legal and anti-corruption expertise. Such assessment shall accompany any law bills introduced to the State Duma, those governing business and entrepreneurial activities in the first place.
In his opinion, the provisions of clause 2 section 24 are contrary to clause 1 thereof. Due to this fact, he suggested that clause 2 section 24 should be revised to read as follows: "The procedure for public discussion of the draft regulatory legal acts made available in the information and telecommunication network (Internet) shall make it possible for the public to study the text of the draft and the suggestions provided by the public during the discussion related to making amendments and supplements thereto with the opportunity to express one's opinion without restriction".
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The discussion was continued by K.A. Lebedenko speaking on the procedure of consideration of the regulatory legal acts. He pointed out that section 36 of the bill is aimed at expanding on consideration of the draft regulatory legal act as one of the essential stages of lawmaking process. That said, he noted the controversy between the contents of this section and the title of chapter 8 "Enactment (issuance) of the regulatory legal acts", section 36 establishing the procedure for consideration law bills in particular, rather than regulatory legal acts in general. By doing this, the legislator left out of this process such lawmakers as the Russian citizens or representative bodies of municipalities and omitted the procedure for consideration of the regulatory legal acts originating from such parties. In his opinion, this section is more likely to provide the reference summary of consideration of a regulatory legal act, constituting a complicated and multi-faceted process. In order to bring the section in compliance with the law, it was suggested that section 36 should be amended to read as follows:
"1. The procedure of consideration of the regulatorylegal acts shall be established correspondingly by the Constitution of the Russian Federation, federal legislation of the Russian Federation, constitutions (charters) and laws of the constituent entities of the Russian Federation, charters of municipal units, along with the Rules and Regulations of the chambers of the Federal Assembly of the Russian Federation, legislative (representative) governmental agencies of the constituent entities of the Russian Federation, local legislative (representative) self-governing bodies.
2. Further to consideration of the draft regulatory legal act, the lawmaking agency shall resolve as follows:
to enact (issue) this regulatory legal act;
to complete follow-up revision of this regulatory legal act, indicating the procedure and time limits;
to reject this regulatory legal act;
to postpone the enactment (issuance) of this regulatory legal act for a specified period;
or to make other decisions in compliance with the laws of the Russian Federation.
3. The draft regulatory legal act can be withdrawn by the agency or person(s) having introduced it in accordance with the procedure established by the lawmaking agency".
The report on the matters related to the regulatory legal acts ceasing to be in effect was presented by V.A. Pashkov. Under the general law, the laws and other regulations shall have no retroactive effect. However, in practical terms, where a property dispute occurs or an offence is committed, the law enforcer shall apply the law being in effect as of the time of occurrence of the dispute or committal of the offence, though this law has been repealed or amended by the time being.
It is necessary to provide a clear demarcation between the concept of the regulatory legal act ceasing to be in effect and the replacement thereof with another regulatory legal act. The sub-clauses of section 49 should be supplemented with the provisions defining the procedure for the regulatory legal act ceasing to be in effect disjointed from the conditions for replacement of one regulatory legal act with another,
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otherwise the same idea is described in three various clauses using different wording.
Further to the Roundtable, the participants, speakers and attendees have agreed that in the modern context it is urgent to enact the law harmonizing the processes and procedures in the sphere of the regulatory legal acts, as the number of errors, corrections and inaccuracies that occur in the lawmaking process is increasing extensively. It can even pose the threat of disintegration for the entire legal system of the Russian Federation. It was concluded that such backbone law for the legal sphere calls for high-quality and thorough scientific research with profound analysis
and generalization of the recent experience.
***
Attendees and participants of the roundtable: master s degree students for the program on the Legal Support for State and Municipal Administration at the Russian Presidential Academy of National Economy and Public Administration.
Moderator: Head of the Chair of Political Science, Associate Professor of Law, Professor Svetlana Vladimirovna Boshno; Proponents:
Daria Demina, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, Moscow Administrative Road Inspectorate, chief specialist, e-mail: [email protected]
Anastasia Mikheyeva, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected]
Zukhra Tebuyeva, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected] Andrey Karmalita, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, Ministry of Natural Resources and Ecology of the Russian Federation, specialist, e-mail: [email protected]
Vadim Pashkov, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, Vozrozhdenie (non-commercial partnership, receivers and liquidators association, self-regulatory organization), analyst, e-mail: [email protected]
Konstantin Lebedenko, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, member of the Council of Deputies for the Solnechnogorskiy Municipal District of the Moscow Region, e-mail: [email protected]
Alexey Artyushin, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected]
Stanislav Chertoryzhskiy, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected]
Ulviye Zakirova, master's degree student at the Russian Presidential
Roundtable on the legal regulation of the system of regulatory legal acts and russian laws in the draft federal law "on regulatory legal acts in the Russian Federation"
Academy of National Economy and Public Administration, Ninth Arbitration Appeal Court, assistant judge, e-mail: [email protected]
Venera Bytdayeva, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, Ninth Arbitration Appeal Court, secretary of judicial session, e-mail: [email protected]
Oksana Podgrushnaya, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected]
Valentin Shirshikov, master's degree student at the Russian Presidential Academy of National Economy and Public Administration, Advisor at the Department of Financial Support of the Ministry of Defense of the Russian Federation, e-mail: [email protected]
References:
1. Draft Law "On regulatory legal acts in the Russian Federation". - http://regulation. gov.ru/project/21982.html
2. Decree of the State Duma dated 11 November 1996 No. 781-II GD "On applying to the Constitution Court of the Russian Federation".
3. Order of the Ministry of Justice of the Russian Federation dated 04.05.2007 No. 88 "Concerning the approval of the Explanations on applying the Rules of drafting the regulatory legal acts of the federal executive agencies and state registration thereof".
4. Boshno S.V. Regulatory legal act: development of features and attributes in the law enforcement practice // Arbitration and Civil Procedure. - 2009. - № 4, 5, 6;
5. Boshno S.V., Vasyuta G.G. The system of regulatory legal acts: current state and need for development (summarizing the results of sociological and legal research) // Modern Law. - 2009. - № 11. - Pp. 11-18;
6. Boshno S.V. Form of law: theoretical and legal research / Thesis for the degree of the Doctor at Law. - Moscow, 2005.
7. Lukianova E.A. Law on laws // Legislation. - 1999. - № 11.
8. Samigullin V.K. Systematization of the local rules of the Soviet law. Theoretical issues. - Moscow, Thesis for the degree of the Doctor at Law, 1976.
9. Karnaukhova E.V. Systematization of the local regulatory legal acts in the Russian Federation: general description and types: Synopsis of the thesis for the degree of the Candidate at Law. - Tyumen, 2011 etc.
10. Roundtable on The pressing issues of lawmaking and the bill "On regulatory legal acts in the Russian Federation". - Institute of Legislation and Comparative Law under the Government of the Russian Federation, 26 January 2015, at http://www.izak.ru/news.html?id=753
