Termination of a normative act means its loss of legal force. The normative act ceases to have effect as a result of:
The expiration of the period for which it was adopted (such as, for example, laws on the tariffs of contributions to state social extra-budgetary funds adopted for a specific year);
Direct repeal of this act (usually the rule on the loss of force of any normative act is contained in a special normative legal act, for example, in the law on the enactment of the Tax Code);
The adoption of a new normative act of equal or greater legal force, regulating the same range of social relations. In such cases, a normative act that has not been officially repealed or its individual norms actually loses force due to the publication of a new normative act establishing a different procedure for legal regulation (thus, with the adoption of part one of the Civil Code of the Russian Federation, which established the institution of trust management of property, the Decree actually lost force President of the Russian Federation dated December 24, 1993 N 2296 “On fiduciary property (trust)”, and with the adoption of the Tax Code, the provisions of Article 22 of the law “On personal income tax”, establishing liability measures for tax agents for violation of this law, actually became invalid, since such liability is provided for in Article 123 of the Tax Code).
Effect of regulatory legal acts in space
The limits of the validity of normative legal acts in space are the limitation of the validity of a normative act only to the territory covered by the sovereignty of the state or the competence of the corresponding law-making body.
These limits are determined on the basis of territorial and extraterritorial principles.
In accordance with the territorial principle, the effect of a normative legal act extends to the entire territory within the state or administrative boundaries of the activity of the law-making body.
Thus, federal laws and other regulatory acts of federal authorities are valid throughout the entire territory of Russia, acts of constituent entities of the Russian Federation only on the territory of these constituent entities of the Russian Federation, and acts of municipal entities are applied only within the boundaries of these administrative units.
The extraterritoriality of a normative legal act means the spread of legal acts of a given subject of lawmaking beyond the territorial boundaries of the activity of this subject.
In other words, application on the territory Russian Federation legislation of foreign states is allowed in some cases, but only to the extent that it is allowed by national legislation and defined in an interstate agreement.
For example, in accordance with the legislation of the Russian Federation, when considering civil disputes over property, the court must apply the legal acts of those foreign states on whose territory the disputed property is located.
Effect of regulatory legal acts on the subject
The scope of action of normative acts on the subject is determined by the range of social relations that are regulated by this act, the branch of legislation to which it relates, and the type (general or special) of the legal norms contained in it.
The norms of the Constitution of the Russian Federation have unlimited effect on the subject - they directly apply to all legal relations arising in the state. The effect of industry codes and laws is limited to the scope of the subject of this branch of legislation. So, in accordance with Art. 2 of the Civil Code, the norms of civil law apply to property and personal non-property relations between equal entities and do not apply to property relations based on power subordination - tax, financial, administrative.
There are exceptions to this rule when the law provides for the possibility of applying the provisions of one branch of legislation to relations regulated by another branch. For example, according to Art. 11 of the Tax Code, the institutions, concepts and terms of civil, family and other branches of legislation used in this Code, if they are not defined in the Code itself, are applied in the meaning in which they are used in these branches of legislation.
Within the boundaries of the same branch of legislation, special rules have priority over general ones.
The essence of this rule is as follows. A normative act may contain general provisions for a certain range of social relations (for example, for relations related to the conclusion and execution of a purchase and sale agreement) and at the same time provide for special rules specifically established for specific cases (for example, for the purchase and sale of real estate). In situations relating to this particular type of relationship, special rules will primarily apply. So, according to Art. 454 of the Civil Code, the general provisions on purchase and sale apply to a real estate purchase and sale agreement as a type of purchase and sale agreement, unless otherwise provided by the rules of this Code on this type of agreement.
Effect of regulatory legal acts on a circle of persons
As a general rule, it is recognized that regulatory legal acts apply to all persons located in the territory of application of this regulatory legal act and who are subjects of the relations provided for by it, including those that apply to foreigners and stateless persons operating or residing in this territory.
Thus, most tax laws define the circle of persons (subjects) to whom the provisions of this law apply. For example, the subjects of the law on income tax are tax payers, defined as enterprises and organizations (including budgetary ones) that are legal entities according to the legislation of the Russian Federation, including credit and insurance organizations, as well as enterprises with foreign investments created on the territory of the Russian Federation, international associations and organizations engaged in business activities. Therefore, any of the listed persons, if they carry out entrepreneurial activities, will be subject to the law on income tax.
From general rule There are also exceptions, for example, in relation to foreign persons entitled to legal diplomatic immunity. For example, such persons cannot be subject to penalties for violating the criminal and administrative legislation of Russia.
Realization of the right- this is the embodiment in real life and people’s behavior of the content of legal norms. The implementation of the right is carried out by the participants of the emerging legal relations (subjects) themselves in the following ways:
- compliance with prohibitions- with this form of exercise of the right, the subject refrains from actions prohibited by the normative act, does not violate established prohibitions (for example, the Taxpayer does not interfere with access to its territory official tax authority conducting the audit);
- performance of duties- with this form of realization of the right, the subject takes active actions aimed at fulfilling the obligations established for him by the normative act (the taxpayer pays the tax, the tax authority keeps records of taxpayers, the seller transfers the goods to the buyer);
- use of rights- this form of exercise of the right in which the subject uses the opportunities provided to him by the legal norm (the taxpayer submits an application for a refund of the overpaid amount of tax, the owner leases the item, the tax authority conducts an on-site audit).
Topic 2: “Topic 2: “Legislative technique: concept and basic elements”
Lecture 2: History of the development of legislative technology. Basic concepts and elements.
History of the development of legislative technology in pre-revolutionary Russia. Legislative technology of the Soviet period. Foreign experience of legislative technology. The nature and purpose of legislative technology. Rules of legislative technology. The main elements of legislative technology: cognitive (evaluation of law and law as ways of social life and its reflection), normative structuring of the text of the law, means of documenting a bill, rules for preparing a bill, etc.
The question of the development of legislative technology is usually considered in two aspects: the first is the practical development of this technology in the preparation of laws; the second is its scientific development. If practically some forms of legislative technology arise along with the first laws, then the scientific understanding of this type of activity appeared quite late, at the end of the 23rd century. or at the beginning of the 19th century. In the West, this problem was dealt with by Jeremy Bentham (1748-1832), and in Russia it became especially relevant in connection with the codification Russian laws, carried out by M.M. Speransky (1772-1839). The underestimation of the theoretical significance of this problem is evidenced by the fact that not a single Russian encyclopedia contains a definition of the concept of legislative technology.
For the first time, the norms of customary law of Ancient Rus' were recorded not in law, but in treaties between Russians and the Greeks (Byzantium) in 911, 944 and 971. They included separate rules of criminal and inheritance law. It can be assumed that this was the initiative of the Greeks, accustomed to laws, i.e. written law, while Rus' lived according to unwritten customary law. The originals of the treaties have not survived, and their texts remain only in chronicles. The language of these texts is so different from the modern one that all their publications are accompanied by translations into a modern language. Treaties are not divided into articles; this division was introduced into them by researchers for ease of use. It is possible to note the appearance of some basic legal terms in the texts of contracts. So, in Art. 6 of the treaty of 944 talks about liability for theft “according to Greek law and according to the charter and according to Russian law.”
You should pay attention to an interesting nuance: the adjectives “Greek” and “Russian” come after the noun “law”, which is typical for Latin, and not for Russian. This is also a manifestation of Byzantine influence, since the Byzantines dealt with Roman laws written in Latin.
The first legislative act of Ancient Rus' was “Russian Truth”, existing in short, lengthy and abbreviated editions and in many lists. The initial version is considered to be a short edition, the first articles of which are attributed to Yaroslav the Wise and dated back to 1016, while the appearance of a lengthy edition dates back to the reign of Vladimir Monomakh. This monument of legislation of the 11th-12th centuries. regulates issues of criminal law and procedure.
Like treaties, “Russkaya Pravda” was not divided into articles; they are also included in it in our time by researchers for ease of use. A method of legislative technique, of course, is the normative construction of sentences in the text. The hypothesis and disposition are clearly visible in it, which is expressed by the words: “If..., then...”. The word “even” corresponds to the present “if” or “if”. Sometimes instead of “asche” the words “azhe”, “auger”, “and izhe” are used. If the sentence does not contain these words, its normative character is preserved, which can be shown by the example of Art. 1: “to kill your husband’s husband, then take revenge on your brother’s brother...”. This norm regulated the blood feud that existed at that time. But already in a lengthy edition, following the reproduction of the first article, the second says that the sons of Yaroslav and their husbands abolish blood feud and replace it with ransom - vira. It is added that otherwise Yaroslav’s norms continue to apply.
In addition to this new method of legislative technique, article headings are introduced in a lengthy version. Yes, Art. 3 has the heading “On Murder”, followed by articles related to this type of crime. Unlike the short edition, where such articles are scattered (vv. 1, 19-27, 38), here they are collected together. Headings are also introduced for other parts of the text, for example, “About the servants,” “About the gang,” “About the vault,” etc.
One of the major all-Russian acts should be considered the Code of Law of 1497, which had the title: “In the summer of 7006, the month of Septembria, the Great Prince Ivan Vasilyevich of All Russia laid to rest with his children and the boyars in court.” It exists in one list. In the introduction to the publication of this Code of Laws, the opinion is expressed that it was the first major codified act in Europe and may have prompted the creation of “Carolina” in Germany, since the Code of Laws of 1497. in Western Europe, reported the ambassador of the German Emperor Sigismund Herberstein.
The Code of Law also does not have a division into articles; it was made during the first publication of the text by M. Vladimirsky-Budanov. Since the text contains cinnabar initials, L.B. Cherepnin proposed his own division into articles, based on them, but in existing publications the division of M. Vladimirsky-Budanov is preserved. The Sudebnik adopts the use of headings introduced in the lengthy edition of Russkaya Pravda, but this is also not done clearly enough. Thus, the title “On legal literacy” is given in Art. 15, 22 and 40, and the heading “On field duties” is in Art. 4 and 68. The headings show that the Code of Law includes at least the following four previously issued decrees: o governor (Article 20), o riding (Article 30), governor o city court (Article 37) and o tatyakh (Article 39). The decrees were included in the Code of Laws in their entirety without reworking or adapting their text to the new norms.
Probably, this imperfection of legislative technology explains the repetition of headings and content in a number of articles. The normative nature of the construction of sentences in the Code of Laws is preserved, but it is not as clear as in Russkaya Pravda, since it does not use the expressions “if... then...”, and mostly phrases begin with the conjunction “a”.
The language of the Code of Law still requires translation, and since this is an act regulating judicial activity, it contains mainly criminal law and procedural terms. Only in Art. 46, 47, 58 and 70 discuss civil law relations, and therefore this terminology is sparse. There is a term “loan”, but there is no term “claim”. The inheritance is no longer called “ass”, but “status” (Article 60). In the same article there is the term “spiritual letter”, meaning “will”. The terms “plaintiff” and “defendant” are widely used, but in the absence of a clear line between criminal and civil proceedings, they are also used in criminal cases.
In the first years of the reign of Ivan the Terrible, the Zemsky Sobor adopted the Code of Laws of 1550. It was found in 1714. historian B.H. Tatishchev and exists in 40 lists. Its language is so close to modern that the text is published without translation. The introduction to its publication says: “...The code of law of 1550 stands at a much higher level of development of codification technology than all previous Russian legislation.” The higher legislative technique was expressed primarily in the fact that this was the first Russian legislative act, divided into articles and having a preamble. Articles are indicated in Arabic numerals without any other words or symbols. But at the same time, it does not contain headings of articles or groups of articles. This is difficult to explain, taking into account the desire of the drafters of the Law Code, noted in the introduction, to group articles according to their content.
Based on the Law Code of 1550. The text of the Law Code of 1497 is based, but edited, with changes and additions. Let's turn to Art. 56 of the Code of Law of 1497, which reads: “And a slave will be captured by the Tatar army, and he will run out, and he will be free, but the old sovereign will not be a slave.” In Art. 80 Code of Laws 1550 this norm is stated as follows: “And a slave will overwhelm the army, and he will run out and he will be hungry, but the old sovereign is not a slave. And that slave will want to go to his old sovereign, and that slave will be revealed to the boyars, and the clerk will sign on the old fortress, and taxes will be collected at an altyn per head. And when a slave runs with his sovereign, or runs alone without his sovereign, and does not overwhelm the army, and that slave will come out of those lands again to Moscow, and he will be a slave to the old sovereign according to the old servitude, besides the one to whom the sovereign grants something, will give him a free charter.” . If the first article only talks about Tatar captivity, then the new one talks about captivity in general, i.e. the norm is given a more general character. Probably, when applying the original article, cases arose when a slave wanted to return to his master, and this is provided for in the new edition. Finally, the new edition seeks to prevent the possibility of legalizing an escape by reference to captivity, i.e. the possibility of abuse of the established norm.
Interesting article 97 and 98 Code of Laws of 1550; the first establishes the principle that the law does not have retroactive force, and the second is as follows: “And there will be new cases that are not written in this Code of Laws, and like those cases from the sovereign’s report and from all the boyars to the verdict of the arbiter, and those cases in this Attribute to the Code of Law.” Here one can see a clear understanding that no law can provide for everything and its further additions are inevitable, and that these additions should be included in the Code of Laws. In the introduction, this article is assessed as follows: “Particularly noteworthy is Article 98, which establishes the rule - to include each new legislative act in the all-Russian code of laws. This is, in essence, the first norm known to us in Russian law that reflects the direct process of developing laws. All subsequent Russian legislation for about 100 years was developed in precisely this way.”
B legal terminology Sudebnik 1550. contributed little that was new. True, the term “suit” finally appeared (Articles 28 and 44), the term “king” (in the preamble), attached to the term “Grand Duke”. To distinguish the degrees of kinship, the term “nephew” appeared, replacing the expressions “brother” and “sister’s son” used in “Russkaya Pravda”. The next Code of Law of 1589, dating back to the time of Fyodor Ioannovich, does not provide anything new, since its lengthy edition fully included the Code of Law of 1550. But further development of legislative technology can be found in the Consolidated Code of Laws, created at the beginning of the 17th century, but never officially adopted. This codification, connecting three previous codes of law, is attributed to False Dmitry or Vasily Shuisky.
Soviet period
During the Soviet period, legislative technology was given great importance. The methods and rules that define it have been improved from year to year. The present time has received a rich heritage in the form of a formed system of methods and techniques for drawing up and formalizing a legal normative act.
Legislative technology, being one of the components of lawmaking, cannot be characterized as an absolutely formal activity that does not depend on the influence of a specific historical period. Issues of legislative technology are often covered in the process of developing theoretical problems about the essence and social content of law. The form of the law, as a rule, correlates with its content. The obviousness of this can be illustrated by the fact that the first laws of the Soviet government were issued in the form of decrees, which seemed to emphasize the revolutionary content of the norms contained in them. Over time, such forms of normative legal acts as principles, principles, and laws appeared. And this is understandable, since we were talking about the most appropriate ways of translating the will of the dominant class in society into legislation.
At the same time, it is necessary to realize that legal technology- this is an independent phenomenon with its inherent qualitative features that make up its content, necessary for any legal matter of any system and regime and having the ability to adapt to their specific features.
In Soviet legal literature, the substantive works of M.M. are devoted to issues of legislative technology. Grodzinsky, I.L. Vraude, H.H. Polyansky, D.A. Kerimova, A.F. Shebanova, Yu.K. Tolstoy, O.S. Ioffe, A.S. Pigolkina, D.A. Kovacheva, A.A. Ushakova, G.I. Shatkova, a large number of articles by theorists and specialists in branch legal sciences S.S. Karinsky, V.I. Nikitinsky, O.H. Sadikova, E.I. Astrakhan and others.
When using the phrase “legislative technique”, I would like to note that we are talking not only about the techniques and rules that guided the construction of the laws of the USSR or the union and autonomous republics. The analysis covers all categories of legislative acts, which, in accordance with the official doctrine, include resolutions of the Supreme Councils, decrees of the presidiums of the Supreme Councils and those that formed the basis of Soviet legislation - resolutions of the Councils of People's Commissars, the Council of Labor and Defense, and Councils of Ministers at various levels.
Considering the typical techniques of legislative technology of the Soviet period, it should be noted that its system consisted of rules, techniques and methods characteristic of sectoral legislation, and of those universal techniques that were used in the preparation of polythematic regulations. Depending on belonging to branches or institutions of legislation, the hierarchical correlation of acts, their types, content, to a large extent on the state structure of society, its political and ideological state, various methods of constructing regulations and legislative acts were used, their forms varied and modified.
Most characteristic of the legislative technology of the Soviet period method of reproducing regulatory requirements. It was used quite often and consisted of placing in a legal act regulatory requirements included in previously adopted legislative acts. The use of this technique in some cases contributed to a more successful presentation of legal regulations in normative acts, in others it was considered undesirable. The reproduction of normative provisions was observed in acts of both different and equal legal force.
Republican bodies reproduced in the acts they issued certain normative provisions of all-Union legislation, supplementing and developing them in accordance with their competence. This practice was a natural consequence of the federal structure of the USSR and, as a rule, was justified when creating large codified acts - codes. When adopting a code or other act of the republic, issued in pursuance of the law of the USSR, the resolution of the Government of the USSR, the reproduction of all-Union provisions was considered as a method of law-making of the republic, ensuring the pursuit of a single line in the state, economic and cultural construction of the USSR and the union republics. It provided an opportunity for a comprehensive review of legal regulatory material.
The normative provisions of constitutions and foundations, included in the texts of the relevant acts of the republics, acted not only as all-Union normative instructions of direct action, but at the same time as republican legislation. In practice, as a rule, it was not the all-Union directive that was applied directly, but the article of the republican act that was formulated and adopted on its basis.
In the legislative practice of that time one can also find indirect reproduction of regulations. Thus, some provisions of the USSR Constitution of 1936 were reproduced in the constitutions of the union republics, in the fundamentals of legislation, and then in republican codes. For example, the Constitutional principles of publicity of trial proceedings and ensuring the accused’s right to defense (Article 111 of the 1936 Constitution) were reproduced in an amended version in Part 1 of Art. 12 (publicity of the trial) and Part 1 of Article 13 (ensuring the accused the right to defense) of the Fundamentals of Criminal Proceedings of the USSR and Union Republics.
3.2.2. Groups and types of legislative sources of the Soviet period
Decrees of the first months Soviet power
From the previous one it should be clear that the system-forming type of Russian legislation of modern times were constitutions, which were documents of the highest legal force. Accordingly, the characterization of the sources of this period should begin with a consideration of the constitutions adopted under Soviet power. However, the first of the constitutions appeared only in July 1918, almost eight months after the overthrow of the Provisional Government and the transfer of power to the Bolsheviks. The legal vacuum between the fall of the old regime and the establishment of a new one was filled with a very diverse set of documents of different types in nature, self-names and structure. The dominant self-name of such documents was the word “decree”, borrowed from the terminology of the Great French Revolution, and the existence of this complex is limited to the period from the October armed coup to the adoption of the first constitution of the RSFSR, where a strict legislative procedure was first defined. In domestic historiography, these documents received the collective name “decrees of the first months of Soviet power.” The historical significance of the first decrees of the Soviet government is very great, since it was in them that the configuration of the political and social structure of “the world’s first state of workers and peasants” was determined, and from source studies they are notable primarily for the absence of a unified procedure for adoption, the variety of forms and the breadth of topics (from land management issues And military service before the organization of the automobile industry, nationalization Tretyakov Gallery and “declaring the chairman of the Murmansk Council an enemy of the people”), which fully corresponded to the extraordinary circumstances of the creation of these documents.
The specificity of the end of 1917 - the first half of 1918 was that the Soviet government had to solve not only administrative, but also propaganda tasks, attracting supporters both within the country and (ideally) outside its borders. This additional ideological task gave the texts a journalistic orientation, which is especially evident in the Decree on Peace of October 26, 1917, which is, in fact, not a law, but an appeal addressed to “all warring peoples and their governments” and written in frankly rally style:
Addressing this peace proposal to the governments and peoples of all the warring countries, the Provisional Workers' and Peasants' Government of Russia also addresses in particular the class-conscious workers of the three most advanced nations of mankind and the largest states participating in the present war, England, France and Germany. The workers of these countries rendered the greatest services to the cause of progress and socialism, and the great examples of the Chartist movement in England, a number of revolutions of world-historical significance carried out by the French proletariat, and finally, in the heroic struggle against the exclusive law in Germany and long-term exemplary for the workers of the whole world, the persistent, disciplined work of creating mass proletarian organizations in Germany - all these examples of proletarian heroism and historical creativity serve as our guarantee that the workers of the named countries will understand the tasks that now lie upon them to liberate humanity from the horrors of war and its consequences, that these workers are comprehensively determined and selflessly energetic by their activities they will help us successfully complete the cause of peace and at the same time the cause of liberation of the working and exploited masses of the population from all slavery and all exploitation.
It is noteworthy that the mechanism for implementing this declaration was not only not spelled out, but was not provided for in principle, which is extremely unusual for legislative sources. But among the first decrees there are also documents that are significantly more specific in content, indicating a certain elaboration of the regulated area. To a certain extent, such elaboration was reflected in the Decree on Land, which included the so-called Peasant Mandate on Land, which summarized “242 local peasant mandates,” and to an even greater extent in the Basic Law on the Socialization of Land, approved on January 27 (February 9), 1918 d. It is noteworthy that the Basic Law on the socialization of land did not declare such a sharp break with the “old world” as many other legislative acts of that time, but, on the contrary, contained references to the “historically established system of land use”, which reflected the awareness of the complexity of the tasks government controlled, especially on the scale of a country like Russia.
The enormous scale and spontaneous nature of the changes that took place in the first months of Soviet power affected the person in whose name its decrees were issued. The very first documents of this group - appeals “To the citizens of Russia”, “The revolution has triumphed”, “To the rear and the front” and several more, issued in the first hours after the coup - were signed by the Military Revolutionary Committee of the Petrograd Council of Workers' and Soldiers' Deputies, then the initiative passed into the hands of the delegates of the Second All-Russian Congress of Soviets, and on October 30 (November 12) a decree “On the procedure for approving and publishing laws” was issued, which determined that “until the convening of the Constituent Assembly” laws are considered and adopted by the Council of People's Commissars, signed by the chairman of the Council of People's Commissars or by one of the people's commissars and either published in the "Gazet of the Workers' and Peasants' Government" or transmitted by telegraph for publication locally. The Left Social Revolutionaries objected to the right of the Council of People's Commissars to independently issue decrees, demanding that the government be placed under the control of the soviets. However, on November 4 (17), 1917, this right was confirmed by a special resolution of the All-Russian Central Executive Committee (VTsIK). “The Soviet parliament of the working masses,” read the first paragraph of the said resolution, “can have nothing in common in its methods with the bourgeois parliament, where different classes with opposing interests are represented and where representatives of the ruling class turn regulations and orders into an instrument of legislative obstruction,” and This means, as stated in the second paragraph of the same document, it is impossible to “deny the Council of People’s Commissars the right to issue, without prior discussion by the Central Executive Committee, urgent decrees within the framework of the general program of the All-Russian Congress of Soviets.” A little later, on November 17 (30), the “Order on the relationship between the All-Russian Central Executive Committee and the Council of People’s Commissars” was issued, which stated that “according to the decision of the Second All-Russian Congress of Soviets, the Council of People’s Commissars is entirely responsible to the Central Executive Committee,” and at the same time it was recognized that that the Council of People's Commissars has the right not only to carry out “measures to combat counter-revolution,” but also to adopt “legislative acts, as well as orders of major general political importance,” submitting the latter “for consideration and approval of the Central Executive Committee.” Thus, the Council of People's Commissars became the center of lawmaking in the first months of Soviet power. A number of decrees, for example, the decrees “On compulsory training in the art of war”, “On the procedure for filling positions in the Workers’ and Peasants’ Red Army” and “On the period of service in the Red Army” (all - April 22, 1918). ), were issued not by the Council of People's Commissars, but by the All-Russian Central Executive Committee. Finally, some decrees - “On donations” of May 20, 1918, Regulations on the revolutionary tribunal under the All-Russian Central Executive Committee of May 29, 1918, “On the organization and supply of the rural poor” of June 11, 1918 - were formalized as joint decisions of the All-Russian Central Executive Committee and SNK. Obviously, behind these fluctuations there was a search for the optimal mode of functioning of the Soviet state as a system.
Considered in their entirety, the decrees of the first months of Soviet power demonstrate the depth of the social upheavals that gripped Russian society in 1917.
Constitutions of the Soviet period
Next important step On the path to the formation of the Soviet state and the formalization of Soviet legislation, the adoption of the Constitution of the Russian Socialist Federative Soviet Republic began. The constitutional commission created by the All-Russian Central Executive Committee in April 1918, chaired by Ya. M. Sverdlov, considered three projects - “ General provisions Constitution of the RSFSR”, prepared by the Bolsheviks, “Draft Constitution of the Labor Republic”, put forward by the Socialist-Revolutionaries-maximalists, and “Basic principles of the Constitution”, developed by the jurist and psychoanalyst M. A. Reisner and embodying the radical anarcho-syndicalist views of the so-called left communists. Having discussed these documents, the commission, which was dominated by the Bolsheviks, spoke out in favor of the first draft, which, with some amendments, was approved by the V All-Russian Congress of Soviets on July 10, 1918 as the first constitution of the RSFSR.
The spread of Bolshevism to the outskirts of the former empire entailed the adoption of the following constitutions - the Soviet Socialist Republic of Belarus (February 1919), the Ukrainian Socialist Soviet Republic (March 1919), the Khorezm People's Soviet Republic (April 1920), the Far Eastern Republic (April 1921), Soviet Socialist Republic of Azerbaijan (May 1921), Bukhara People's Soviet Republic (September 1921), Socialist Soviet Republic of Armenia (February 1922), Socialist Soviet Republic of Georgia (March 1922), Transcaucasian the Socialist Federative Soviet Republic (December 1922), the Khorezm Socialist Soviet Republic (October 1923), and finally the first Constitution of the USSR (January 31, 1924). Not all of the listed constitutions were typically Soviet and were consistently socialist in nature. On the contrary, the Constitution of the Khorezm NSR of 1920 recognized private ownership of the means of production, waqf land tenure, religious education, Sharia courts and customary law, and the Constitution of the Far Eastern Republic spoke of a multi-structured economy and did not contain the term “council” (although the functions of the meetings of authorized representatives and the People’s Assembly of the Far Eastern Republic largely coincided with the functions of the councils, and the state was led not by the president, but by a collective body - the Government, elected by the People's Assembly in approximately the same way as the All-Russian Central Executive Committee was elected in the RSFSR). There was no complete identity between the constitutions of the republics declared socialist Soviet: Let’s say, in the Constitution of the RSFSR a fixed number of people’s commissariats was established (17), and in the Constitution of the Ukrainian SSR the question of the number of people’s commissars and the subjects of their jurisdiction was left to the discretion of the All-Ukrainian Central Executive Committee. Finally, the Constitution of the USSR of 1924 was not an original legislative act, but the incorporation of two documents - the Declaration on the Formation of the USSR, proclaimed in December 1922, and a significantly expanded version of the union treaty adopted at the same time. Such liberties were reflected, on the one hand, by the spontaneous nature of state building in the first years of Soviet power, and on the other, by the Bolsheviks’ desire to attract the largest possible number of supporters, especially in those regions where there was no possibility of establishing a new order solely by force. However, victory in the Civil War made such compromises unnecessary, buffer and puppet states were eliminated, and constitutions were brought to a common denominator.
The first wave of such legal unification swept in the second half of the 20s in connection with the adoption of the Union Constitution of 1924 and the national-state delimitation of Central Asia, the second - after the adoption of the “Stalinist” constitution of 1936, the third - in the late 70s , after the adoption of the constitution of 1977. At the same time, both the all-Union constitution was the basis for the constitutions of the union republics, and the constitutions of the union republics became the basis for the constitutions of the autonomous republics. The result of the process was the emergence of a set of almost identical documents and complete unification of the country's legal framework.
Constitutions were developed not only by the Soviet government and its satellite regimes. As examples of non-Bolshevik constitutions that appeared during the period Civil War on the territory of the future Soviet Union, one can note the Constitution (Statute on State Structure, Rights and Freedoms) of the Ukrainian People's Republic of April 29, 1918 and the Basic Laws of the All-Great Don Army, adopted by the Great Military Circle on September 15, 1918. As a rule, local state formations non-Bolshevik orientation ceased to exist before they managed to acquire their own legal system; however, the goal of a significant part of the white movements was not so much the establishment of a new order as the restoration of the old one, including the legislation of the Russian Empire, so that the legislative activity of the white government was often limited to a declaration on the restoration of tsarist laws. At the same time, such rulemaking is of great interest as a phenomenon of social psychology and evidence of a certain legal culture.
The most important feature of Soviet constitutions is their propaganda orientation. A kind of rally tone was already set in the first constitution of the RSFSR in 1918, which included the Declaration of the Rights of the Working and Exploited People, written by V.I. Lenin and approved by the Third Congress of Soviets. This declaration (and therefore the Constitution of 1918) stated in particular (Article 4):
Expressing an unshakable determination to snatch humanity from the clutches of financial capital and imperialism, which have covered the earth with blood in this most criminal of all wars, the Third All-Russian Congress of Soviets fully joins the policy pursued by the Soviet government of breaking secret treaties and organizing the broadest fraternization with the workers and peasants of the armies currently at war with each other. and achieving, at all costs, by revolutionary measures, a democratic peace of working people without annexations and indemnities, on the basis of the free self-determination of nations.
In some fragments the style of the legislator rose to Church Slavonicism:
The Russian Socialist Federative Soviet Republic recognizes labor as the duty of all citizens of the Republic and proclaims the slogan: “He who does not work, let him not eat”(v. 18.) [emphasis added. – D.D.].
At the same time, the constitution itself was proclaimed as a temporary document, adopted for a transitional period and designed to contribute ... to the establishment of the dictatorship of the urban and rural proletariat and the poor peasantry in the form of a powerful All-Russian Soviet power in order to completely suppress the bourgeoisie, eliminate the exploitation of man by man and establish socialism, in which there would be no divisions into classes, nor state power(v. 9).
This positioning of the document, repeated in the Constitution of the RSFSR of 1925, was influenced by the Marxist theory about the withering away of the state on the path to communism.
The texts of the all-Union Constitution of 1924 and the republican constitutions created after its adoption were kept in a stricter tone - the slogans remained only in the Declaration on the Formation of the Union of Soviet Socialist Republics:
Since formation Soviet republics The states of the world split into two camps: the camp of capitalism and the camp of socialism. There, in the camp of capitalism, there is national enmity and inequality, colonial slavery and chauvinism, national oppression and pogroms, imperialist atrocities and wars.
Here, in the camp of socialism, there is mutual trust and peace, national freedom and equality, peaceful coexistence and fraternal cooperation of peoples.
On the contrary, the “Stalinist” constitution of 1936 returned some slogans (with stylistic changes) and even expanded their number:
Labor in the USSR is a duty and a matter of honor for every citizen capable of working, according to the principle “He who does not work, neither shall he eat.” The USSR implements the principle of socialism “From each according to his ability, to each according to his work” (Article 12).
Finally, the “Brezhnev” constitution of 1977 contained a detailed description of the “Fundamentals of the social system and policy of the USSR” (Articles 1–32), where the already familiar slogans were accompanied by detailed explanations:
The source of growth, social wealth, well-being of the people and everyone Soviet man is the labor of Soviet people free from exploitation.
In accordance with the principle of socialism “From each according to his ability, to each according to his work,” the state exercises control over the measure of labor and consumption. It determines the amount of tax on income subject to tax.
Socially useful work and its results determine a person’s position in society. The state, combining material and moral incentives, encouraging innovation and a creative attitude to work, contributes to the transformation of labor into the first vital need of every Soviet person (Article 14).
Under certain conditions, articles of this kind turned into a formidable weapon of reprisal against undesirables. In particular, words about workers and eaters served as a formal basis for the criminalization of the so-called parasitism, i.e., in fact, deriving livelihood from any activity other than officially permitted. It is obvious, however, that the inclusion of such aphorisms in the constitution pursued not only and not so much formal legal as propaganda objectives.
Periodic changes in Soviet constitutions also indicate the ideological orientation of the latter. A change in the fundamental law is not an extraordinary event, but, as a rule, it occurs against the background of political upheavals - wars, the establishment and fall of dictatorships, government crises, etc. In the Soviet Union and its republics, constitutions were changed in a situation of relative stability, signaling no a new stage in the development of society, but a gradual evolution of its ideological basis. If the content of the constitutions of the 1920s was determined by romantic ideas of world revolution, then the constitution of 1936 recorded the “successful construction of socialism” in one particular country. Against this background, the gap between the next major turn in the general line of the party, associated with the Khrushchev thaw, and the next constitutional reform, which took place only at the end of the 1970s, in a completely different political situation, is somewhat surprising. However, the constitutional commission, the result of whose work was the adoption of the all-Union Constitution of 1977, was convened by the Supreme Soviet of the USSR back in April 1962, and its long work is connected, on the one hand, with political changes caused by the resignation of N. S. Khrushchev, and on the other hand, with the general decline in the efficiency of the Soviet state apparatus in the second half of the 1960s - 1970s.
In general, the constitutions of the period 1917–1991 represent clear evidence of the ideological vicissitudes that accompanied the evolution of Soviet society and the state from the moment of its emergence to its collapse.
Codes and “Fundamentals of Legislation”
The next important type of Soviet legislation was codes , which combined legal provisions that operated in a particular area. The development of codes designed to establish new social relations began almost immediately after the Bolsheviks came to power, so the first document in this series - the Code of Laws on Civil Status, Marriage, Family and Guardianship Law - was approved by the All-Russian Central Executive Committee on September 16, 1918. The second became the Labor Code, adopted in December of the same year. The choice of areas that should have been rebuilt in the first place is indicative: maximum simplicity in the field of family relations and the protection of workers' rights constituted the fundamental and carefully worked out points of the program of the Russian Social Democrats.
In the 1920s, work on the codes continued. In 1922, the Criminal, Civil and Land Codes of the RSFSR appeared, a little later - the new Code of Labor Laws, the Code of Family and Marriage, the Forestry Code, the Customs Code, etc. In 1926, the Criminal Code of the RSFSR, which in its first edition turned out to be too short and therefore little applicable in practice, it was redesigned. It is noteworthy that if, when developing the foundations of family, labor or land law, the Bolsheviks aimed to break with the legal principles of tsarist times, which were labeled “bourgeois,” then the norms of criminal and civil law were widely borrowed from previous legislation and the experience of Western countries. This was due to both the lack of necessary experience among legislators and the complexity of regulating such legal relations. An appeal to the legal experience of the “old regime”, and in some situations to customary law, was inevitable in such a situation.
An important feature of Soviet codification was that the legislator had to not only form the foundations of the new socialist law, but also adapt these latter to the characteristics of the union state. The Union Treaty of 1922 and the Constitution of the USSR of 1924 (Article 1) established that civil and criminal legislation, regulation of labor relations, land management, land use, exploitation of natural resources, healthcare and education constitute the joint competence of the USSR and individual republics, with the center defines the “fundamentals” and “general principles”, and the republics carry out these general principles in life. The implementation of such provisions gave rise to a specific type of legislative sources called "Fundamentals of Legislation" , which had the character of unique framework laws, the norms of which were developed and specified by the codes of the union republics. For example, the “Basic Principles of the Criminal Legislation of the USSR and Union Republics” approved by the Resolution of the Presidium of the Central Executive Committee of the USSR of October 31, 1924 contained only a general part that determined the limits of action of Soviet criminal legislation, statute of limitations, main types of punishments, aggravating or mitigating circumstances and etc. Specific elements of crimes were introduced in special parts of the criminal codes of the union republics, which could vary depending on local conditions. So, if, for example, “counter-revolutionary activity” in the Criminal Code of the RSFSR of 1926 was described by Art. 58, then in the Criminal Code of the Ukrainian SSR, adopted in 1927, the same corpus delicti was defined in Art. 54. In addition to the already mentioned “Basic principles of criminal legislation”, in 1924 the “Fundamentals of the judicial system” and “Fundamentals of criminal proceedings” were approved, and in 1928 the “General principles of land use and land management” appeared. The appearance of each of these documents presupposed the publication of the corresponding codes of the Union republics, which ensured both the unity of the country's legal framework and the adaptation of all-Union legislation to local conditions.
The codes of the 1920s bore the imprint of the time of their creation. In criminal law, a class approach was proclaimed, and the involvement of the accused “in the past or present in the class of persons exploiting the labor of others” was considered as an aggravating circumstance, and belonging to the working class or working peasantry as a mitigating circumstance. However, in civil law The specific features of the “new economic policy” were embodied, including the recognition of three types of property - state (nationalized and municipalized), cooperative and private, and private ownership could include:
...non-municipalized buildings, commercial enterprises, industrial enterprises, employing hired workers in an amount not exceeding that provided for by special laws; tools and means of production, money, securities and other valuables, including gold and silver coin and foreign currency, household items, household items and personal consumption, goods the sale of which is not prohibited by law, and any property that has not been withdrawn from private circulation.
On the contrary, the concepts of collective farm-cooperative and personal property that were important for Soviet law in later times were absent in the codes of the 1920s. These features did not serve as an obstacle either to the curtailment of NEP at the end of the 1920s, or to the collectivization of agriculture, or to the industrialization of industry: new forms of ownership and methods of management received legal registration by introducing amendments to the codes. In turn, in the late 1950s and early 1960s, large-scale legal reform was carried out. First, new “Fundamentals of Legislation” were released, and then new republican codes in all areas of law. From the new Soviet codes, norms that became odious during the years of the cult of personality were removed (primarily the notorious Article 58), and provisions were included that regulated new legal relations and responded to new types of offenses (for example, Article 88 appeared in the Criminal Code of the RSFSR in 1960 , punishable for “violation of rules on foreign exchange transactions”). In addition, scientific and technological progress has made it urgent to adopt new codes in such areas as subsoil use and exploitation of natural resources, air transport, etc.
Perestroika and the associated change in the socio-economic structure caused adjustments to existing codes, mainly through amendments. In this adjusted form, Soviet codes continued to operate until the adoption of modern Russian laws.
Laws. Resolutions of the Presidium of the Central Election Commission and decrees of the Presidium of the Supreme Council
If the codes determined the general principles of functioning of an entire area of social life at once, then laws introduced or abolished certain measures and practices - compulsory military service, passport regime and so-called propiska, changes in the size and procedure for calculating pensions, individual labor activities, holding rallies and meetings, etc. If in the first years of Soviet power many legislative acts of such kind were called “decree” (although the terms “decree” and “order” were also used), then in the Constitution of 1936 the term “decree” was no longer used. As part of the general rejection of the revolutionary romance of the 20s, the word “law”, familiar to Russian ears, was returned.
Researchers note a decline in the intensity of Soviet lawmaking that occurred in the 1940s–1970s: according to S.V. Zhuravlev’s calculations, “over forty years (1938–1977),” only about 150 laws appeared, i.e., “three times less<…>than in the previous 20 years, from 1917 to 1937." To some extent, such dynamics can be explained by the stabilization of the social structure and the legal institutions that embody it, but another interpretation of this process is more likely - the growing influence of the bureaucratic apparatus, which increased the importance of various kinds of by-laws that replaced legislation as such. It seems that the reduction in the intensity of legislative work became the embodiment of the general bureaucratization of the Soviet state, caused by its fundamental lack of competitiveness.
Soviet legislation went through several stages in its development. The spontaneous revolutionary lawmaking of the first years of Soviet power gave way to the systematic formation of the legislative framework of the “country of victorious socialism,” and the socio-political and ideological changes of the Khrushchev “thaw” made it necessary to revise the existing legal provisions. At the same time, the logic of lawmaking was dictated, on the one hand, by the demands of life, and on the other, by the peculiarities of Soviet power as a political structure. A systematic study of Soviet legislation as a historical phenomenon clearly demonstrates the level of efficiency of the state that gave birth to it.
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From the book Medieval Iceland by Boyer RegisVarieties of sagas exist different kinds saga They are classified according to the topics they present. For a long time it was believed that there was something like a chronological sequence, that is, the types of sagas successively replaced each other. However, this point of view
LEGAL TECHNOLOGY AS AN INDEPENDENT DISCIPLINE. SUBJECT, OBJECT, TASKS AND GOALS OF LEGAL TECHNIQUE.
acts (PA).
Until today, UT has not been taught as a
academic disciplines are independent, but were only an integral part
general theory of state and law. In modern times arose
the need to systematize scientific knowledge about
preparation and adoption of laws and their application in practice.
UT is a set of principles, rules, means, techniques and
methods of adequate expression of a certain
regulatory content in the form of legal text
The subject of STC is the means, rules, techniques required for
here is a list of rules on what to do
project developers to prepare high-quality
project and ensure its successful completion in
law-making body.
All methods m/b are separated
1) methods for preparing the concept of legal acts
2) methods of designing legal norms and their mechanisms
implementation in specific relationships
3)techniques for preparing the text of legal acts
4) advantages of making forecasts of action effectiveness
projected norms of law
UT object - the text of the regulatory document, in relation to
the intellectual efforts of the legislator are applied.
The goal of UT is optimal regulation of social relations,
ensuring accessibility, simplicity, visibility of legal
material, achieving perfection and effectiveness of legal
1) ensuring unambiguous and adequate grammatical
interpretation of the newly created legal act as a whole.
2) ensuring clarity and accessibility of the language of the act
3) achieving its logical consistency as in
internal structure, and in connection with other acts
4) preventing whitespace and collisions
5) accuracy and certainty of the legal form used:
formulations, expressions, individual terms
2. The relationship between the concepts of “legal technique” and “legislative technique”. Types of legal technology: pluralism of opinions.
Legal technology is a set of requirements (means, rules,
techniques) required for the form and content of legal
acts (PA).
Legislative technology is the most important component (along with
law enforcement technology) legal technology. This is the totality
means, rules and techniques for development, design,
In legal science, the opinion is already firmly rooted that UT is not
chaotic set of rules. It is divided into types. Exist
There are different opinions on how many and what types of legal technology to highlight.
Moreover, no one denies the mandatory nature of the legislative
disagreements. Mainly disputes are about
classification criterion.
such a criterion as types of legal acts. In their opinion, UT
is divided into 2 types: legislative (law-making) and
technique of individual acts. This classification is too
general to accept it.
Another method of classification by type of legal work. N,
distinguish rule-making, law enforcement,
legal explanatory, systematization and doctrinal
legal technology.
The main criterion for classification can be the stages
(stages) of legal regulation (lawmaking, action
rights, implementation of rights). However, sometimes the main stages
legal regulation is “overgrown” with auxiliary and
additional stages when it is necessary to carry out
other legal actions
Thus, there are 6 types of UT:
1) law-making technique
3) technology for systematizing NA
4) interpretive technique
5) law enforcement technology
6) law enforcement technology
Development of legal technology in pre-revolutionary Russia
The beginning of the development of UT can be considered the treaties between Rus' and Byzantium (911, 944). These agreements are characterized by some elements of UT, in particular: 1) a certain language for drawing up these agreements - including the rules of the Greek language. After the word “law” there were Greek adjectives. or Russian, which is typical for the Latin language. 2) the presence of basic legal terms (for example, “liability for theft”).
Elements of UT in Russian Pravda: 1) Normative construction of sentences in the text, from which one can see a hypothesis, disposition, sanction. 2) Entering the title of the articles (however, they are not clear enough). 3) Terminological dictionaries appear (debt, purchase, sale, plaintiff).
Features of Sudebnikov 1497, 1550: 1) Division into articles with headings (however, there was a repetition of headings and their content in a number of articles). 2) the text was divided into chapters, which were numbered. 3) In the Code of Laws of 1550, the division of legal norms occurred according to thematic focus.
In the Council Code of 1649: 1) division into 25 chapters, numbered in Roman numerals. 2) The chapters had their own headings and the number of articles in them (however, the numbering was not continuous, but separately for each chapter). 3) the number of articles in chapters varies, from one to 287 articles. 4) The Code contains a Preamble, but it is voluminous (up to one chapter) and difficult to understand. 5) In a rule of law, the elements (hypothesis, disposition, sanction) are more clearly visible, and the hypothesis is separated from the disposition or sanction by “:” or the pronoun “that”. 6) The language of presentation of the material has become more understandable. 7) Legal terminology is being improved, new terms appear, cat. used in modern jurisprudence (bailiff, duty).
Under Peter 1, an attempt was made to systematize the disparate norms that existed along with the Code of Laws of 1649. Also, a similar attempt was made by Catherine 2, which led to: 1) gaps in the laws; 2) the emergence of difficulties in using laws issued in different time and their abundance; 3) incorrect interpretation of laws; 4) the discrepancy between the old laws and the new reality.
A new codification of Russian legislation was carried out only under Nicholas 1; a special commission was created under the leadership of Speransky in 1826, as a result of which. there was a publication full Assembly laws of the Russian Empire in 1830 It included all the laws issued with the Code of 1649 in chronological order (30,920 acts, including 45 volumes). Subsequently, two more systematizations were carried out and as a result, in 1833, 15 volumes of the Code of Laws of the Russian Empire were prepared. They were officially recognized as the only ones. The new elements of the UT here were: 1) Continuous numbering of articles in each volume, which was inconvenient and in the subsequent Code of 1842, continuous numbering was carried out for each act separately, as it is today. 2) Alphabetical, chronological and comparative instructions to the Code appear.
The new technique of UT was used in the Code of 1845, in the cat. The General Part appears, i.e. general legislative provisions are highlighted. After the creation of a new representative body, the State Duma, interest in UT is increasing. During this period (after 1905), the scientific substantiation of the need for UT began, scientific works Nevolin "Encyclopedia of Law", Rozhdestvensky "Encyclopedia of Law", Speransky "Guide to the Knowledge of Laws".
4. Legal technology in the Soviet period, its peculiarities.
During this period, they talked more about ST, although this concept covered not only the requirements for legal acts, but also for legal acts.
Features of UT of the Soviet period:
1) reproduction of normative regulations (at the republican level they accepted the provisions of all-Union legislation, developing and clarifying them).
2) the main Codes and current laws were characterized by complex articles, in which. normative provisions of a general nature and non-normative ones were combined.
During this period, they talked more about ST, although this concept covered not only the requirements for legal acts, but also for legal acts.
Features of UT of the Soviet period:
1) reproduction of normative regulations (at the republican level they accepted the provisions of all-Union legislation, developing and clarifying them).
2) the main Codes and current laws were characterized by complex articles, in which. normative provisions of a general nature and non-normative ones were combined.
3) in order to save space and uniformity of presentation normative material, the articles contained not one normative instruction, but several (up to 5-8 normative provisions).
4) Characteristic is the special technique of the UT-construction, i.e. samples or standard schemes in which normative regulations (for example, the corpus delicti) are presented.
5) highlighting the general part in the codified NA, and when compiling articles of the General Part, they used the “referral” technique. All normative regulations of the General Part applied to all articles of the Special Part, representing a single whole and acted in unity.
Works by: Kerimov, Tolstoy, Pigolkin, Kovachev and others.
5.Foreign experience in legal technology
UT in foreign law has a definition. Features that relate to the content and structure of acts. For example, the Belgian Constitution consists of 9 parts, indicated by Roman numerals, and each part consists of articles. Articles can either have divisions or be divided into paragraphs. The Greek Constitution: Parts 1, 2, and 3 have their own headings. Within the parts they are named sections and articles, the section is divided into separate norms.
The Spanish Constitution has a preamble, an introductory section.
A peculiar construction of the US Constitution, in a cat. In addition to the preamble, there are articles with Roman and Arabic numerals. In the United States, there is no uniform regulation of labor technology and they are issued most often on the basis of legislative and judicial practice. The name and style of acts are arbitrary; the name of the act may be descriptive. The preamble is used to explain the reasons for the adoption of the act. In the codes of laws of the United States and states, the requirements for the desired coincidence of an article and one legal regulation are closed. In the state of New York, there is a “General Interpretation of Legislation” law, which provides definitions of special terms.
In Poland there is a government decree on the rules of legislative technology. Please note the requirements: sequence, arrangement of instructions in the structural parts of the structure, where the more general ones are followed by the more specific ones.
The requirements for agricultural machinery in the Federal Republic of Germany have been developed in great detail. The Federal Ministry of Justice has the function of checking draft laws of Art. compliance with their current law and uniformity of use of linguistic means.
6. Concept and types of legal acts
LEGAL ACT- an official written document that has binding force, adopted by an authorized subject of law, expressing authority, giving rise to certain legal consequences, creating a legal state and aimed at regulating public relations.
P.a. there are certain stable characteristics:
a) this writingdocument of a certain kind, having a special form of expressing the information contained in it. This form assumes: structuring the text of the act and its construction according to the rules of legal technology (chapters, articles, elements, norms, etc.); formulating rules of behavior of a long-term or one-time nature; normative language; use of specifically legal concepts and terms; compliance with the mandatory details inherent in each act;
b) has official character, which is manifested in its publication on behalf of an authority, organization or state;
c) publication P.a. strictly allowed withincompetencies the subject authorized to accept it;
d) has target orientation. It expresses social interests in concentrated form. An act can express the state will (if the act is issued on behalf of the state), the will of a social community (the population of a particular territory), the command of the government (if the act is issued by a state body), consent and equal partnership relations;
e) intended to regulate social relations.;
f) is generally binding;
Possible different classifications P.a. based on certain criteria.
According to legal form the following types of PA can be distinguished: a) the Constitution of the Russian Federation, the charter of a subject of the Russian Federation; 6) a law with subtypes - Federal Law, Federal Law, code, general (basic) principles, fundamentals of legislation, federal law on the ratification of an international treaty, federal law on amendments and changes to the Constitution of the Russian Federation, law of a constituent entity of the Russian Federation; c) resolution and other acts of legislative bodies; d) decree and order of the President of the Russian Federation, senior officials of the constituent entities of the Russian Federation; e) resolution, order and other acts of the governments of the Russian Federation and its constituent entities; f) departmental P.a. with subtypes (acts of federal ministries, state committees and other federal executive authorities, executive authorities of constituent entities of the Russian Federation); g) P.a. self-government with subtypes of acts of local self-government and acts based on the results of elections and referendums; h) local (corporate) acts; i) decisions of courts and regulatory authorities; j) public law contracts and agreements; k) programs and declarations; l) regulations and charters; m) international legal acts.
Based on their normative nature: . are divided into normative legal acts, i.e. PA, containing rules of law regulating a certain area of social relations, and individual legal acts that give rise to rights and obligations only for those subjects to whom they are addressed.
By design method act and giving it legal force: a) primary acts - laws, regulations, etc., which directly acquire legal force and are put into effect, and b) secondary (approved) acts, which include, for example, instructions approved by order minister, regulation approved by a resolution of the head of administration, etc.
7. Regulatory legal act- an official document of the established form, adopted (issued) within the competence of an authorized state body (official) or through a referendum in compliance with the procedure established by law, containing generally binding rules of behavior, designed for an indefinite number of persons and repeated application. A normative legal act is an act of lawmaking, which is adopted in a special order, by strictly defined subjects and contains a rule of law.
According to the order of adoption and legal force, normative legal acts are divided into laws and by-laws.
Enforcement act- an official expression of the will of an authorized state body or official aimed at individual legal regulation of public relations.
Law enforcement acts are the result of law enforcement activities.
They can appear in the form of decrees, instructions, commands, sentences, court decisions, instructions, various kinds of orders and other acts. Among law enforcement acts, the most complex in structure and content are court decisions.
Signs of a law enforcement act:
1. Subordinate character . Law enforcement acts are issued on the basis of legal norms and must comply with them.
2. State-imperious character . Law enforcement acts are issued on behalf of the state by authorized state bodies and officials within their competence. The state controls the execution of the law enforcement act, using coercive measures if necessary. On the other hand, there is the possibility of appealing (protesting) law enforcement acts to a court or a higher government body.
4. Individual legal nature . Law enforcement acts contain specific instructions designed for one-time use in a specific factual situation. They are always addressed to specific addressees and are limited to one-time use.
5. Formalized nature . We are talking about strict compliance with the stipulated stages and procedures of preparation, examination, and issuance of law enforcement acts. Each act is issued in a specific form, has an appropriate name and mandatory details.
Interpretative act (act of interpretation of law) is a legal act that contains an explanation of the meaning of legal norms.
Features of acts of interpretation of law:
They represent an explanation of the meaning of legal norms;
They do not have independent meaning and act in unity with the norms that they interpret;
They are not a form or source of law.
Interpretative acts are divided into:
Depending on the types of official interpretation - into acts of normative (authentic and legal) and casual interpretation;
Depending on the bodies giving the interpretation - on acts of state authorities, management, judicial and prosecutorial bodies, etc.;
Depending on the subject of legal regulation - on acts of interpretation of criminal law, administrative, civil, etc.;
Depending on the nature - on material and procedural acts;
Depending on the form - decrees, resolutions, orders, instructions, etc.;
Depending on the legal nature, interpretive acts of lawmaking and interpretative acts of law enforcement are distinguished
8. Law- this is a normative act with the highest legal force, adopted in a special manner by the highest representative body of state power or directly by the people and regulating the most important social relations. According to their legal force and purpose, laws are divided into constitutional(consolidate the foundations of the social and state system and determine the basic legal principles of all current legislation) and ordinary(adopted on the basis of constitutional laws and regulate various aspects of society). Among the latter, codified and current ones stand out. According to the nature of their action, laws are divided into permanent, temporary and emergency. In the Russian Federation, as in any federal state, federal laws and laws of constituent entities apply. The current laws form a system of legislation. The highest legal force presupposes that no other legal act should contradict the law and can neither cancel nor change it; but the law can repeal or change any other legal act. The content of the law forms primary norms, which in some cases receive further specification and development in by-laws.
MODEL LAW - a legislative act of a standard nature, containing normative recommendations, as well as options for possible legal solutions (sometimes explanations of possible options, examples). The creation of m.z. is practiced in the USA (for states) and in the CIS (for member states).
M.Z., approved by the legislative body, acquire the character of an official legislative recommendation. Addressee M.Z. is the national legislative body, which has the right to use it in any form. It is possible to approve the act in its entirety as a national-state law, partial approval with additions, changes, or use as a guideline, as a basis for future legislative work. M.z. may be left without attention
9. Subordinate legal acts are law-making acts of competent authorities that are based on the law and do not contradict it. By-laws have less legal force than laws; they are based on the legal force of laws and cannot oppose them. Effective regulation of social relations occurs when common interests are consistent with individual interests. By-laws are precisely intended to specify the basic fundamental provisions of laws in relation to the uniqueness of various individual interests.
1. General by-laws. These are normative legal acts of general competence which apply to all persons within the territory of the country. Since their legal force and significance in the system of legal regulation, general by-laws follow the laws. Through by-laws, state management of society is carried out, economic, social and other issues of public life are coordinated.
General by-laws include rule-making instructions of the highest executive authorities. Depending on the form of government, they are expressed in two types of by-laws.
Regulatory decrees of the President. In the system of by-laws, they have the highest legal force and are issued on the basis and in development of laws. The president's powers in law-making activities are determined by the country's constitution or special constitutional laws. They regulate the most diverse aspects of life related to public administration.
Government decree. These are by-laws adopted in the context of presidential decrees and are designed, if necessary, to regulate more detailed issues of state management of the economy, social construction, healthcare, etc.
2. Local by-laws. These are regulatory legal acts of local representative and executive authorities. They are published by local representative authorities and local self-government bodies. The effect of these acts is limited to the territory subject to them. Regulatory regulations of local government authorities and management are mandatory for all persons living in a given territory. These can be regulatory decisions or resolutions of the council, municipality, mayor's office, prefect on a variety of local issues.
3. Gazette normative legal acts(orders, instructions). In a number of countries, certain structural units of government bodies (ministries, departments) are also vested with law-making functions, which are delegated by the legislature, the president or the government. These are normative legal acts of general effect, but they apply only to a limited sphere of public relations (customs, banking, transport, state credit, and others).
4. Intra-organizational by-laws. These are regulations and legal acts that are issued by various organizations to regulate their internal issues and apply to members of these organizations. Within the framework defined by acts of supreme legal force, intra-organizational regulations regulate a wide variety of relations that arise in the specific activities of government agencies, enterprises, military units and other organizations.
E.O. CHINARYAN, Candidate of Legal Sciences, Associate Professor of the Department of Family and Juvenile Law, Russian State Social University e-mail: [email protected] The study of historical experience and the specifics of the development of legislation at different stages of the existence of domestic statehood and the legal system allows us to note some of their features and trace the dynamics of improving domestic legislative technology, as well as identify the main stages of its development.
UDC 340.113.1(091)
Magazine pages: 153-157
E.O. CHINARYAN,
Candidate of Legal Sciences, Associate Professor of the Department of Family and Juvenile Law of the Russian State Social University e-mail: berendeevaeo @mail.ru
The study of historical experience and the specifics of the development of legislation at different stages of the existence of domestic statehood and the legal system allows us to note some of their features and trace the dynamics of improving domestic legislative technology, as well as identify the main stages of its development.
Key words: legislative technique, lawmaking, theory and practice of lawmaking.
Stages of Development of the National Lawmaking Methods
Chinarjan E.
Research of historical experience and features of development of the legal system at various stages of the national statehood and legal framework allows to define and follow the dynamics of improvement of lawmaking methods, as well as to identify the main stages of development of the national legislative methods.
Keywords: legislative equipment, right creativity, theory and practice of lawmaking.
Understanding the features of the development of modern legislative technology should be based on a study of historical experience and the specifics of its development throughout the existence of domestic statehood and the legal system, in which the following main stages can be distinguished.
The first stage is the formation and development of the domestic tradition in legislative technology. This is a fairly long period, which takes several centuries (XII-XVII centuries). It is characterized by the dominance of customary law and the gradual formation of domestic law, as well as the archaic technique of systematization of law, which consisted mainly in giving written form to the norms of customary law, uniting disparate norms of law, judicial practice and custom within the framework of a systematized act. This is exactly how the legislative monuments of that time were compiled - Russian Pravda, Pskov Judicial Charter, Code of Laws of 1497, Code of Laws of 1550, etc. Analyzing the monuments of Russian law, which are considered the most typical for a particular era in terms of means, techniques and rules preparation of legislative acts, it is necessary to note some of their features, which allow us to trace the dynamics of improving legislative technology.
Firstly, the relative isolation of the Russian state from Western European states was determined by the fact that the Russian legal system experienced very little influence from the legal systems of these states, which could not but contribute to the development of original approaches to the legislative technique of normative acts. 19th-century historian and jurist K.D. Kavelin in the article “A Look at the Legal Life of Ancient Rus'” wrote: “An amazing thing! On one continent, separated by several nations, Europe and Russia lived for many centuries, alienating each other, as if deliberately avoiding any close contact. Europe knew nothing about us and did not want to know; we didn't want to know anything about Europe. There were meetings, but rare, somewhat official, distrustful, too strained to bring about a real rapprochement.”
Secondly, from the 11th century, complex processes of the formation of the national Russian language began, which were completed around the end of the seventeenth century. The formation of the national language took place under the conditions of mutual influence of the two written languages that existed at that time: Old Russian (a folk-literary language) and Church Slavonic (the language of high literature, or high style). As a result of the interaction of these two languages, experts believe, by the 14th century the official business style of the Russian language began to take shape - the so-called command language, with the help of which “legal and administrative practice begins to develop written documentation in the modern sense of the word.”
Thirdly, none of the legal monuments of the 11th -12th centuries. has not reached us in its original, primordial form. We have only those sources that have survived only in lists, the earliest of which date from the thirteenth to fourteenth centuries. The oldest known list of Russian Truth is currently considered to be the list included in the Novgorod helmsman, dating back to 1282. Therefore, the language and technique of the most ancient legal monuments can only be judged by lists that were influenced by the legislative technology of their time.
The second stage is the active interaction of domestic tradition and Western European legislative technology (XVIII - mid-XIX centuries). During this period, the arsenal of domestic developers of regulatory legal acts was replenished with a number of new legislative techniques. Regulatory acts begin to indicate the year, month, and date of their signing, which, given the significant increase in the number regulatory documents was of great practical importance. For the first time, interpretations to articles appeared that served as notes and were designed to relieve the text of the normative act and make it easier to perceive.
The third stage is associated with the beginning of bourgeois reforms in the 60-70s of the 19th century and continued until the establishment of the first domestic parliament in 1906. The judicial reform of 1864, which for the first time created an independent court in Russia, marked a sharp turn in the entire legal life of Russia, primarily in the very understanding of law, which could not but affect the methods of developing legal problems: the servile description of existing laws and regulations is replaced by their critical analysis . This contributed to the intensification of legal research, including in the field of legislative technology. Thus, if in the post-reform years, when presenting certain issues of legislative technology, the concepts of “legal dogma”, “legal hermeneutics” and “legal mathematics” were used, reflecting still very contradictory ideas about them, then at the final stage of the stage under consideration, the concept of “legislative technology” was formed.
The fourth stage lasted from 1907 to 1917 and was associated with the beginning of the activity of the State Duma as a representative body endowed with legislative powers. The Duma's lawmaking contributed to the development of legislative technology and increased interest in its theoretical and practical aspects. During this period, the rules for using the methods of structuring the texts of normative acts that had developed before the creation of the State Duma changed significantly, which was reflected in greater laconicism of the titles of acts, unification of the design of their operative part, and a moderate number of notes to articles and appendices. The structural organization of legislative texts acquired more and more originality in comparison with acts of executive authorities, in which numerous shortcomings associated with the technique of their structuring were not eliminated so decisively.
The fifth stage - the Soviet development of legislative technology - can be divided into several periods.
The first period - 1920-40s - the creation of the first Soviet regulations.
There have not yet been any serious works devoted to legislative technology in the first years of Soviet power, in fact scientific activity there was no time to study. IN AND. Lenin, P.I. Stuchka, D.I. Kursky and other statesmen (some of them were also lawyers by training) took part in the creation of the first Soviet codes. In a speech at the next party congress in 1922, V.I. Lenin formulated the tasks for improving legislative work: “We must ensure that the All-Russian Central Executive Committee works more energetically, meets in sessions that should be longer. Sessions should discuss draft laws that are submitted to the Council of People's Commissars without mandatory need. It’s better to postpone it and let local workers think carefully and demand more strictly from the drafters of laws, which is not being done here.”
The degree of simplicity and clarity of a normative act was determined depending on who it was intended for and at what educational and cultural level the users of the law were. In the 1930s and 40s, laws served as propaganda for the new social system, people's power and its policies, although compared with the first years of Soviet power, the tendency towards declarativeness began to be gradually overcome.
Considering the typical techniques of legislative technology of the Soviet period, it should be noted that its system consisted of rules, techniques and methods characteristic of sectoral legislation. Depending on membership in industries, on the hierarchical relationship of acts, their types, content, on the political and ideological state of society, various methods of constructing regulations and legislative acts in general were used, and their forms were modified.
The next bright period in the development of legislative technology in our country was the 1950-70s. The renewal of Soviet legislation began, which caused increased interest in the problems of legislative technology. The works of scientists I.L. were devoted to issues of legislative technology. Braude, L.I. Dembo, D.A. Kerimova, M.I. Kovaleva, A.S. Pigolkina, R.M. Hamrakulova and others. Most of these works examined individual issues of legislative technology, less often - the problems of a complex of such issues were studied in relation to branches of law. There are practically no works entirely devoted to legislative technology that would address issues of the form of legislation within any one branch of law.
A significant place in the study of the concept of legislative technology belongs to the works of A.A. Ushakova. He dealt with the problems of defining legislative technology, its method and methodological foundations, the language of the law and the concept of legislative stylistics.
In the abstract of the candidate's dissertation A.A. Ushakov expressed his understanding of legislative technology; in his opinion, “all questions related to the general doctrine of the legislative system, its structure, its construction are resolved by a special area of legal knowledge. Let’s call it legislative technique.”
During this period, a serious attempt was made to theoretically substantiate the so-called legislative style. The language of the law stands out as a special style of speech.
The problems of the language of law and legislative stylistics are a topic whose solution is possible only by merging two sciences - jurisprudence and linguistics. Stylistics is a branch of linguistics. This science appeared in the late 1950s, and its definition was first formulated by Academician V.V. Vinogradov.
Among the studies of legislative technology of this period, the works of A.S. are of great interest. Pigolkina. He defined legislative technique as “a system of norm-making practice-based and theoretically grounded rules and techniques for creating draft normative acts that are perfect and appropriate in form and structure, ensuring the most complete and accurate compliance of the form of normative regulations with their content, accessibility, simplicity and easy visibility of normative material, comprehensive coverage of regulated issues.” This definition absorbed all the most valuable works of its predecessors; for the first time, a definition of legislative technique as a system of rules and techniques was given, although earlier this idea was expressed in the work “Legislative Technique”. A.S. Pigolkin believed that rules are developed both by practice and theory. In his definition, he emphasized the role of legislative technology in solving problems of the relationship between the form and content of law, and listed the main requirements that apply to the form of laws.
The next period in the development of the concept of “legislative technology” is the 70-90s of the twentieth century. At this time, previous knowledge is seriously concretized and supplemented and new theoretical developments are carried out. Special mention should be made of the works of S.S. Alekseeva, M.I. Kovaleva, D.A. Kovacheva, D.A. Kerimova, A.S. Pigolkina, Yu.A. Tikhomirova, A.A. Ushakova. A serious debate is unfolding over the definition of the concept of “legislative technique”. S.S. Alekseev defines legislative technique as follows: “These are the means and techniques used in the development and systematization of normative acts. The most significant significance here belongs to the technical means and techniques used in codification (codification technology).” From this definition it follows that the author refers to legislative technology as methods and means of constructing laws, as well as means and methods of codification. This is a fairly broad interpretation, since it includes such a concept as codification.
Attention should be paid to the fact that some scientists, for example, I.L. Braude, A.A. Ushakov, R.M. Hamrakulov, identify the concepts of legal and legislative technology. S.S. Alekseev, considering the theoretical problems of legal technology, noted that it consists of legislative (law-making), codification technology and the technology of individual legal acts. In his opinion, legal technology includes procedural (procedural) actions related to the use of technical means and techniques, as well as organizational and technical issues of preparing draft regulations, the procedure for amending them, the procedure for their repeal, etc. On the same page A.S. also stood in position. Pigolkin, who argued that “legislative technique, being an integral part of legal technique, can be briefly defined as a set of rules and techniques for preparing draft regulations.” It follows from this that legislative and legal technology, although two similar concepts, are different and one includes the other.
The concept of legislative style continues to be developed. Both lawyers and linguists deal with this issue. Most researchers identify an independent style used in the office work of government agencies, in the economic sphere, in diplomatic and legal relations. This style is used when formulating normative acts that are part of the book and written fund of the literary language. It is called differently: official-rhetorical, business, official-business, official-documentary. “At the same time, if the colloquial and everyday style performs the function of communication, the artistic and journalistic style performs the function of influence, then the official documentary style, together with the scientific one, performs the function of message.”
When presenting legislative thought in the form of a normative act, language and means are used that are developed specifically for the sphere of lawmaking, that is, used primarily or even exclusively in this area, which gives grounds to distinguish its legislative variety from the official business style. This is due to the fact that the volume of the legislative style is quite large, it is distinguished by special social tasks facing the law, a specific way of displaying the subject and is characterized by special compositional and stylistic means, and a special vocabulary.
The immediate subject of this style is not the language of laws in general, but the language of laws as a special style of speech. Legislative stylistics should reflect the development of the language of laws, its historical fate, place in the system of styles of the modern literary language, connection with other styles, meaning in society and place in the literary language. Having an applied purpose, legislative stylistics will help the legislator assess the suitability and appropriateness of using certain words and grammatical structures to express legislative thought, taking into account semantic and stylistic overtones, detect, correct, and prevent language errors in the activities of the legislator and all those who deal with the law . Legislative stylistics should develop recommendations of a practical nature, define the concept and features of speech stylistics of a legal norm. Ultimately, its essence comes down to the study of the technique of using words to express legal categories and concepts, the ability of the legislator to use linguistic means in legal construction.
Legislative stylistics is a section of legislative technology, as it studies technical means and techniques with the help of which the legislator solves the problem of verbal expression of legal norms.
Analyzing the regulations of the 1970-90s from the point of view of legislative technology, it can be noted that the overload of Soviet regulations with ideological and political vocabulary is on the decline. The preamble begins to play a socio-political role in a legislative act. With the de-ideologization of public life in the USSR (second half of the 80s - 1991), the preambles of regulatory acts gradually lose their ideological and propaganda functions, their provisions focus primarily on the goals of adopting a specific law and the subject of its regulation.
Thus, the Soviet period became a time of active creative development of the theoretical foundations and practical aspects of legislative technology. During the existence of Soviet power, both the attitude towards laws and the ways of formalizing regulatory material in them changed. The initial denial of law and the prospects for its development in a socialist society was replaced by the formation of the concept of socialist law and the development of its theoretical foundations. The language of legislation was gradually improved, issues of the development of legislative technology were actively developed in the legal doctrine, and its basic concepts were formulated. In general, the approaches to legislative technology and its theoretical foundations proposed by scientists of the Soviet period remain largely unchanged today and are used in the process of lawmaking.
Bibliography
1 Kavelin K.D. Our mental structure: articles on the philosophy of Russian history and culture. - M., 1989. P. 11.
2 See: Vvedenskaya L.A., Chervinsky P.P. Theory and practice of Russian speech. - Rostov n/d, 1997. pp. 155-157.
3 Kortava T.V. Moscow official language of the 17th century as a special type of written language. - M., 1998. P. 16.
4 See: Ivanov V.V. Historical grammar of the Russian language. 2nd ed. - M., 1983. P. 26.
5 Lenin V.I. Full collection op. T. 33. P. 276.
6 See: Dembo L.I. Problems of codification of Soviet law. - L., 1947. No. 4; Braude I.L. Essays on legislative technology. - M., 1958; Ivanov V.I. Legislative technology and new criminal legislation // Soviet state and law. 1959. No. 9; Kovalev M.I. On the technology of criminal legislation // Jurisprudence. 1962. No. 3; Pigolkin A.S. Improving legislative technology // Soviet state and law. 1966. No. 1; Ignatov A.N. Improving the Special Part of the Criminal Code of the RSFSR // Ibid. 1972. No. 5; Kuznetsova N.F. The effectiveness of criminal law norms and the language of the law // Socialist legality. 1973. No. 9.
7 See: Ushakov A.A. On the concept of legal technology and its main problems // Uchen. zap. Perm. state University (legal sciences). 1967. T. 19. Issue. 5; On the method of legal technology (on the principles and techniques of study) // Ibid. 1963. No. 104; Methodological foundations and legislative period in Soviet lawmaking // Ibid. 1966. No. 147; On the codification of Soviet legislation // Ibid. 1969. T. 14. Book. 4. Part 1; Essays on Soviet legislative stylistics. - Perm, 1967.
8 Ushakov A.A. The most important codification works in the first phase of the development of the Soviet state: abstract of thesis. dis. ...cand. legal Sci. - L., 1953. P. 21.
9 Pigolkin A.S. Preparation of draft regulations: organization and methodology. - M., 1966. P. 10.
10 See: Legislative technology / ed. YES. Kerimova. - L., 1965. P. 16.
11 Alekseev S.S. Problems of the theory of law: a course of lectures: in 2 volumes - Sverdlovsk, 1973. T. 2. P. 143.
12 See Alekseev S.S. Decree. op. T. 2. P. 143.
13 Pigolkin A.S. Preparation of projects... P. 5-6.
14 Gorshkov A.I. Theoretical foundations of the history of the Russian literary language. - M., 1983. P. 63.
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