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LAW-MAKING
Using juridical framework in lawmaking for social and technical spheres
DOI: http://dx.doi.org/10.14420/en.2015.2.5
Aleksandr Krasavin, Federal Autonomous Institution "General Directorate of State Expertise of the Russian Federation", Deputy Head of Department, Candidate of Technical Sciences, Master of Legal Science, e-mail: a-krasavin@mail.ru
Regulating technical processes by means of legal norms issued in the form of federal laws is a relatively new technique of rulemaking activity. The legal doctrine proceeded on the assumption that legislation regulates social relations, which accordingly excluded a possibility to establish technical regulations by federal laws. On the basis of the conducted research of methodological and methodical grounds of legal regulation the author justifies the possibility of social and technical legal regulation and examines its limits. The author arrives at conclusion that main contents of the technical reglament (the name accepted in the Russian legislation for the code of technical regulations codes) should consist of technical legal norms rather than purely technical requirements, and regulation of technical actions rather than determination of precise (or interval) parameters and features for each product unit. That is, the term "technical actions" is defined as purposeful activities of people (design engineers, manufacturers, government controllers, etc.), aimed to ensure compliance of technical regulation objects with established safety requirements. The subject-matter of the present work is adaptation of tools applied in juridical technique to issues of technical regulation.
technical reglament, legal regulation, social and technical regulation, legislative technique, lawmaking technique, methodology of social and technical regulation, technical law.
Lawmaking activity in the region of technical regulation is impossible without applying the whole body of principles and methods of research, development, scientific and practical work. Below there are listed main principles and methods that according to rules of legal science are to be necessarily applied in social and technical lawmaking:
1.General Scientific Methods, i.e. group of methods that are commonly applied in any science; this group conventionally includes the following methods:
Abstract:
Keywords:
a.Materialistic, which means that lawmaking activity is viewed as being interrelated and integrated with other social phenomena, human nature and living conditions of people;
b.Metaphysical, which means that social and technical lawmaking is viewed as an isolated object, out of its connection and interactions with other phenomena; applying this method allows to study the nature of lawmaking activity in the region of technical regulation in a more profound way;
c.System-structural, which means that for development of technical legal norms there are taken into account established classifications and distribution of norms over branches of law;
d.Comparative, which means there is drawn a comparison between national legislation and corresponding laws of other countries;
e.Sociological, which means that technical legal norms are developed on the basis of factual data, received by means of analysis of statistical data, observations, questionnaire surveys, public inquiries, polling, etc.
2.Logical Methods, including:
a.Analysis, which means that in the course of lawmaking the state legal phenomena subject to technical regulation are divided into components, so that it is possible to identify their principal or essential features;
b.Synthesis, which means components of state legal phenomena in the region of technical regulation are viewed as the whole;
c.Analogy, which means technical legal norms are developed with due account for experience of how systems of law function in other countries;
d.Induction (epagoge), which means ascending from particulars to general rules, commonly applied when framing laws;
e.Deduction (descent), which means descending from the general to particulars;
f.Method of notions formation and formulation of definitions, which means that definitions shall contain all essential features of general phenomena;
g.Method of using concepts in the same meaning, and other methods.
3. Linguistic Methods:
a.Correspondence of terms to the defined concepts, which means that it is not admissible to use in social and technical lawmaking such terms that are inherent to literary, business, colloquial discourse;
b.Compactness of technical reglaments and other regulatory legal acts that regulate social and technical relations, which means that in the course of lawmaking use of definitions, clarifications, additions, etc. should be minimised;
c.Higher information value of technical reglaments, which means the information component of legislation about technical regulation is increased by means of using in the text participial and gerundial constructions, homogeneous parts of the sentence, dependent clauses, etc.;
d.Providing for clarity and comprehensibility of regulatory legal acts that regulate relations in the technical branch (as of today the given method is totally neglected in social and technical lawmaking);
e.Using graphics means in the juridical text (headings, classified columns, spaces, punctuation marks, etc.).
4. Technical Methods:
a.Systematisation of legislation (obtaining, processing, storage and retrieval of legal information);
b.Increase in productivity of lawmaking work (drawing up standard documents, editing legal documents with the help of information technologies).
As we see, there exists a wide scope of tools by means of which lawyers (in cooperation with specialists in the region of technical regulation) should develop technical legal norms. The described set of instruments is supplemented by direct rules of performing juridical work in the course of social-technical lawmaking, which can be nominally divided into six interrelated groups according to the approach suggested by Yu.A. Tikhomirov1:
Comprehensibility Rules
This group includes rules that allow to relate lawmaking activity in the region of technical regulation to the real context, in which the lawyer is working. Alternately stated, any juridical activity must be socially adequate.
Logics Rules
Complexity of lawmaking activity makes it necessary to follow logical rules in order to achieve the objectives that lawmaking pursues.
Structure Rules
Lawmaking activity should be arranged in a certain manner. It is usually divided into parts, phases, stages, each of which is aimed at achieving certain targets. Achieving these targets contributes to ensuring integrity of work. Outwardly this manifests itself in structurisation of created regulatory legal acts.
Language Rules
The language that serves as an instrument for executing lawmaking work plays an extremely important role: juridical activity is conducted for the sake of people, so they should understand any juridical act. Accuracy, clarity, and comprehensibility are prerequisites of achieving effectiveness of social and technical lawmaking.
Formality (Requisites) Rules
In the course of practicing law in the region of technical regulation there are effected acts that give rise to legal consequences, and legal documents are drawn. It is an imperative to know who made the particular legal document validating a certain legal action. In case of detecting a legal error, it must be eliminated, and the person whose actions were qualified as unprofessional must be brought to legal responsibility.
Procedure Rules
To prepare and adopt legal documents one must follow a certain procedure.
1Tikhomirov Yu. A. Zakonodatel'naya tekhnika: ponyatie i elementy / In the book: Zakonodatel'naya tekhnika / under the editorship of Yu. A. Tikhomirov. - Moscow, 2000. - P. 9. [Legislative Technique: Concepts and Elements / In the book: Legislative Technique]
Consequences of adopting juridical acts can vary considerably, including those that have a negative effect on the subject of law. Following certain rules of juridical technique that concern the course of law contributes to inhibit abusive practices when legally significant actions are performed, especially those on the part of state agencies and civil servants.
Bearing in mind the importance of above listed rules of juridical technique for creating fair and effective laws, it is worth while to examine them in more detail. For example, comprehensibility rules in legal literature are associated with homogeneity and fullness of legal regulation, an adequate choice of the branch and form of law, ensuring compliance of the legal document with principles and standards of international law.
It means that a legal document should have metes and bounds, it cannot have an unlimited size, otherwise its effectiveness will decrease. A regulatory legal act must be designed for regulating homogeneous social relations. Mixture of norms from different branches in one regulatory legal act is reputed as the height of non-professionalism.
Completeness of legal regulation is a general rule of juridic technique, it concerns not only lawmaking, but also realisation of legal norms and enforcement of law. In the domain of lawmaking, when it is detected that any public relations, including social and technical relations, have remained unregulated, though they can be and must be regulated, it is customary to view it as a case of deficiency of law.
V.V. Lazarev1 pursued a profound and detailed research on deficiencies of law. According to V.V. Lazarev, "the deficiency in the civil law is absolute or partial absence of legal settlements (norms), necessity of which is determined by evolution of social life...». However, today, in the context of cardinal changes in the social setting, we are to take slightly different approaches to interpret deficiencies of law.
T. V. Kashanina2 conclusively replied to the question why there does not exist the problem of deficiencies of law in European law. T.V. Kashanina points out that, firstly, state legal (public) regulation in the USA and Western Europe concerns only such questions that affect interests of the state, society in whole, and the person set. Private interests are represented by private law norms, which are created by subjects of law themselves, and the state only protects them.
Secondly, if there appears an unregulated situation related to the sphere of public law, such situation is settled by courts, thus generating the test case (corresponding precedent). If we apply this provision to Russian conditions, it will turn out that not any absence of legal establishments (norms), necessity of which is determined by evolution of social life, is actually a deficiency of law.
1 Lazarev V.V. Probely pozitivnogo prava: ponyatie, ustanovlenie i ustranenie / In the book: Obschaya teoriya prava i gosudarstva: Uchebnik (Chapter 20) / Under the editorship of V. V. Lazarev. - Moscow, 1999. - P. 300-309 [Gaps Of Positive Law: Concept, Settlement And Elimination / In the book: General Theory of Law and State: Course Manual].
2Kashanina T.V. Yuridicheskaya tekhnika. - Moscow, 2007. - P. 107-110 [Juridic Technique].
If the situation belongs to private law, absence of a corresponding norm in legislation does not mean there is a gap in law. In the Soviet Union there was no private law. So, V.I. Lenin wrote: "We claim that nothing is private, for us everything in the economics domain is public, not private"1. But now private law is a plenipotentiary part of the Russian law.
However, public sphere is a different matter. If social and technical relations affect a public interest, i.e. belong to sphere of the public law, while they are not expressed by a corresponding legislation norm, then we should admit there is a gap
At the same time, it is essential to work for having a minimum number of regulatory legal acts. Otherwise the overwhelming majority of population will have problems with obtaining information about legislation: the bigger is the number of norms, the easier it is just to be lost in them. Even when duly informed, there are few people who will be able to see the correlation between legal norms, understand their hierarchy, etc. Now and then this provokes legal nihilism, i.e. citizens do not have an aspiration to comply with legislation, for, in their opinion, whatever they do they will still never succeed to keep clean in the face of the law.
In lawmaking it is necessary to act on the assumption that by means of legislation we must regulate only those issues that citizens and organisations cannot regulate by themselves and that affect their common interests. Unjustified legal overregulation of social life results not only in putting limitations on personal liberty, and in extinguishing people's energy, it also causes inflation of legislation, which can mean complete paralysis of law as a social regulation instrument2. It is particularly true about external legal redundancy, when the same issues are regulated by an ample quantity of normative acts.
Comprehensibility rules of juridic technique also imply ensuring compliance of legal documents with principles and standards of international law. When in the course of lawmaking and law enforcement agencies take into account international rules, it contributes to convergence, unification of national systems that regulate corresponding relations. Ultimately, it helps any country to develop its potential to survive in the contemporary world.
Now we come to examining logics rules as the next group of juridic technique rules. Their application in lawmaking or in law enforcement is silent, but obligatory and natural. According to N.A. Vlasenko "Procedures followed by the norm-giver when dealing with units of the Russian language, comply with laws and rules of formal logics, which in their own way form the outwardly invisible, but extremely important logical basis of the normative text"3.
We will lay emphasis on the following rules that belong to the group of general logics rules and play an essential role in social and technical lawmaking:
1.Uniform understanding of terms. Using the same term in several mutually
Lenin V.I. Collected works. Volume 44. - P. 398.
2Kashanina T.V. Yuridicheskaya tekhnika. - Moscow, 2007. - P. 112 [Juridic Technique].
3Vlasenko N.A. Kollizionnye normy v sovetskom prave. - Irkutsk, 1984. - P. 23. [Conflicts Norms in the
Soviet Law.]
exclusive meanings in one document constitutes a great danger. In case of violating the given rule, addressees of technical legal norms are disoriented. Infringement of this rule can bring to nought all efforts aimed to draw up technical reglaments or any other normative legal documents in the region of technical regulation.
2. Consistency between different legal documents (parts of one legal document). Under internal consistency of the normative legal document we understand interaction between its provisions, when each prescription arises from the preceding one, develops and specifies it.
3.Absence of contradictions between legal documents (parts of one legal document). In literature any situation, when there occur contradictions in regulatory legal acts (normative technical documents), is conventionally referred to as collision. According to A.F. Cherdantsev, collision is "a situation when two or more norms of incongruous content can be applied to the same case"1. Yu.A. Tikhomirov understands the concept of collision even in a broader sense: basically, he treats concepts "collision" and "conflicts" as synonymous2. Anyway, contradictoriness represents a bigger degree of "colliding" between legal standards, in comparison with inconsistency in provisions of law, and is more intolerable3.
Contradictions in a legal document are frequently divided into obvious, which are visible and easy to reveal, and latent, which are difficult to recognise when reading the act for the first time. The latter manifest themselves only in the course of realisation of the legal act. Besides, there is a separate category of illusory contradictions, i.e. parts that, as a rule, appear as contradictory when one reads the document for the first time, quickly and with not enough care.
Collisions of provisions of law are definitely most often caused by objective reasons, for example by dynamics of social life, including changes in the region of technical regulation. Still occasionally it also happens for subjective reasons (poor information awareness on the side of the lawmaking body, imprecise delineation of state agencies' competences on questions of technical regulation, etc.).
4.Sequence of intellectual operations, used when designing legal acts. This is a general rule, according to which a sequence of statements where each statement ensues from the previous one guarantees high quality of the deduction.
5.Persuasiveness of legal documents. Developing technical legal norms is an eminently intellectual assignment. However, thoughts expressed both in normative and in law enforcement acts can be either true or false, hence, formulating a true thought implies proving that it is true, i.e. substantiating its compliance with reality.
To prove verity of normative acts is more difficult. This is a more labour-intensive activity. For this purpose one can use the background experience of human race (for example, with evolution of society sanctions are getting less
1 Cherdantsev A.F. Teoriya gosudarstva i prava: Uchebnik. - Moscow, 1999. - P. 211 [Theory of State and Law: Course Manual].
2Tikhomirov Yu.A. Yuridicheskaya kolliziya. - Moscow, 1994. - P. 27 [Juridic Collision].
3Kashanina T.V. Yuridicheskaya tehnika. - Moscow, 2007. - P. 122 [Juridic Technique].
severe), laws of other countries aimed at legal regulating particular parts of social life, elements of legal science and other sciences. Often the persuasion force of a particular normative act is manifested in a most concentrated form in the preamble of the document.
Structure rules are meant in the first place to determine the inner form of the legal document. Structure of the legal document presents the way it is constructed. Like in constructing buildings and any construction processes in principle, constructing a legal document in the region of technical regulation must comply with certain canons. The main canon is dividing the document into parts.
The purpose is to ensure the following:
a.complete presentation of the information required for a legal (technical legal) document (if the information is not systematically arranged there exists a real danger that part of it can be left out);
b.effective comprehension of legal information by its addressees (for example, if technical reglaments are not systematically arranged, the addressee will have to make considerable intellectual efforts to classify and select the information, and it is unlikely that all addressees can do it in principle, and even in case they are skilled enough, it will take them a lot of time).
Accordingly, any legal document contains at least three parts: the introduction, main body of the text, and conclusion.
The introductory clause presents most of the requisites of the legal document; as a rule it also contains a brief preamble, which aims to ensure that the legal document is well-founded and convincing.
As a rule, in complex legal documents the main body in its turn is subdivided into components. The main body of the normative act is divided into sections, chapters, articles, paragraphs, subparagraphs, rubrics, etc.
In all kinds of legal documents the conclusion is generally small. It brings into focus less significant issues, for example, duration of the document, order of appeal (though all recipients should be aware of the appeal order as it is, since it is established by the normative act), list of abatable and alterable acts, etc.
In addition, in many cases regulatory legal acts in the region of technical regulation contain appendices, which are placed after the conclusion. If there are several of them, they are given respective index numbers. The appendices can contain tables, graphics, sample documents, diagrams, etc. Normally, materials presented in appendices are of applied relevance. For this reason it is fully justified that they are used autonomously, that is apart from the main body of the legal document regulating social-technical relations. Supposing such prescriptions were placed within the act itself, the latter would be bulky, and it would be inconvenient to use it, while the materials included in appendices would have unequal value in comparison with each other.
According to structure rules, regulatory legal acts are also to contain references. References to other regulatory legal acts demonstrate interrelation between them. References present one of attributes common to legal documents.
The main assignation of references is to inhibit repetition of legal information
in legal documents. Juridical acts in the region of technical regulation are intrinsically complex both in content and in form. References allow to streamline their form, make them compact and accessible for viewing and applying.
Language rules have a paramount importance in lawmaking activity. The legal act, being the means of controlling people's behaviour, in the first place appeals not to feelings and imagination of the person, but to his or her will and reasoning powers; it imperiously prescribes certain manner of action. Hence the language of the legal document is the language of public authorities, and therefore it must be imperative and official by nature. Taking this into account, the author of the legal document is obliged to abide by the rules that concern the language. Legal literature prescribes the following main language rules.
Clarity
Clarity means that the normative legal document should be simple and understandable. The requirement is to compose a legal document in such a way that all addressees could understand it. Lack of clarity in the legal act results in the fact that such document does not give a comprehensive idea of what behaviour is expected from a person in a particular situation, which brings about uncertainty, confusion and mistakes.
T.V. Kashanina classifies different degrees of lack of clarity in normative legal documents as follows1:
• total vagueness;
• ambiguity;
• inadequate clarity.
Degree of simplicity and clarity is determined according to the target audience, i.e. at whom this particular regulatory legal act is aimed. If the set of people subject to a certain act is not determinate, such an act shall be written in a simpler language. However, if the legal act regulates a narrow sphere of technical regulation, its text can be quite scientific and complex, containing some technicalities.
Accuracy of the normative legal document
Accuracy is understood as compliance with something. Comparison of legal language with any other language evidently shows that the level of accuracy and precision in the former is by far higher.
In some cases the former language rule of juridic technique (clarity) can come into collision with the latter (accuracy). Indeed, clarity and understandability of the act can hinder the exactness of the juridical wording, and conversely, heightened attention to precision can make the text more sophisticated and vague. Nevertheless, all academic lawyers who examined the problem of the contradiction between clarity and accuracy of the legal document, suggest to give the preference to accuracy2, for without accuracy and precision the document
1Kashanina T.V. Yuridicheskaya tehnika. - Moscow, 2007. - P. 131 [Juridic Technique].
2Vlasenko N.A. Yazyk prava [Legal Language]. - Irkutsk, 1997. - P. 22; N.P. Shmakova. Vedomstven-noe pravotvorchestvo [Departmental Lawmaking]: Synopsis of thesis for candidate of legal sciences dissertation. - Moscow, 2006. - P. 26-27.
loses its certainty, so there appear conditions for it to be interpreted inconsistently, while contradictions in its interpretation provoke possible abusive practices.
Comprehensibility of regulatory legal acts
Comprehensibility means that persons subject to preventive or educational work should have a possibility to understand technical legal norms.
Comprehensibility is enabled by applying the following techniques:
• using maximally simple words, terms, phrases, that are common in everyday practice and easily apprehended by most of the population;
• avoiding use of complex structures with participial and gerundial constructions in legal acts;
• avoiding excessive use of borrowed words;
• avoiding use of formal and bureaucratic patterns, archaisms, etc.
Brevity of normative legal documents
Different scholars when referring to this language rule use different terms -compactness1, economy of words2, laconism. All of them actually mean the same thing, i.e. contraction of the volume of the legal document, but certainly not to the detriment of its quality.
According to T.V. Kashanina3, brevity is enabled by applying the following techniques:
• avoiding verbiage;
• reducing unjustified repetition of separate phrases (if there appears such a need, it is preferable to give in brackets a concise generalising formula and to use it henceforth in the text);
• using terse language;
• using typed (standardised, stereotyped) formulations;
• giving definitions in the beginning of the document so there is no need to repeat them frequently in what follows, thus extending the document.
Absence of pathos and declarativity in the legal document
An aspiration of the lawmaker to amplify significance of the legal document occasionally results in legal demagogy, which is the extreme and the most dangerous form of ideology imposed by the legal document. V.M. Baranov defines legal demagogy as intentional (in some cases deceitful) impact on people's emotions and knowledge by means of various forms of one-sided or vulgarly distorted presentation of the legal reality in order to achieve own vicious objectives, usually disguised under the pretence of achieving benefits for the public and prosperity of the state4.
Legal demagogy was typical of normative acts in the Soviet period. Today
1Vlasenko N. A. Yazyk prava. - Irkutsk, 1997. - P. 22 [Legal Language].
2Boshno S.V. Pravotvorchestvo: put' ot istochnika k forme prava: Lektsiya. - Moscow, 2002. - C. 75 [Lawmaking: Route from the Source to the Form of Law: Lecture].
3Kashanina T.V. Yuridicheskaya tehnika. - Moscow, 2007. - P. 118-120 [Juridic Technique].
4Baranov V.M. O pravovoi demagogii. Nizhegorodskie yuridicheskie zapiski: Sbornik nauchnykh tru-dov. Issue 3. - Nizhni Novgorod, 1997. - P. 22-23 [About Legal Demagogy. Juridical Notes of Nizhni Novgorod: Collection of Scientific Papers].
legal acts are no longer demagogic, but there are still many declarative acts. Some magniloquence is also evident in practically all international acts: their preambles are full of pathos. It is connected with the fact that international rules are not subject to sanctions, i.e. they are obeyed voluntarily. In this case pathos functions as an instrument to convince the parties who sign the given international act of its significance, and by doing so to enhance efficiency of its execution. However, in other regulatory legal acts pathos only dissipates attention of addressees thus impairing the effectiveness of legal documents that regulate social technical relations.
Officiality of the style of legal documents
Although many authors treat juridical style of rendering legal documents as a modification of literary style, nevertheless we should note that there might be more differences than similarities between this style and those of other literary sources1.
Authors who thoroughly examined this problem distinguish the following characteristic of juridical style features:
• chastity of style;
• giving full value to each word;
• neutrality;
• impersonality;
• absence of any originality and pronounced stylistic individuality;
• distance and even emotional chill;
• absence of figurative comparisons;
• authoritativeness (imperious tone).
The indicated language rules provide a basis for formulating technical legal norms in the course of social-technical lawmaking. It is difficult to overestimate their implications for practice of preparing legal documents.
Formality (requisites) rules are necessary to identify and record the legal document in order to initiate proceedings aimed at its mandatory performance. For this purpose each regulatory legal act has attributes (requisites) that represent its official character and distinguish a particular document from a great number of similar documents. Such attributes (essential elements, requisites) include:
• name of the type of the legal act (designating the type of the act is of great significance: it allows the addressee to immediately specify the sensitivity, officiality and obligatoriness of the given legal document);
• name of the publishing body (what body published the legal document predetermines its legal force; there must be absolute correlation between the type of the normative act and the publishing body);
• name of the document (full and shortened; the title plays a paramount role in normative acts, since it helps to determine the subject-matter and the sphere of social relations it regulates; clear and correct reflection of the subject to regulation is essential for the executor to be able to
1Kashanina T.V. Yuridicheskaya tekhnika. - Moscow, 2007. - P. 121 [Juridic Technique].
specify the content of the legal act judging only by its name, also to remember the name easily, and, if necessary, to quickly find the act; besides, the title is important in terms of filing and record keeping of normative acts);
• adoption date (according to the Federal Law "On the procedure of publication and entry into legal force concerning federal constitutional laws, federal laws, acts of Chambers of the Federal Assembly", the adoption date for the federal law (code of laws) is the date it was adopted by the State Duma in its final formulation);
• reference number of the regulatory legal act (the reference number facilitates searching the legal act; it is given to the normative act at the very end of the rule-making process by the body that adopted this act; departmental acts that affect rights and freedoms of citizens, the legal status of organisations or fall into the category of interdepartmental acts, are given the reference number when the Ministry of Justice of the Russian Federation register them in its card index after it checks its; the reference number is given in succession subject to the date the particular normative act of this or that type was adopted during the calendar year).
There also exist requisites, which are placed at the end of the normative act. They are of less significance, though they present an essential attribute of the legal act as well. Such requisites include:
• place (name of the city);
• date of signature;
• full name of the position of the signatory (signatories);
• last name and initials of the civil servant(s) who signed the document;
• personal signature(s) of the signatory (signatories) (only the original legal document is signed).
Procedure rules (also referred to as rules of practice) formalise the process of adopting regulatory legal acts. Legal consequences that arise on account of publication of law enforcement jurisdictional documents are noted for their rigidity, they have a dramatic impact on people's behaviour and fates. Even the least deviation from the procedure of their adoption can occasionally cause a very painful effect on interests of subjects of law. That is why the adoption procedure for them is essentially different from the procedure of making legal documents of the former block in terms of precision, degree of going into detail, and even austerity.
General procedure rules of juridical technique include the following:
• legitimacy of the procedure (means that sequence of operations connected with adoption of the legal document is prescribed in relevant normative acts; so, the procedure of adoption departmental acts is covered by about ten normative acts - edicts, decrees, letters of the Ministry of Justice of Russia);
• rationality (optimality, practicability) of the procedure (this rule furnishes
achieving the objective of quick and full implementation of juridical activity with least possible efforts, expenditures and time on the part of state agencies, civil servants and citizens);
• justification of the procedure (it means that relevant in law actions are performed in the sequence, which appears from actual conditions);
• planned character of the procedure (the course of law can occasionally be so complex that it takes a long time; for economy of time and efforts, as well as in order to make the process more convenient for specialists who implement the procedure, it is efficient to plan it in advance);
• logical sequence of performing actions that compose the procedure (logics should penetrate not only the content of legal documents, but also the procedure of implementing juridical activity);
• compliance with procedural time constraints (the term "time constraints" specifies a certain space of time, during which some act, operation or action must be implemented, or, conversely, during which it is prohibited to take any actions; this requirement is often supported by indicating specific requirements of the law, i.e. legal time constraints);
• application of sanctions for breach of the procedure (sanctions can vary significantly: e.g., criminal, disciplinary sanctions, etc.; it is also possible to declare a particular legal act invalid or insignificant).
The overview of procedure rules would not be complete without emphasising that by no means one can treat them as second-rate in comparison with other general rules of juridical technique, since they are aimed at achieving two vital objectives. They:
• increase effectiveness of juridical activity;
• guarantee citizens' interests affected in the course of juridical activity.
Hence, the conducted research justifies that in social and technical
lawmaking it is necessary to use omnifarious knowledge about reality, its history and perspective social changes; special knowledge about statutory powers, law and legislative technique, technologies used in the process of making and implementing laws, etc. Being governed by rules of juridical technique, lawmakers who design regulatory legal acts in the region of technical regulation should view technical reglaments as documents that regulate interpersonal relations.
Still in practice, evidently as a matter of sticking to previously common traditions of developing regulatory documents; even today many of those who develop technical reglaments treat them as standards rather than legal acts, that is, as documents, which set requirements exceptionally to objects of technical regulation and not deal with interpersonal relations at all. Meanwhile the Federal Law "About Technical Regulation" positions technical reglaments in a different way, namely it demands to treat them as regulatory legal acts.
Hence, the main contents of technical reglaments should consist of technical legal norms rather than technical requirements, and regulation of technical actions rather than determination of precise (or interval) parameters and features for each product unit, while regulation of "technical actions", meaning purposeful activities
of people (design engineers, manufacturers, government controllers, etc.), should be aimed to ensure compliance of technical regulation objects with the set of safety requirements1.
The Federal Law "About Technical Regulation" establishes principles of setting up a new system of technical regulations, which are most fully reflected in the interpretation of technical legal norms as provisions that regulate interpersonal relations in the course of making an impact on nature and objects in the framework of production activities. Compliance with essential rules of conduct when processing and using a particular product is the responsibility of the person not in relation to this product, but in relation to other people, society and state, and they are far from being indifferent if these regulations are followed or not. In cases when the society and state are particularly interested in observance of these or those technical requirements, they enforce them as legal norms, establishing in juridical acts both the requirements themselves and the corresponding technical regulations. After they are fixed by a legal act, technical norms acquire legal force and become technical legal norms. They have all the attributes of the legal norm, namely:
• they are initiated by the state;
• express the state will;
• they are embodied in an objective form of special normative acts published by competent bodies;
• they regulate social relations;
• their observance is ensured by the possibility of state enforcement.
In addition we should point out that any legal norm is designed to regulate not some specific question, but extended generic social relations. That is why a technical legal norm that regulates social technical relations and is enforced by the technical reglament should have the following attributes:
• it should be represented as a general norm (not to contain specific technical and technological parameters);
• it should be designed for the future (meant not only for the given case (relation) on hand, but also for an indefinite number of generally specified cases and relations to be implemented every time, when there arise circumstances and situations prescribed by this norm);
• it should be addressed to a particular set of people specified by some generic features.
Accordingly, the role of legal regulation in the system of technical regulation manifests itself in two aspects: in fixing by technical legal norms certain generalized technical requirements and in providing legal measures aimed to ensure observance of these requirements. This means that the normative standards established by technical reglaments can be used in legal proceedings
1Krasavin A.V. Antikorruptsionnaya ekspertiza Federal'nogo zakona «Tekhnicheskii reglament o trebovaniyakh pozharnoi bezopasnosti» / A.V. Krasavin // Stroitel'naya orbita. - 2009. - № 12. - P. 6568 [Anti-Corruption Expertise of the Federal Law "Technical Reglament about Fire Safety Regulations" / A.V. Krasavin // Constructional Orbit].
as a juridical tool. Hereby each normative standard of the reglament should be subjected to the procedure of conformance evaluation, which is not always done, we regret to say.
Nevertheless, the prescribed norm must be verifiable, i.e. its practicability must be empirically provable, and the applied method of conformance evaluation, which means that the method of proof must match the validation procedure, also referred to as an aptitude test. Verification and validation are necessary filters in selecting normative standards and methods of conformance evaluation.
Generally speaking, the technical reglament, since it has an impact on broad groups of subjects, should comply with requirements of clarity in formulating juridical prescriptions and comprehensibility of the text of federal laws in such a way that the wording can be understood not only by specialists in the given field, but by other interested parties as well1. In other words, the technical reglament should be made with observance of the rules of juridical technique, which are examined in the present work. Main rules to be followed are: integration of the content of the legal norm and its wording; logical sequence of rendering, interrelation between normative prescriptions given by the act; absence of internal contradictions; maximum compactness in rendering provisions of law while sticking to profound and all-round expression of their content; clarity and comprehensibility of the language of normative acts; accuracy and certainty of formulations and terms used in legislation.
Russian lawyers proposed a model structure of the standard technical reglament. Their proposal is based on analysis of norms prescribed by the Federal Law "About Technical Regulation", and also of international standards and directives in force. According to the proposed structure, the technical reglament should consist of the following elements2.
General Provisions (including its sphere of action, objectives of the legal regulation, concept definitions, etc.)
This part explains the nature of the regulatory document, its place in the corresponding branch of legislation, goals and objectives, which the requirements established by the given technical reglament are aimed to achieve. Articles and provisions of this section lay the foundation for the whole technical reglament. They compose its general part, whil e all other sections are considered its special part. This section should clearly state the scope of application (action) of the given technical reglament and specify objects of technical regulation that come within its action.
Factors of Risk of Causing Harm
1Kalmykova A.V. O soblyudenii pravil zakonodatel'noi tekhniki v proektakh tekhnicheskikh reglamentov, prinimaemykh v forme federal'nogo zakona // Jurnal rossiiskogo prava. - 2006. - № 9. - P. 28-39 [About Compliance With Rules of Legislative Technique in Drafts of Technical Regulations, Adopted in the Form of a Federal Law // Magazine of Russian Law].
2L.K. Tereschenko. Konceptsiya pravovogo obespecheniya tekhnicheskogo regulirovaniya // Zhurnal rossiiskogo prava. - 2006. - No. 9. - P. 3-17 [Concept of Legal Groundwork for Technical Regulation // Magazine of Russian Law].
Development of any technical reglament is initiated on assumption that the given object of technical regulation presents a potential source of danger. The danger class is used to reflect results of quantitative and qualitative assessment of danger and the probability it will occur. Article 7 of the Federal Law "About Technical Regulation" gives a complete list of factors, against which risk acceptability should be assessed. In this part of the technical reglament it is necessary to specify the systematic nature of regulating relations in the corresponding safety sphere and to regulate not all possible factors that can in practice affect the safety of the given object of technical regulation, but only the most significant ones. In other words, when developing the technical reglament, it is essential to assess, which of the specified factors play the most important role in ensuring safety control of particular objects of technical regulation, and make these very factors subject to regulation. Adhering to these principles contributes to achieving compactness of the technical reglament and practical realisability of all mandatory requirements the reglament prescribes.
Fundamental Safety Requirements
The key feature of the special part of the technical reglament is the complete list of safety requirements set for objects of technical regulation, which have a direct effect in the territory of Russian Federation.
Forms of validating the conformance
The given section of the technical reglament also plays a critical role. As we have already said, each normative standard of the reglament should be attended by conformance evaluation, while absence of clear rules and forms of conformance evaluation does not allow to verify the compliance of the object of technical regulation with the corresponding requirements contained in technical reglament.
Controlling and Supervising Observance of Requirements of Technical Reglament
The given section of the technical reglament can contain the following information: 1) procedure of state control (supervision); 2) stages of production/ operation of the product, during which there takes place state control (supervision); 3) features of carrying out the state control (supervision), prescribed by international acts and treaties, in which one of the parties is the Russian Federation; 4) coordination and the interaction between different controlling bodies; 5) development of procedures for integrated checks as of observance of safety requirements at objects of technical regulation; 6) procedure of carrying out production and social control.
Liability for Infringement of Requirements of the Technical Reglament
This section should contain stipulations as of who, in what cases, and on what grounds is responsible for violation of requirements of the technical reglament. Moreover, there should be stipulated not only responsibility of legal bodies and individual entrepreneurs, but also responsibility of certification agencies and controlling bodies.
The Order the Technical Reglament Enters into Legal Force (transitory
provisions)
This section specifies: 1) the order of introducing the technical reglament into effect; 2) giving the President of the Russian Federation and the Russian Federation government mandates to prepare and adopt regulatory legal acts, securing safety of objects of technical regulation; 3) giving the President of the Russian Federation and the Russian Federation government mandates to bring their regulatory legal acts in conformity with the adopted law on the technical reglament; 4) the order and conditions of applying the regulatory legal acts and normative technical documents, which remain in action and/or change their status after enactment of the technical reglament; 5) operation of documents that prove compliance of objects of technical regulation with specified requirements in case these documents were enacted before the technical reglament entered into legal force.
Appendices
The given section is not obligatory. If, for purposes of detailing the specified requirements, there arises the necessity to include in the technical reglament tables, diagrams, maps, designs, they should be presented in the form of appendices, whereas relevant norms pertaining to the design should have references to corresponding appendices.
References:
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