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JURISPRUDENCE (12.00.00)
LEGISLATION
The law on normative legal acts: past, present and prospects
DOI: http://dx.doi.org/10.14420/en.2015.2.1
Svetlana Boshno, Doctor of Legal Sciences, Professor, Head of Political Science and Law Department of the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected].
The draft law on normative legal acts is a subject of discussion of the scientific community, policy makers and other interested parties. The article analyzes the main provisions of the draft law "On normative legal acts in the Russian Federation" for stipulating in it summaries of judicial practice and enforcement, scientific research and the needs of the law-making activities. Quantitative and qualitative methods, as well as historical and specialized legal research methods were used in preparing the article. Development of the draft law by the Ministry of Justice of Russia, allows hope to enact a law that will help to stabilize the legal system, legislation and lawmaking. It is necessary a qualitative improvement of the draft at the stage of its discussion before the official introduction to the legislative body: clarification of the definition of the normative legal act, document types, the subjects of lawmaking, systematization, responsibilities of lawmaking bodies. normative acts, local acts, acts of corporations, hierarchy of normative acts, the dissolution of the legislative body, systematization, incorporation, statues, consolidation, code, delegated lawmaking.
The draft law on normative legal acts is one of the most anticipated. More than 20 years there is ongoing work on a draft law in the different scientific communities (Institute of Legislation and Comparative Law under the Government of the Russian Federation), public authorities (the Commission on the implementation of the constitutional powers of the Federation Council), there are individual initiatives. On December 26, 2014 the Ministry of Justice announced its own draft that attracted attention and became a new reason for discussion not only directly on the draft, but also in general about the concept and purpose of the theory of a normative legal act in lawmaking, law enforcement, legal system.
Abstract.
Keywords:
In 1996, the first draft law on normative legal acts of the Russian Federation was adopted in the first reading by the State Duma. In 2004, the former version of the draft law was withdrawn from consideration for outdated content, which was predetermined by the eight-year break between the first and second readings.
The end of the twentieth century was marked by a large number of initiatives in the thematic plane of lawmaking. Thus, Russian President introduced a draft law "On the procedure for adoption of federal constitutional laws and federal laws", Rules of legislative technique, the law "On the Systematization and Codification of Normative Legal Acts", the law "On the Language of Laws" (or "On the Legal Terms") and others. This overview of the initiatives was prepared by Professor E.A.Lukyanova in 19991, for the past time, none of the mentioned projects has not become a law. Yet drawing somewhere optimism^ we again are entering into a discussion on the new draft, after 18 years, and we look forward to seeing the maximum novelty and even groundwork for the future. Relevance of the draft is predetermined by the increasing number of laws% in 2014 year was adopted an absolute majority of the laws for the period of a new Russian statehood-558.
Proposed at the end of 2014 by the Ministry of Justice2 the project for discussion can hardly be called a synthetic, having absorbed the results of all previous developments, but to name it author's is difficult, as according to Antiplagiat system, its novelty makes 20 %. What is important is the fact of existence of the will of the authorities towards the adoption of the "law on laws" as figuratively the law on normative legal acts is called. However, the draft is not a complex solution of urgent problems and a number of pressing issues that nurtured for decades, it did not answer.
Diverse subject matter of legal regulation of the draft law. Draft 2014 has kept the main drawback of the first draft adopted by the State Duma in 1996, it is too voluminous and diverse subject of legal regulation. For consideration by the State Duma at the same time there were two drafts - "On Normative Legal Acts in the Russian Federation" and "On the Procedure for Adoption of Federal Constitutional and Federal Laws." Their subjects overlapped, as the draft on normative acts interfered with the scope of the procedural sphere - law-making technology. The new draft law regulates not only normative legal acts, but law-making, legislative process, planning, overcoming collisions, implementation, monitoring, i.e. again a draft tries to cover too wide range of issues. It is not recommended by rules of legal technique to adopt laws with diverse subject of legal regulation, combining norms of substantive and procedural law. This greatly complicates the branch identification of the normative act, the formation of a single legal regime.
It is not possible to consider all aspects of the draft, let us consider the conceptual issues of contest and the legal technique for its implementation. The author's work on the theory of forms of law, in particular the normative legal acts
Lukyanova E.A. Law on laws//Legislation. - 1999. - № 11. http://regulation.gov.ru/project/21982.html
constitute the methodological foundation of this article1.
The law on normative legal acts is designed to address a number of known issues: features of normative legal act, types, hierarchy, systematization. We are waiting for certainty, unambiguity from the law. However, it is the certainty of the draft law that is not clear.
The concept of normative legal act. Definition of normative legal act is central to the law. This is what is expected from it in the first place. Since the legislator has not formulated any definition, there is a competition of definitions of different origin. State Duma in bylaw -Ordinance of Chamber-in 1996 year formulated the following definition: "normative legal act is a written official document adopted (issued) in a certain form by a law making body within its competence, and submitted to establish, amend or repeal legal provisions. In turn, under the legal norm it is understood obligatory state injunction of permanent or temporary nature, designed for repeated use"2. Due to the fact, that the definition is given in the Ordinance of the Federal Assembly3, it could not become the undisputed source of law. However, it is used actively to resolve important issues of lawmaking and law enforcement in the system of the state authorities.
Thus, the Russian Justice Ministry officially points out that during preparation of normative legal acts it is recommended to use the given Ordinance of the State Duma.
Supreme Court of the Russian Federation identified the following essential features of a normative legal act: 1) published in the prescribed manner by an authorized body of the government, local authority or official; 2) contains legal provisions (rules of conduct); 3) is required for an indefinite number of persons; 4) is designed for repeated use; 5) aims at regulating social relations or a change or termination of existing relationships4. Thus, this approach is crucial for the system of courts of general jurisdiction.
The most actively a concept of normative legal act is studied in the theory of law. However, the doctrine as a form of law is not recognized by domestic legal system in general, and is underestimated by judicial practice. The provisions set forth in the scientific works even in very reputable researchers, are not binding for the court. If they are used, then they are used as an illustration, the proof of the correctness of the conclusions of the courts, and not as the basis for these findings.
1 Boshno S.V. Codification//Law and modern states. 2014. № 2. P. 44-51; Boshno S.V. Interpretation of the rule law// Law and modern states. 2013.No 4. P. 18-26; Boshno S.V. Normative legal act: development of indicators in law enforcement practice//Arbitration and civil litigation. 2009. №. 4.5, 6; Boshno S.V., Vasyuta G.G.System of normative legal acts: current state and development needs (according to the results of the socio-legal study)//Modern law. 2009. № 11. P. 11-18; Boshno S.V. Form of law: theoretical-legal research/Thesis for the degree of doctor of legal sciences. -M., 2005, etc.
2 Resolution of the State Duma on November 11, 1996 № 781-II SD "'On Appeal to the Constitutional Court of the Russian Federation".
3 P. 2 the order of the Ministry of Justice of the Russian Federation from 05.45.2007 № 88 "On approval of the Clarification on the application of the rules of preparation of normative legal acts of the executive authorities and their state registration".
4 P. 9 Resolution of the Plenum of the Supreme Court of 11.29.2007 № 48"'On the practice of court cases challenging the normative legal acts in whole or in part".
Some scientific definitions are passed to judges. For example, the dissenting opinion of the G.A.Gadzhiev, judge of the Constitutional Court, formulated on the basis of determining the application of the law, is formulated in the textbook of S.S. Alexeyev "General Theory of Law" (V. 1. - M., 1981)1. But there is an opposite opinion about the book of the same author. So, canceling the decision of the lower court, the Supreme Court of the Russian Federation stated that a reference of the Court in the decision on the textbook "On the theory of state and law", edited by S.S. Alexeyev, Doctor of Legal Sciences, is wrongful, because textbooks are not sources of law and by virtue of Art. 10 of CPC RSFSR cannot be applied directly by the court as justification for a judicial decision. Thus, the status of the doctrine as a form of Russian law did not work out. But the Roman-Germanic legal system also does not refer jurisprudence to a form of law. However, at the beginning of 2015 more than 400 judicial acts were rendered on the basis of Resolution of the Plenum of the Supreme Court of 2007 № 482.
Elaborated by the executive and judicial branches of the government definitions are applied for a long time, respectively, they have been tested. However, the draft law proposes very truncated definition, shortness of which hurts its entirety. We believe that a comprehensive definition of the normative legal act on the basis of the mentioned pre-sources may be the following:
A normative legal act is an official written document, adopted (issued) in a certain form by a body of state powers, local government or their official within its competence, and aimed at establishing, changing, enacting, terminating or suspending mandatory regulations that apply to an indefinite number of persons, designed for repeated use, and aimed at resolving social relations, modification or termination of existing legal relations.
Approaches to systematization and style of presentation. Articles of the draft law on systematization partially are borrowed from the draft law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, published in 20 1 33. However, norms about the code of laws were not included in the draft law of Ministry of Justice from antecedent (Art.105 draft law of ILCL).
Definitions are academic, but not functional. For example, on the text of draft law the incorporation is the systematization of acts in a certain order. However, such an established order does not exist. There are known chronological, thematic
1 Definition of the Constitutional Court of the Russian Federation of 12.10.2002 № 284-D "On request of the Government of the Russian Federation on the constitutionality of the Resolution of the Government of the Russian Federation "On Approving the Procedure for determining fees and size limits for environmental pollution, waste disposal and other harmful effects"' and Article 7 of the Federal Law "'On introduction of the first part of the Tax Code of the Russian Federation".
2 For example, the Appeal of the Supreme Court of the Russian Federation of 02.03.2015 № APL14-696 "On upholding decisions of the Supreme Court of 11.07.2014 N AKPI14-1049, which dismissed an application for invalidation of the Resolution of the Russian Federation from Gosgortechnadzor of the RF of 06.06.2003№ 73 "On approval of the "Guidelines for the production of surveying works" and the Order of the GosGorTechNadzor of the RF of 06. 27.2003 № 145 "On introduction of the normative legal acts in the field of mineral resources.
3 http://www.izak.ru/system/files/zakonoproekt_o_normativnyh_pravovyh_aktah_0.pdf#1
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incorporations, there is possible selection of documents and on other grounds. Definition stated in the draft law does not bring us closer to its practical application.
We believe that the draft law should answer the fundamental question of whether the incorporation and consolidation have an official character. Indeed, incorporation is a collection of documents. However, for the collection of normative acts completion is very important. We believe that such a collection of documents as "The Legislation of the Russian Federation" on the official portal of legal information www.pravo.gov.ru has a special mission, as it is intended to be complete. There is the problem of the full incorporation under the name of code of laws.
In the theory of law and law-making practice, it has been accumulated a lot of questions to the consolidation. Connection of acts adopted at different times in the form of amendments to the original text, is informal in nature. The problem raises the number of amendments introduced in normative legal acts. It is noteworthy that originally reference legal bases in the beginning of the text of the current edition gave a list of acts that introduced amendments. Lists of two or three documents on the line turned into multipage texts. And now in the databases it is given a button, when clicked, opens a list. Button is turned into an external expression of the crisis of law making. In reference to the consolidated document in the database of ConsultantPlus it is stipulated that, the law has not been published in this edition. Accordingly, the connection of acts is carried out unofficially. The problem can be solved in two ways: by giving an official status to the consolidated text on the website www.pravo.gov.ru or legitimization of the "new edition" as a recognized form of lawmaking. However, none of the expected options is not reflected in the draft law.
Of particular relevance is the issue of the preparation and enactment of code of laws, which in the new Russian history dates back to 19951, but has not yet been solved. In the USSR and RSFSR until 1995-1996, codes of laws were monitored. The loss of the official collection of the legislation in force creates inconvenience in allocating the necessary legal documents.
Classification of normative legal acts. The draft law establishes a classification of legal acts, denying individual documents in the status of a normative. Discussion of the relationship between local and normative acts, as well as the possibility of local acts to be normative has lasted for decades2. The draft law specifies that the local legal act may include the rule of law, but it is not a normative legal act. Moreover, it is assumed that the local act may be normative, but not for the purposes of the given law. Establishment of a term applied to only one law, and having a different meaning for other legal acts, has long been justifiably criticized in the literature on the judicial technique.
1 Decree of the President of 02.06.1995 № 94 "On the preparation for the publication of the Code of Laws of the Russian Federation".
2 See. Samigullin KK.Systematization of local norms of Soviet law. Questions of the theory. - M., Dis. Cand. jurid. Science, 1976; E.V.Karnaukhova Systematization of local normative legal acts of the Russian Federation: general characteristics and types: thesis abstract on competition of a scientific degree of candidate of legal sciences. - Tyumen, 2011, and others.
The draft law can stipulate the division of acts generated by science into normative and individual by the number of persons to whom it applies. Useful and necessary idea on a special status of acts of organizations and their differentiation from normative acts may be implemented by introducing in the draft law intra-organizational and normative ones, depending on what array it applies. If the act applies to members of the organization (e.g., employees of the organization) it is intra-organizational. If it applies to entities outside the organization or as specified in Art. 14 of the Constitution of the Russian Federation, it regulates the rights and freedoms of a person then it is normative. The Act that goes beyond the organization, affects the rights and freedoms of an indefinite number of persons, which makes it normative.
Securing results of monitoring of law enforcement and judicial practice in the draft law. The draft law made practically no steps towards legislative legitimization of legal provisions, set forth in the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2007 № 48 "On the practice of court cases challenging the normative legal acts in whole or in part." At the same time, the said Resolution formed practice-oriented approaches to the normative legal act, summarized defects of law-making practices and suggested ways to overcome them in the course of litigation. However, judicial practice is not a form of the Russian law. Accordingly, even objectively useful, but innovative in relation to the legislation, provisions of the Resolution of the Plenum of the Supreme Court, are not legitimate. The legislator should not invent new rules, he has to take ready-made solutions that have already been applied in practice.
Technical and legal defects. The draft law, which establishes the requirements for other normative legal acts, must be a model of legal technique. It has no right to have defects. However, the draft law of the Ministry of Justice of the Russian Federation is not free of technical and editorial shortcomings, including corruptogenic factors. Among such violations are the following: uncertainty; going beyond the jurisdiction; definition of powers of public authority by the formula "has the right", etc. For example, paragraph of the article 10 of the draft law stipulates that the President of the Russian Federation has the right to suspend the act of the highest official of the subject of the Russian Federation (head of the supreme executive body of state authority of the subject of the Russian Federation) as well as the effect of an act of the executive authorities of the subject of the Russian Federation in case of conflict of this act with the Constitution of the Russian Federation, federal laws, international obligations of the Russian Federation or the violations of the rights and freedoms of man and citizen until the decision of the appropriate court. Such permissions, in law enforcement relations in the draft law are many. However, certainty requires that the head of state acts imperative, not optional. The phrase "suspend" instead of "may suspend" makes the behavior of public authority axiomatic, predictable and certain. There are stylistic defects. A number of articles of the draft law are written in the style of a textbook on the theory of law. Articles of the law on systematization are bookish: consolidation, incorporation, codification. This is a story about the concept, and not its normative
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wording.
Legalization of delegated lawmaking. The draft law in article 10 allows the President of the Russian Federation "to issue decrees filling the gaps in the regulation by federal laws. These decrees do not have the legal force of the federal law and remain in force until the adoption of the relevant federal laws. In the case of publication by the President of the Russian Federation of decrees filling the gaps in the regulation by federal laws, the President of the Russian Federation within one month submits to the State Duma of the Federal Assembly of the Russian Federation in the order of a legislative initiative relevant draft federal laws. The State Duma of the Federal Assembly of the Russian Federation is considering such drafts law as a priority".
This highly ornate wording actually introduces into the Russian legislation the institution of delegated lawmaking known to world practice. The Supreme Council of the USSR had a similar practice. Presidium of the Supreme Council of the USSR in the period between sessions of the Supreme Council had the right to make, if necessary, changes in existing legislation of the USSR and then submitted for approval at the next session of the representative body1.
The practice of the First President of the Russian Federation to issue decrees on the subject of legal regulation of the law has been evaluated by the Constitutional Court of the Russian Federation2 and analyzed in V.O.Luchin's book "Ukaznoe pravo v Rossii3" (Decree Law in Russia).
The publication of the decree on the subject of the law does not correspond to the idea of the rule of law, the principle of separation of powers, which is aggravated by the lack of a clear time period for which the decree will replace the law. The high sense of duty of the modern Russian parliament, the refusal from a second reading allow to adopt laws actually in a few days. The right of the head of the state to make any draft law as a priority, in fact, is a special right of the President to participate in the legislative process. In such a situation, there are no grounds for adopting the temporary presidential act in order to speed up the lawmaking decision. However, if it is important in law -making to consider the criterion of efficiency, then the proposed solution is necessary.
Saving disadvantages of the previous legal regulation. The draft law has affirmed the unsuccessful wording of the current legislation, scientifically substantiated complaints to which have accumulated for many years. Thus, since 1994 in the Federal Law of June 14,1994 № 5-FL "On the order of publication and coming into force federal constitutional laws, federal laws, acts of Chambers of the Federal Assembly", it is stipulated that the date of adoption of the law is the date of its adoption by the State Duma in the final edition. Accumulated compelling scientific arguments and the results of the judicial practice clearly indicate failure
1 Article 122 of the Constitution of the USSR, 1977.
2 Decision of the Constitutional Court of the Russian Federation of 01.14.1992 № 1-P-U "On the case of constitutionality of the Decree of the President of the Russian Federation dated December 19, 1991 № 289 "On Education of the Ministry of Security and Internal Affairs of the Russian Federation".
3 See. Luchin V.O. Decree law of Russia. - M., 1996.
of the given wording. The most obvious arguments "against" consist in the fact that after the State Duma a draft law goes to the Federation Council, then - to the President of the Russian Federation for signing. A law can come into force in general only after its official publication. These conditions are exacerbated by the fact that in the Constitution of the Russian Federation (Part 3 Art. 105) in relation to the text, issued by the State Duma, it is used the expression "the law adopted by State Duma"1. These rules together unreasonably absolutize the role of the State Duma and diminish the value of other participants of the legislative process. And this unreasonable model is lobbied in the new draft law. The arguments talked about for 20 years have not been heard, and the new draft law introduces a more complex formulation: "The date of adoption (publication) of the normative legal act by a collegial body is considered to be the date of its adoption (publication) in final edition, which is evidenced by a copy of the act with signatures of the officials of the relevant lawmaking body, and the minutes of its meetings" (article 37 of the Draft). With regard to the federal legislative process, the date of adoption of the law is still the date of its adoption in the final version by the State Duma (as the Council of the Federation cannot make changes to the version during the approval process). But, it is not clear when the document should be signed by officials, i.e. by chairmen of the chambers of the Federal Assembly, and why the protocol is used in a single copy, but there are two chambers.
Acts of other organizations. The draft categorizes acts of government agencies and public corporations to normative, what does not correspond to the concept of lawmaking as activities of state authorities, local self-government and their officials. Acts of organizations that are not organs of power cannot be regarded as normative.
Legislative drafting and interpretation. Article 58 of the Draft law establishes legally binding official interpretation (explanation) of normative legal acts. According to the developers, "the result of an official interpretation (explanation) of the normative legal act is obligatory and its legal validity corresponds to the act under interpretation. The official interpretation (explanation) of the rule of law is executed by a normative legal act of the body that adopted (issued) a normative act containing a norm under interpretation." Moreover, "explanatory acts are retroactive and valid from the date of entry into force of the act under interpretation"'. A draft called "author's" interpretation (Art. 57 of the Draft) understands the official interpretation (explanation) is executed by the bodies that have adopted (issued) the normative legal act. In theory of law, such an explanation is called authentic, which is a rarity because of the technical complexity of formula two in one: lawmaking-interpretation. The process of publishing an authentic act of interpretation shall be
1 On April 7, 2014, Federation Council Committee on Rules and the Organization of parliamentary activities held a round table on the theme: "The role of "upper" Chambers of parliaments in the system of bodies of state authority: domestic and foreign experience", where the position on this issue was expressed by Prof. V.E. Chirkin-see: M.A.Suvorov, S.V. Boshno Role of "upper" Chambers of parliaments in the system of bodies of state authority: domestic and foreign experience"//The law and modern states. 2014. № 2. - http://bar-association.ru/?p=521
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in the same order as the provision under interpretation. In fact, this is the adoption of a new law, and not the interpretation of existing one, which is difficult for the acts adopted by the collegial bodies. The term "author's interpretation" is not practical and applicable in jurisprudence. Unjustified establishment of new definitions in the legislation when there are prevailing ones, is a violation of rules of legal technique.
Giving retroactive force to interpretation may significantly affect the impact of relations that occurred prior to the enactment of the law, and will have a value of newly discovered circumstances. Giving retroactive force to jurisprudence is established by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2011 № 52 "On the application of the provisions of the Arbitration Procedure Code of the Russian Federation to the revision of the judicial acts on a new or newly discovered circumstances". According to paragraph 5 of part 3 of Article 311 of the APC of the RF, definition or change by the Supreme Arbitration Court of the Russian Federation of the practice of rule of law can serve as a basis for the revision of an enforceable judicial act according to the rules of Chapter 37 of the APC of the RF only if, the relevant act of the Supreme Arbitration Court of the Russian Federation provides an indication of the possibility of revision of acts entered into force court by virtue of the circumstances.
The regulatory role of the judicial practice in conjunction with retroactive force gives it greater regulatory capacity in comparison with normative legal acts. The priority of the judicial practice over normative acts in the Roman-Germanic legal system is unacceptable and may lead to a distortion of the grounds and the essence of this type of legal system.
Priority of some laws over others. The law contains a provision on the code, which prohibits the establishment of priorities of rules of one act over another. Paragraph 18 of Article 10 of the Draft law establishes: "It is prohibited to stipulate in the normative legal act the provisions on supremacy in relation to other normative legal acts which have been adopted (published) by the same lawmaking body in the same form. Such legal norms shall have no legal force". This rule is being proposed in response to the self-proclamation by codes of their supremacy in the sphere of legal regulation. In general, a negative evaluation of illegitimate ratio of codes with other acts or with themselves believes that manifestation of supremacy of codes in the law would ensure uniformity of approaches within a single branch of the legal regime.
The Constitutional Court has repeatedly spoken about the problem of the relation of laws and codes. The judicial authorities have not supported the idea of the unconditional supremacy of the Civil Code of the Russian Federation in the system of federal laws in terms of the constitutional text. In 2000 the Constitutional Court of the Russian Federation has established the following: "The contradiction between the Civil Code of the Russian Federation and other federal laws regulating these relations must be eliminated in the process of enforcement, because the Constitution of the Russian Federation does not define and cannot define a hierarchy of acts within one of their type, in this case - federal laws. No federal law, by virtue of Article 76 of the Constitution of the Russian Federation, does
not possess in relation to another federal law more legal force1. Despite a lot of work on the interpretation of issues of the hierarchy of laws, carried out by the Constitutional Court, the legislator continues to adopt acts with the self-proclaimed supremacy of one law over another. Thus, the Federal Law "'On Industrial Policy of the Russian Federation" dated December 31,2014 No 488-FL in the article 3, goes the same way: in article 2 it is established, that the legal regulation in the sphere of industrial policy is based on the Constitution of the Russian Federation, federal constitutional laws, and carried out in accordance with the present Federal Law, other federal laws adopted in accordance with it". This wording has been taken from the codes and is widely used in the legislation. There may be variations of the same theme of self-declaration, for example, the regulation is carried out in accordance with the federal law on energy saving and energy efficiency, and other federal laws adopted in accordance with them of other normative legal acts of the Russian Federation in the field of energy conservation and energy efficiency2.
Assessing this law-making practice, we believe it is necessary to approve the supremacy of the code in the relevant the subject of legal regulation and to ban self-proclamation of its supremacy to other laws. Code will not be able to perform the role of a backbone document of the branch of law, subject to its equality to other laws. This will result, according to the chronological rule for equal documents the current law may replace a code if it contains other provisions and adopted later.
Here is a historical example of a model of a backbone approach to the hierarchy of normative legal acts. Article 73 of the Constitution of the USSR of 1977 referred to the jurisdiction of the Union of Soviet Socialist Republics, represented by its higher organs of state power and administration, provision of the unity of the legislative regulation on the entire territory of the USSR, the establishment of a legal framework of the USSR and the Union Republics. In connection with the refusal from a legal framework in the Russian legislative system, it is the codes that should ensure unity of approaches taking into account the modern statehood. This is possible due to legitimization of their superiority (greater legal force) over other laws in their field of law, regardless of their date of entry into force.
Ratio of laws and bylaws. For decades, the problems accumulated in the system: law - bylaw. The prolonged absence of the necessary bylaw creates preconditions for corruption because of the existence of the gap3. Bylaw should be issued on the basis of, pursuant to or in accordance with the law that should be
1 The Decision of the Constitutional Court of the Russian Federation from June 16, 1998 on the case about interpretation of separate regulations of articles 125, 126 and 127 of the Constitution of the Russian Federation, and repeatedly confirmed by the Constitutional Court of the RF in a number of decisions, including in the definitions from April 9, 1998, No. 48, dated March 12, 1998, No. 51, dated May 19, 1998, No. 62-O from October 8, 1998, No. 195-O; The Decision of the Constitutional Court of the Russian Federation from February 3, 2000 No. 22- O "On request of Pitkyarantsk City Court of the Republic of Karelia on the verification of constitutionality of article 26 of the Federal law "On Insolvency (bankruptcy) of credit institutions".
2 P. 6.1. Art. 46 of the Federal Law of 12.27.2002 № 184-FL "'On technical regulation".
3 The Methodology of the anticorruption expertise of normative legal acts and drafts normative legal acts, approved by Rf Government Decree of 02.26.2010 № 96 "On the anticorruption expertise of normative legal acts and drafts normative legal acts".
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stipulated directly in the text of the bylaw. This requirement was not included in the draft law, and there is no reason to hope for its voluntary execution. The draft law with regard to different levels of the hierarchy of normative legal acts indicates that the subordinate legal acts cannot contradict the law. This formulation outlines only one format of comparison of laws and bylaws: when both of them are available and we compare their content. However, if there is no law, and by-law in this area is issued, then it cannot contradict anything, because there is nothing. However, the essence of the wording of meaningful ratio of laws and bylaws is that bylaws could not be issued before law, could not replace them, were published in a timely manner and on the basis of indications in the law. These faces are not covered by the formula "bylaws cannot contradict the law." To prevent corruption in this area it is desirable to specify a deadline for the adoption of a bylaw specified or provided by law - no more than three months.
Penalties for violation of the rules of lawmaking. The question of penalties for violation of any law is extremely important. The draft law on normative legal acts does not contain any penalties for any material or procedural defects. Judicial practice on contesting normative legal acts is extensive and diverse. According to G.A. Petrova, the Deputy Chairman of the Supreme Court of the Russian Federation, in 2014 the Supreme Court considered 227 cases on contesting the normative legal acts. It includes 130 acts of the bodies of executive power that have been contested. In 22 cases, which make 17%, claims of applicants were satisfied1. This indicates about illegal lawmaking, substandard work of agencies and officials. Defective lawmaking is an offense, and, accordingly, it should give rise to legal liability. Court in relation to the normative legal act according to the results of consideration of the case on its appeal may decide to recognize it invalid.
Accordingly, in order to stabilize the ratio of legislative regulation and judicial practice it is expedient to manifest in the law that a breach of the requirements of this law entails the recognition of a normative legal act invalid.
The question on responsibility of lawmaking body for results of its performance remains under discussion. The presumption of the constitutionality of the normative legal act as principle is approved by the Constitutional Court of the Russian Federation2. In accordance with this principle, the law is presumed constitutional until proven otherwise. The essence of this principle is that it is unacceptable to consider the question on illegal action of lawmaking and representative bodies on the adoption of the federal law until the Constitutional Court of the Russian
1 Round table "Actual problems of law-making and the draft federal law "On normative legal acts of the Russian Federation". - Institute of Legislation and Comparative Law under the Government of the Russian Federation, January 26, 2015- http://www.izak.ru/news.html?id=753
2 Definition of the Constitutional Court of the Russian Federation from 02.05.2004 № 134-O "On the refusal in admission for consideration of the request of the Central District Court of the city of Chelyabinsk on the verification of constitutionality of part two article 238 of the Code of criminal procedure of the Russian Federation"; The decision of the Constitutional Court of the Russian Federation dated 03.17..2010 № 6-P "On the case about the verification of constitutionality of the provisions of article 117, part 4 of article 292, 295, 296, 299 and part 2 of article 310 of the Arbitration procedural code of the Russian Federation in connection with the complaint of the closed joint-stock company "Argument"
Federation has established illegality (constitutionality) of this law itself. However, in recognition of the act unconstitutional or invalid, the presumption is not confirmed. The person who signed the document, is absolutely personified, collective body that adopted the act is known, the available (or absent) facts of veto and disputes between participants of lawmaking procedures are recorded, respectively it is know who committed an offense against law. It is even easier to establish a responsible person in the individual lawmaking. For example, a body of the executive power shall issue a normative act in the form of a letter, it does not pass it for registration and does not publish it. According to the results of the trial, it is established illegality of publication of this document, and the violation of procedures. But there is a signature of a particular official, and it may well be responsible for accepting the official decision.
One could go the traditional route of establishing blanket norm of law that the responsibility for violation of this law is established by the current legislation. However, the establishment of forms of responsibility in this law at least in the form of a list of penalties for violation of requirements for the lawmaking technique would significantly improve the culture of lawmaking and the quality of performance of public functions by participants of the lawmaking process. Already established by the current legislation types of legal liability for lawmaking actions can serve as a reference point. So, the highest official of the subject of the Russian Federation (head of the supreme executive body of state authority of the subject of the Russian Federation) has the right to make a decision on early termination of powers of the legislative (representative) body of state authority of the subject of the Russian Federation for the defects in the lawmaking on the grounds specified in the law1. And President of the Russian Federation could intervene in the process, who can issue a warning in the form of a decree, and then issue a decision on the dissolution of the legislative body of the subject of Federation2.
In this vector, it is possible to pass further, and the recognition by the court of the act invalid to dismiss a body that has issued such a document. And it is not a question on the intention to destabilize activity of the collective lawmaking bodies, but on their qualifications and performance of their duties, which should be used for making high quality and lawful normative legal acts. Not repressive, namely constructive idea lies in the thesis on the necessity of establishing accountability for law-creating solutions.
Legislation, at first glance, does not give the possibility of introducing thesis on lawmaking responsibility, for example, the President of the Russian Federation, the Government of the Russian Federation. This is due to the fact, that the status of these bodies is constitutional and to modify it by ordinary federal law is not possible. However, not only legal solution is possible, but also political one and even the customary-lawful. So, it is known to the world experience that authorities
1 P. 2.1. Art. 9 of the Federal Law of 10.06.1999 № 184-FL "On general principles of organization of legislative (representative) and executive bodies of subjects of the Russian Federation."
2 p. 4 Art. 9 of the same law.
LAW AND MODERN STATES
and officials due to tradition, the custom are binding responsibility on their own, rather than due to the force of law there is an example of such a decision. The Constitutional Court stated that the unresolved question in the Constitution of the Russian Federation on whether one or more candidates for Prime Minister of the Russian Federation the President shall make at the refusal of the State Duma with the proposed candidate, he pointed out that this does not prevent the formation in the future of corresponding constitutional custom1. Following this positive example, we can expect that any organ or official, recognizing its lawmaking error or agreeing with the conclusions of the court, assign on itself responsibility, including termination (dismissal). Moreover, in recent years, work on improvement of the constitutional text has been intensified, what can be exercised and in relation to legitimization of the idea on responsibility for lawmaking errors. Unlawfulness of an adoption of the act established by the court can be defined as the failure to perform official duties. Without offering specific solutions, it is suggested to elaborate on this question and find an appropriate solution to it in the draft law.
The mere fact of the preparation of the draft law is undoubtedly a step forward and its adoption will have a positive impact on the legal system and legislative system. However, it is not necessary to follow the path of the adoption of any law for the purpose of its further improvement. It is necessary to work productively on the draft in order to consolidate in it a doctrine, practice. It should become a model for generation of lawmaking solution: all accumulated, detected in the monitoring and generalized by doctrine becomes the text of the law.
The focus of work: 1) clarify the definition of a normative legal act; 2) develop a classification; 3) add the types of systematization with the code of laws; 4) establish responsibility for the lawmaking errors; 5) eliminate corruptogenic factors; 6) study the need for delegated lawmaking.
References:
1. Lukyanova E.A. Law on laws // Legislation. - 1999. - № 11.
2. http://regulation.gov.ru/project/21982.html.
3. Boshno S. V. Codification // Law and modern states - 2014. - № 2. - P. 44-51.
4. Boshno S.V. Interpretation of the rule law // Law and modern states. -2013. - № 4. - P. 18-26.
5. Boshno S.V. Normative legal act: development of indicators in law enforcement practice // Arbitration and civil litigation. - 2009. - № 4, 5, 6.
6. Boshno S.V., Vasyuta G.G. System of normative legal acts: current state and development needs (according to the results of the socio-legal study) // Modern law. - 2009. - № 11. - P. 11-18.
7. Boshno S.V. Form of law: theoretical-legal research / Thesis for the degree of doctor of legal sciences. - M., 2005, etc.
1 Decision of the Constitutional Court of the Russian Federation of 12.11.1998 № 28-P "On the case of the interpretation of the provisions of Part 4 of Article 111 of the Constitution of the Russian Federation".
8. Resolution of the State Duma on November 11, 1996 № 781-II SD "'On Appeal to the Constitutional Court of the Russian Federation".
9. The order of the Ministry of Justice of the Russian Federation from 05.45.2007 № 88 "On approval of the Clarification on the application of the rules of preparation of normative legal acts of the executive authorities and their state registration".
10. Resolution of the Plenum of the Supreme Court of 11.29.2007 № 48"'On the practice of court cases challenging the normative legal acts in whole or in part".
11. Definition of the Constitutional Court of the Russian Federation of 12.10.2002 № 284-D "On request of the Government of the Russian Federation on the constitutionality of the Resolution of the Government of the Russian Federation "On Approving the Procedure for determining fees and size limits for environmental pollution, waste disposal and other harmful effects"' and Article 7 of the Federal Law "'On introduction of the first part of the Tax Code of the Russian Federation".
12. http://www.izak.ru/system/files/zakonoproekt_o_normativnyh_pravovyh_ aktah_0.pdf#1
13. Decree of the President of 02.06.1995 № 94 "On the preparation for the publication of the Code of Laws of the Russian Federation".
14. Samigullin V.K. Systematization of local norms of Soviet law. Questions of the theory. - M., Dis. Cand. jurid. Science, 1976.
15. Karnaukhova E. V. Systematization of local normative legal acts of the Russian Federation: general characteristics and types: thesis abstract on competition of a scientific degree of candidate of legal sciences. - Tyumen, 2011, and others.
16. Constitution of the USSR, 1977.
17. Decision of the Constitutional Court of the Russian Federation of 01.14.1992 № 1-P-U "On the case of constitutionality of the Decree of the President of the Russian Federation dated December 19, 1991 № 289 "On Education of the Ministry of Security and Internal Affairs of the Russian Federation".
18. Luchin V.O. Decree law of Russia. - M., 1996.
19. Suvorov M.A., Boshno S.V. Role of "upper" Chambers of parliaments in the system of bodies of state authority: domestic and foreign experience" // The law and modern states. - 2014. - № 2. - http://bar-association.ru/?p=521
20. Federal Law of 12.27.2002 № 184-FL "'On technical regulation".
21. The Methodology of the anticorruption expertise of normative legal acts and drafts normative legal acts, approved by RF Government Decree of 02.26.2010 № 96 "On the anticorruption expertise of normative legal acts and drafts normative legal acts".
