Law and Modern States, 2015, No. 2


                LAW
                AND MODERN
                STATES




Comparative Studies Journal







2015 / No 2

                 LAW AND MODERN STATES
                 Comparative Studies Journal


FOUNDER: Consulting and Legal Protection of People Foundation

ISSN 2307-3306

DOI: http://dx.doi.Org/10.14420/en.2015.2











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EDITORIAL BOARD:


        JURISPRUDENCE

Svetlana Boshno, Doctor of Legal Sciences, Professor (Moscow) Elena Vinogradova, Doctor of Legal Sciences, Professor (St. Petersburg) Marina Davydova, Doctor of Legal Sciences, Professor (Volgograd) Ekaterina Dogadailo, Doctor of Legal Sciences, Professor (Moscow) Nataliya Mamitova, Doctor of Legal Sciences, Professor (Moscow) Marina Markhgeim, Doctor of Legal Sciences, Professor (Rostov-on-Don) Olga Tsybulevskaya, Doctor of Legal Sciences, Professor (Saratov)

        ECONOMICS

Olga Belousova, Doctor of Economics, Professor (Moscow)
Anatoly Doctorovich, Doctor of Economics, Professor ( Moscow)
Bogdan Zbyshko, Doctor of economic sciences, professor ( Moscow)

        POLITICAL SCIENCES

Valery Bakushev, Doctor of Political Sciences , Professor ( Moscow) Aleksey Kononov, Doctor of Political Sciences , Professor ( Moscow) Alevtina Shevchenko, Doctor of Political Sciences, Professor (Moscow)

        PHILOSOPHY

Andrey Vassoevich, Doctor of Philosophical Sciences, Ph.D (Economics), Professor (St. Petersburg)
Kadyrbech Delokarov, Doctor of Philosophical Sciences, Professor, Honored Science Worker of Russian Federation (Moscow)
Galina Komissarova, Doctor of Philosophical Sciences, professor

        SOCIOLOGY

Elena Nazarova, Doctor of Sociological Sciences, Professor (Moscow)

        PSYCHOLOGY

Galina Vasyuta, Ph.D., associate professor (Volgograd)

        FOREIGN MEMBERS OF THE EDITORIAL BOARD

William E. Butler, John Edward Fowler Distinguished Professor of Law Dickinson School of Law, Pennsylvania State University (USA)
William E. Pomeranz, Doctor of Legal Sciences, Ph. D., Deputy Director Kennan Institute (USA)
Valery Rybalkin, Doctor of Philology, Professor Kiev National University, Head of Division of National Academy of Sciences (Ukraine)
Abulfas Guseinov, Doctor of Legal Sciences, Professor Baku State University (Azerbaijan)
Jenny M.T. Hardjatno, Doctor, Professor University of Indonesia, Director of Center of European Studies University of Indonesia, Jakarta (Indonesia)

            CONTENT


JURISPRUDENCE (12.00.00)
LEGISLATION
Svetlana Boshno THE LAW ON NORMATIVE LEGAL ACTS: PAST, PRESENT AND PROSPECTS (DOI: http://dx.doi.Org/10.14420/en.2015.2.1)........................6
D. M. Demina, A. M. Mikheyeva, Z. P. Tebuyeva, A. A. Karmalita, V. A. Pashkov, K. A. Lebedenko, A. V. Artyushin, S. V. Chertoryzhskiy, U. I. Zakirova, V. Kh. Bytdayeva, O. A. Podgrushnaya, V. V. Shirshikov ROUNDTABLE ON THE LEGAL REGULATION OF THE SYSTEM OF REGULATORY LEGAL ACTS AND RUSSIAN LAWS IN THE DRAFT FEDERAL LAW “ON REGULATORY LEGAL ACTS IN THE RUSSIAN FEDERATION” (DOI: http://dx.doi.org/10.14420/en.2015.2.2).................................20

CONSTITUTIONAL BASES
Vladimir Zubenko CONSTITUTIONAL RIGHT TO FAMILY LIFE WITHIN PENAL INSTITUTIONS AND GUARANTEES OF IMPLEMENTATION THEREOF (DOI: http://dx.doi.org/10.14420/en.2015.2.3).................................28
Liliya Travina, Anastasiya Loginova COMPARATIVE LEGAL STUDY ON THE ACTIVITIES OF THE COUNCIL FOR MUTUAL ECONOMIC ASSISTANCE, THE EUROPEAN ECONOMIC UNION AND THE EURASIAN ECONOMIC UNION (DOI: http://dx.doi.org/10.14420/en.2015.2.4).................................41

LAW-MAKING
Aleksandr Krasavin USING JURIDICAL FRAMEWORK IN LAWMAKING FOR SOCIAL AND TECHNICAL SPHERES (DOI: http://dx.doi.org/10.14420/en.2015.1.5)...........53
Natalya SokolovaTRANSFORMATION of RULES of LEGISLATIVE TECHNIQUE into ANTICORRUPTION EXPERTISE (DOI: http://dx.doi.org/10.14420/en.2015.2.6)........70

     ANTI-CORRUPTION POLICY. THE ANTI-CORRUPTION LEGAL EDUCATION Natalia Mamitova KEY FOCUS AREAS OF THE NATIONAL ANTI-CORRUPTION POLICY OF THE RUSSIAN FEDERATION
(DOI:      http://dx.doi.org/10.14420/en.2015.2.7)............................78
Andrey Vasilchenko METHOD OF LECTURING TO THE SPECIALISTS OF THE INTERNAL AFFAIRS AGENCIES OF THE RUSSIAN FEDERATION ON “THE LEGAL FUNDAMENTALS OF FIGHTING CORRUPTION IN THE SYSTEM OF INTERNAL AFFAIRS AGENCIES» (DOI: http://dx.doi.org/10.14420/en.2015.2.8)...............82

COMPARATIVE LEGAL RESEARCHDEVELOPMENT OF ELECTRONIC
Nurtas Kusherov DEVELOPMENT OF ELECTRONIC GOVERNMENT IN KAZAKHSTAN
(DOI: http://dx.doi.org/10.14420/en.2015.2.9)........................86


        ECONOMIC SCIENCES (08.00.00)

Viktor Reutov, Igor Zinovjev PROBLEMS OF INTERPRETATION AND STUDY of ECONOMIC CRIME in RUSSIA (DOI: http://dx.doi.org/10.14420/en.2015.2.10)..........91

            JURISPRUDENCE (12.00.00)



                    LEGISLATION

                    The law on normative legal acts: past, present and prospects

DOI: http://dx.doi.Org/10.14420/en.2015.2.1

Svetlana Boshno, Doctor of Legal Sciences, Professor, Head of Political Science and Law Department of the Russian Presidential Academy of National Economy and Public Administration, e-mail: boshno@yandex.ru.

Abstract.           The draft law on normative legal acts is a subject of discussion of the
                    scientific community, policy makers and other interested parties. The article analyzes the main provisions of the draft law “On normative legal acts in the Russian Federation” for stipulating in it summaries of judicial practice and enforcement, scientific research and the needs of the law-making activities. Quantitative and qualitative methods, as well as historical and specialized legal research methods were used in preparing the article. Development of the draft law by the Ministry of Justice of Russia, allows hope to enact a law that will help to stabilize the legal system, legislation and lawmaking. It is necessary a qualitative improvement of the draft at the stage of its discussion before the official introduction to the legislative body: clarification of the definition of the normative legal act, document types, the subjects of lawmaking, systematization, responsibilities of lawmaking bodies.
Keywords:           normative acts, local acts, acts of corporations, hierarchy of normative
                    acts, the dissolution of the legislative body, systematization, incorporation, statues, consolidation, code, delegated lawmaking.

      The draft law on normative legal acts is one of the most anticipated. More than 20 years there is ongoing work on a draft law in the different scientific communities (Institute of Legislation and Comparative Law under the Government of the Russian Federation), public authorities (the Commission on the implementation of the constitutional powers of the Federation Council), there are individual initiatives. On December 26, 2014 the Ministry of Justice announced its own draft that attracted attention and became a new reason for discussion not only directly on the draft, but also in general about the concept and purpose of the theory of a normative legal act in lawmaking, law enforcement, legal system.

Svetlana Boshno. The law on normative legal acts: past,
present and prospects

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      In 1996, the first draft law on normative legal acts of the Russian Federation was adopted in the first reading by the State Duma. In 2004, the former version of the draft law was withdrawn from consideration for outdated content, which was predetermined by the eight-year break between the first and second readings.
      The end of the twentieth century was marked by a large number of initiatives in the thematic plane of lawmaking. Thus, Russian President introduced a draft law “On the procedure for adoption of federal constitutional laws and federal laws”, Rules of legislative technique, the law “On the Systematization and Codification of Normative Legal Acts”, the law “On the Language of Laws” (or “On the Legal Terms”) and others. This overview of the initiatives was prepared by Professor E.A.Lukyanova in 1999¹, for the past time, none of the mentioned projects has not become a law. Yet drawing somewhere optimisim we again are entering into a discussion on the new draft, after 18 years, and we look forward to seeing the maximum novelty and even groundwork for the future. Relevance of the draft is predetermined by the increasing number of laws% in 2014 year was adopted an absolute majority of the laws for the period of a new Russian statehood-558.
       Proposed at the end of 2014 by the Ministry of Justice¹ ² the project for discussion can hardly be called a synthetic, having absorbed the results of all previous developments, but to name it author’s is difficult, as according to Antiplagiat system, its novelty makes 20 %. What is important is the fact of existence of the will of the authorities towards the adoption of the “law on laws” as figuratively the law on normative legal acts is called. However, the draft is not a complex solution of urgent problems and a number of pressing issues that nurtured for decades, it did not answer.
      Diverse subject matter of legal regulation of the draft law. Draft 2014 has kept the main drawback of the first draft adopted by the State Duma in 1996, it is too voluminous and diverse subject of legal regulation. For consideration by the State Duma at the same time there were two drafts - “On Normative Legal Acts in the Russian Federation” and “On the Procedure for Adoption of Federal Constitutional and Federal Laws.” Their subjects overlapped, as the draft on normative acts interfered with the scope of the procedural sphere - law-making technology. The new draft law regulates not only normative legal acts, but law-making, legislative process, planning, overcoming collisions, implementation, monitoring, i.e. again a draft tries to cover too wide range of issues. It is not recommended by rules of legal technique to adopt laws with diverse subject of legal regulation, combining norms of substantive and procedural law. This greatly complicates the branch identification of the normative act, the formation of a single legal regime.
      It is not possible to consider all aspects of the draft, let us consider the conceptual issues of contest and the legal technique for its implementation. The author’s work on the theory of forms of law, in particular the normative legal acts

¹ Lukyanova E.A. Law on laws//Legislation. - 1999. - № 11.

² http://regulation.gov.ru/project/21982.html

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constitute the methodological foundation of this article¹.
      The law on normative legal acts is designed to address a number of known issues: features of normative legal act, types, hierarchy, systematization. We are waiting for certainty, unambiguity from the law. However, it is the certainty of the draft law that is not clear.
      The concept of normative legal act. Definition of normative legal act is central to the law. This is what is expected from it in the first place. Since the legislator has not formulated any definition, there is a competition of definitions of different origin. State Duma in bylaw -Ordinance of Chamber-in 1996 year formulated the following definition: “normative legal act is a written official document adopted (issued) in a certain form by a law making body within its competence, and submitted to establish, amend or repeal legal provisions. In turn, under the legal norm it is understood obligatory state injunction of permanent or temporary nature, designed for repeated use”¹ ². Due to the fact, that the definition is given in the Ordinance of the Federal Assembly³, it could not become the undisputed source of law. However, it is used actively to resolve important issues of lawmaking and law enforcement in the system of the state authorities.
      Thus, the Russian Justice Ministry officially points out that during preparation of normative legal acts it is recommended to use the given Ordinance of the State Duma.
      Supreme Court of the Russian Federation identified the following essential features of a normative legal act: 1) published in the prescribed manner by an authorized body of the government, local authority or official; 2) contains legal provisions (rules of conduct); 3) is required for an indefinite number of persons; 4) is designed for repeated use; 5) aims at regulating social relations or a change or termination of existing relationships⁴. Thus, this approach is crucial for the system of courts of general jurisdiction.
      The most actively a concept of normative legal act is studied in the theory of law. However, the doctrine as a form of law is not recognized by domestic legal system in general, and is underestimated by judicial practice. The provisions set forth in the scientific works even in very reputable researchers, are not binding for the court. If they are used, then they are used as an illustration, the proof of the correctness of the conclusions of the courts, and not as the basis for these findings.

¹ Boshno S.V. Codification//Law and modern states. 2014. № 2. P. 44-51; Boshno S.V. Interpretation of the rule law// Law and modern states. 2013.No 4. P. 18-26; Boshno S.V. Normative legal act: development of indicators in law enforcement practice//Arbitration and civil litigation. 2009. №. 4.5, 6; Boshno S.V., Vasyuta G.G.System of normative legal acts: current state and development needs (according to the results of the socio-legal study)//Modern law. 2009. № 11. P. 11-18; Boshno S.V. Form of law: theoretical-legal research/Thesis for the degree of doctor of legal sciences. -М., 2005, etc.

² Resolution of the State Duma on November 11, 1996 № 781-II SD ”’On Appeal to the Constitutional Court of the Russian Federation”.

³ P. 2 the order of the Ministry of Justice of the Russian Federation from 05.45.2007 № 88 “On approval of the Clarification on the application of the rules of preparation of normative legal acts of the executive authorities and their state registration”.

⁴ P. 9 Resolution of the Plenum of the Supreme Court of 11.29.2007 № 48”’On the practice of court cases challenging the normative legal acts in whole or in part”.

Svetlana Boshno. The law on normative legal acts: past,
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      Some scientific definitions are passed to judges. For example, the dissenting opinion of the G.A.Gadzhiev, judge of the Constitutional Court, formulated on the basis of determining the application of the law, is formulated in the textbook of S.S. Alexeyev “General Theory of Law” (V. 1. - M., 1981)¹. But there is an opposite opinion about the book of the same author. So, canceling the decision of the lower court, the Supreme Court of the Russian Federation stated that a reference of the Court in the decision on the textbook “On the theory of state and law”, edited by S.S. Alexeyev, Doctor of Legal Sciences, is wrongful, because textbooks are not sources of law and by virtue of Art. 10 of CPC RSFSR cannot be applied directly by the court as justification for a judicial decision. Thus, the status of the doctrine as a form of Russian law did not work out. But the Roman-Germanic legal system also does not refer jurisprudence to a form of law. However, at the beginning of 2015 more than 400 judicial acts were rendered on the basis of Resolution of the Plenum of the Supreme Court of 2007 № 48¹ ².
      Elaborated by the executive and judicial branches of the government definitions are applied for a long time, respectively, they have been tested. However, the draft law proposes very truncated definition, shortness of which hurts its entirety. We believe that a comprehensive definition of the normative legal act on the basis of the mentioned pre-sources may be the following:
      A normative legal act is an official written document, adopted (issued) in a certain form by a body of state powers, local government or their official within its competence, and aimed at establishing, changing, enacting, terminating or suspending mandatory regulations that apply to an indefinite number of persons, designed for repeated use, and aimed at resolving social relations, modification or termination of existing legal relations.
      Approaches to systematization and style of presentation. Articles of the draft law on systematization partially are borrowed from the draft law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, published in 2013³. However, norms about the code of laws were not included in the draft law of Ministry of Justice from antecedent (Art.105 draft law of ILCL).
      Definitions are academic, but not functional. For example, on the text of draft law the incorporation is the systematization of acts in a certain order. However, such an established order does not exist. There are known chronological, thematic

¹ Definition of the Constitutional Court of the Russian Federation of 12.10.2002 № 284-D “On request of the Government of the Russian Federation on the constitutionality of the Resolution of the Government of the Russian Federation “On Approving the Procedure for determining fees and size limits for environmental pollution, waste disposal and other harmful effects”’ and Article 7 of the Federal Law “‘On introduction of the first part of the Tax Code of the Russian Federation”.

² For example, the Appeal of the Supreme Court of the Russian Federation of 02.03.2015 № APL14-696 “On upholding decisions of the Supreme Court of 11.07.2014 N AKPI14-1049, which dismissed an application for invalidation of the Resolution of the Russian Federation from Gosgortechnadzor of the RF of 06.06.2003№ 73 “On approval of the “Guidelines for the production of surveying works” and the Order of the GosGorTechNadzor of the RF of 06. 27.2003 № 145 “On introduction of the normative legal acts in the field of mineral resources.

³ http://www.izak.ru/system/files/zakonoproekt_o_normativnyh_pravovyh_aktah_0.pdf#1

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incorporations, there is possible selection of documents and on other grounds. Definition stated in the draft law does not bring us closer to its practical application.
      We believe that the draft law should answer the fundamental question of whether the incorporation and consolidation have an official character. Indeed, incorporation is a collection of documents. However, for the collection of normative acts completion is very important. We believe that such a collection of documents as “The Legislation of the Russian Federation” on the official portal of legal information www.pravo.gov.ru has a special mission, as it is intended to be complete. There is the problem of the full incorporation under the name of code of laws.
      In the theory of law and law-making practice, it has been accumulated a lot of questions to the consolidation. Connection of acts adopted at different times in the form of amendments to the original text, is informal in nature. The problem raises the number of amendments introduced in normative legal acts. It is noteworthy that originally reference legal bases in the beginning of the text of the current edition gave a list of acts that introduced amendments. Lists of two or three documents on the line turned into multipage texts. And now in the databases it is given a button, when clicked, opens a list. Button is turned into an external expression of the crisis of law making. In reference to the consolidated document in the database of ConsultantPlus it is stipulated that, the law has not been published in this edition. Accordingly, the connection of acts is carried out unofficially. The problem can be solved in two ways: by giving an official status to the consolidated text on the website www.pravo.gov.ru or legitimization of the “new edition” as a recognized form of lawmaking. However, none of the expected options is not reflected in the draft law.
      Of particular relevance is the issue of the preparation and enactment of code of laws, which in the new Russian history dates back to 1995¹, but has not yet been solved. In the USSR and RSFSR until 1995-1996, codes of laws were monitored. The loss of the official collection of the legislation in force creates inconvenience in allocating the necessary legal documents.
      Classification of normative legal acts. The draft law establishes a classification of legal acts, denying individual documents in the status of a normative. Discussion of the relationship between local and normative acts, as well as the possibility of local acts to be normative has lasted for decades¹ ². The draft law specifies that the local legal act may include the rule of law, but it is not a normative legal act. Moreover, it is assumed that the local act may be normative, but not for the purposes of the given law. Establishment of a term applied to only one law, and having a different meaning for other legal acts, has long been justifiably criticized in the literature on the judicial technique.

¹ Decree of the President of 02.06.1995 № 94 “On the preparation for the publication of the Code of Laws of the Russian Federation”.

² See. Samigullin V.K.Systematization of local norms of Soviet law. Questions of the theory. - M., Dis. Cand. jurid. Science, 1976; E.V.Karnaukhova Systematization of local normative legal acts of the Russian Federation: general characteristics and types: thesis abstract on competition of a scientific degree of candidate of legal sciences. - Tyumen, 2011, and others.

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       The draft law can stipulate the division of acts generated by science into normative and individual by the number of persons to whom it applies. Useful and necessary idea on a special status of acts of organizations and their differentiation from normative acts may be implemented by introducing in the draft law intra-organizational and normative ones, depending on what array it applies. If the act applies to members of the organization (e.g., employees of the organization) it is intra-organizational. If it applies to entities outside the organization or as specified in Art. 14 of the Constitution of the Russian Federation, it regulates the rights and freedoms of a person then it is normative. The Act that goes beyond the organization, affects the rights and freedoms of an indefinite number of persons, which makes it normative.
      Securing results of monitoring of law enforcement and judicial practice in the draft law. The draft law made practically no steps towards legislative legitimization of legal provisions, set forth in the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2007 № 48 “On the practice of court cases challenging the normative legal acts in whole or in part.” At the same time, the said Resolution formed practice-oriented approaches to the normative legal act, summarized defects of law-making practices and suggested ways to overcome them in the course of litigation. However, judicial practice is not a form of the Russian law. Accordingly, even objectively useful, but innovative in relation to the legislation, provisions of the Resolution of the Plenum of the Supreme Court, are not legitimate. The legislator should not invent new rules, he has to take ready-made solutions that have already been applied in practice.
      Technical and legal defects. The draft law, which establishes the requirements for other normative legal acts, must be a model of legal technique. It has no right to have defects. However, the draft law of the Ministry of Justice of the Russian Federation is not free of technical and editorial shortcomings, including corruptogenic factors. Among such violations are the following: uncertainty; going beyond the jurisdiction; definition of powers of public authority by the formula “has the right”, etc. For example, paragraph of the article 10 of the draft law stipulates that the President of the Russian Federation has the right to suspend the act of the highest official of the subject of the Russian Federation (head of the supreme executive body of state authority of the subject of the Russian Federation) as well as the effect of an act of the executive authorities of the subject of the Russian Federation in case of conflict of this act with the Constitution of the Russian Federation, federal laws, international obligations of the Russian Federation or the violations of the rights and freedoms of man and citizen until the decision of the appropriate court. Such permissions, in law enforcement relations in the draft law are many. However, certainty requires that the head of state acts imperative, not optional. The phrase “suspend” instead of “may suspend” makes the behavior of public authority axiomatic, predictable and certain. There are stylistic defects. A number of articles of the draft law are written in the style of a textbook on the theory of law. Articles of the law on systematization are bookish: consolidation, incorporation, codification. This is a story about the concept, and not its normative

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wording.
       Legalization of delegated lawmaking. The draft law in article 10 allows the President of the Russian Federation “to issue decrees filling the gaps in the regulation by federal laws. These decrees do not have the legal force of the federal law and remain in force until the adoption of the relevant federal laws. In the case of publication by the President of the Russian Federation of decrees filling the gaps in the regulation by federal laws, the President of the Russian Federation within one month submits to the State Duma of the Federal Assembly of the Russian Federation in the order of a legislative initiative relevant draft federal laws. The State Duma of the Federal Assembly of the Russian Federation is considering such drafts law as a priority”.
      This highly ornate wording actually introduces into the Russian legislation the institution of delegated lawmaking known to world practice. The Supreme Council of the USSR had a similar practice. Presidium of the Supreme Council of the USSR in the period between sessions of the Supreme Council had the right to make, if necessary, changes in existing legislation of the USSR and then submitted for approval at the next session of the representative body¹.
      The practice of the First President of the Russian Federation to issue decrees on the subject of legal regulation of the law has been evaluated by the Constitutional Court of the Russian Federation¹ ² and analyzed in V.O.Luchin’s book “Ukaznoe pravo v Rossii³” (Decree Law in Russia).
      The publication of the decree on the subject of the law does not correspond to the idea of the rule of law, the principle of separation of powers, which is aggravated by the lack of a clear time period for which the decree will replace the law. The high sense of duty of the modern Russian parliament, the refusal from a second reading allow to adopt laws actually in a few days. The right of the head of the state to make any draft law as a priority, in fact, is a special right of the President to participate in the legislative process. In such a situation, there are no grounds for adopting the temporary presidential act in order to speed up the lawmaking decision. However, if it is important in law -making to consider the criterion of efficiency, then the proposed solution is necessary.
      Saving disadvantages of the previous legal regulation. The draft law has affirmed the unsuccessful wording of the current legislation, scientifically substantiated complaints to which have accumulated for many years. Thus, since 1994 in the Federal Law of June 14,1994 № 5-FL “On the order of publication and coming into force federal constitutional laws, federal laws, acts of Chambers of the Federal Assembly”, it is stipulated that the date of adoption of the law is the date of its adoption by the State Duma in the final edition. Accumulated compelling scientific arguments and the results of the judicial practice clearly indicate failure

¹ Article 122 of the Constitution of the USSR, 1977.

² Decision of the Constitutional Court of the Russian Federation of 01.14.1992 № 1-P-U “On the case of constitutionality of the Decree of the President of the Russian Federation dated December 19, 1991 № 289 “On Education of the Ministry of Security and Internal Affairs of the Russian Federation”.

³ See. Luchin V.O. Decree law of Russia. - M., 1996.