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PRACTICAL AND METHODOLOGICAL MATERIALS
Legal review as a condition to ensure quality of the regulatory legal act
DOI: http://dx.doi.org/10.14420/en.2015.1.7
Yuri Aleksandrovich Tikhomirov, Doctor of Legal Sciences, Professor, Honoured Worker of Science of the Russian Federation, senior research officer of the Institute of Legislation and Comparative Law under the government of the Russian Federation, corresponding member of the International Academy of Comparative Law
The author considers in sequence the concept, subject-matter and object of the state expertise; rights and obligations of the ordering party and the executor of the expertise. The author propones a classification of anti-corruption expertise of regulatory legal acts and drafts of regulatory legal acts; gives detailed description of criteria to be applied for anti-corruption analysis. Special attention is given to the deficiencies of the contemporary regulatory legal act that serve as corruptionogenic factors.
expert examination, expertise, regulatory legal act, anticorruption expertise, state expertise, independent expertise, corruptionogenic factors.
An important condition of securing a high quality of a law or another regulatory legal act is that it should undergo an expert examination - economic, financial, juridical, environmental, technical, etc. The Model Law «About State Expertise» adopted at the twentieth plenary meeting of Interparliamentary Assembly of the CIS Member Nations (IPA CIS) (Decree № 20-7 dated 7 December 2002) aids the understanding of the nature and mechanism of the expertise.
The state expertise is an activity performed on a contract basis by authorised organisations (expert organisations) and physical persons (experts) by order of the state, connected with conducting research, making analysis and assessment of a particular object (subject of the expertise), accompanied by preparing and executing conclusions, recommendations (expert opinion) on the subject-matter of the expertise. The expert opinion is of advisory nature.
According to the said Law, expert activity is classified as research activity. Therefore the expert opinion and other results obtained in the course of carrying out the state expertise fall into the category of research activity results.
The subject-matter of the state expertise presents facts and circumstances of certain kind that are examined by means of applying special knowledge and skills.
The object of the state expertise is the information, authenticity of which is
Abstract.
Keywords:
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duly verified, as well as physical objects and other material carriers that contain information about the subject-matter of the expertise and other initial data, which is necessary to solve problems of the expertise, and presented to the expert organisation or an expert for the purpose of carrying out the state expertise in the order established by the present Law.
The Law specifies that objects of the state expertise include:
- projects and programmes subject to approval by authorised state bodies;
- drafts of international treaties and agreements, introduced in accordance with the established procedure for documents subject to signing and ratification (denunciation);
- drafts of laws and other normative acts, being developed by order of civil servants, agencies and organisations, vested with the right of the legislative initiative;
- research and technology and investment programmes and projects, being developed on the initiative of state agencies;
- state orders, being placed on competition basis;
- projects and programmes of capital construction of residential objects and commercial and industrial premises, when it is proposed that they should be financed at the expense of the state budget (funds from the state budget system).
The Law secures the following rights of the Party ordering the state expertise:
- to declare necessity of carrying out the state expertise, including that of repeated and supplementary state expertise;
- to appoint the state expertise, determine objects and the subject-matter of the state expertise, its theme, participants of the expert process, time constraints for carrying it out;
- to pose a question about selection, disqualification or substitution of the expert organisation (expert), obtain from the expert organisation (expert) explanations and consultations relating to preparing and carrying out the expert examination;
- to receive information about the course of carrying out the state expertise at all the stages of the expert process, give the expert organisation (expert) written or spoken explanations, comments, recommendations as of carrying out the state expertise;
- to become acquainted with intermediate and final conclusions of the state expertise;
- to use the expert opinion and other results of the expert examination in their practice, if obligatoriness of such use is not prescribed by the legislation;
- to create registers of expert organisations and experts (data bases), expert opinions and other results of expert activities;
- to determine the degree of confidentiality for expert assignments;
- to depute alienated powers of the Party ordering the expertise to their representatives for the representatives to perform certain actions on behalf of the Party ordering the expertise; such delegation of powers shall take place in manner required by the legislation or the contractual agreement on carrying out the state expertise.
The Party ordering the state expertise is obliged:
- to appoint the state expertise in cases stipulated by the Law;
- to submit to the expertise relevant objects and accompanying materials,
and in cases stipulated by the Law also conclusions of the earlier expertise;
- to notify the Executor of the expertise about all known risks, connected with the object of the expertise;
- to finance carrying out the expert activity in full measure;
- to submit to the expert organisation and (or) expert required materials, calculations, data, additional information, which concern the object of the expertise; such transfer of information and materials shall be performed within the time-limits specified by the contractual agreement on carrying out the state expertise or the assignment;
- to use recommendations of the expertise in its activity, when making decisions on objects of the expertise;
- to provide confidentiality of the expert assignment and anonymity of the expert in cases stipulated by legislation and the contractual agreement on carrying out the state expertise;
- to compensate the moral and financial damage incurred by its wrongful
acts.
It is established that the Executor of the state expertise has the following
rights:
- to select methods and means of carrying out the state expertise, if not stipulated otherwise by the Law or the contractual agreement on carrying out the state expertise;
- to become acquainted with materials related to the subject-matter and object of the state expertise, including materials that present commercial, official or state secrets, to take abstracts from them and copy them; such work with materials shall be performed in accordance with the established order;
- to have a free access to state databases, other state channels of information on questions connected with the object of the state expertise;
- to make an application about including additional objects of the expertise and other information, in accordance with the established order to perform independent collection of additional information related to the subject-matter and the object of the state expertise upon authorisation or with proper notification of the Party ordering the expertise;
- to take part in carrying out the expert analysis and assessment of the objects of expertise at all stages of carrying out the state expertise;
- in the course of carrying out the state expertise to freely set forward opinions and judgements that contribute to achieving goals and objectives of the state expertise;
- to give explanations and make statements as of interpreting the expert opinion or other results of the expertise;
- in accordance with the established order, to appeal against actions of persons, who inhibit the expert process.
Rights and obligations of the expert arise by virtue of the concluded contractual agreement on carrying out the state expertise, and of the rules for internal labour order applied in the expert organisation and (or) the labour contract concluded with the expert, if the state expertise is carried out by the expert in the order of an official assignment. The expert bears responsibility for committing a breach of legislation about the state expertise, non-compliance with the terms of the contractual agreement on carrying out the state expertise, and in certain
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cases stipulated by the legislation, there can be instituted criminal proceedings against the expert for giving a patently false opinion.
We will put emphasis on criteria of anticorruption analysis of laws and other legal acts.
In accordance with the Decree «On Anticorruption Expertise of Regulatory Legal Acts and Drafts of Regulatory Legal Acts», on 26 February 2010 the Government of the Russian Federation enacted the Rules of carrying out the anticorruption expert examination of regulatory legal acts and drafts of regulatory legal acts and the corresponding Procedure.
The said Rules determine the procedure of the anticorruption expert examination of regulatory legal acts and drafts of regulatory legal acts, which is performed by the Ministry of Justice of the Russian Federation, and of the independent anticorruption examination of regulatory legal acts and drafts of regulatory legal acts, which is performed by entities specified below in order to detect the corruptionogenic factors, which the legal acts and drafts can contain, and to subsequently eliminate them.
The Ministry of Justice of the Russian Federation conducts the anticorruption expertise in regard to the following acts and drafts:
a) drafts of Federal Laws, drafts of the Russian Federation Presidential Edicts, and drafts of the Russian Federation Government Regulations that are developed by federal agencies of the executive branch, other state agencies and organisations - in the course of carrying out their legal examination;
b) drafts of concepts, and specifications for drafts of Federal Laws, drafts of official Opinions and Conclusions related to draft Federal Laws - in the course of carrying out their legal examination;
c) regulatory legal acts of federal agencies of the executive branch, other state agencies and organisations that affect rights, freedoms and responsibilities of man and citizen, identify the legal status of organisations or have an interdepartmental character, and also Statutes of municipal formations and municipal legal acts about introduction of alterations into Statutes of municipal formations - in the course of their state registration;
d) regulatory legal acts of constituents of the Russian Federation - in the course of monitoring their application.
Results of the anticorruption examination are set forth in the correspondent Conclusion of the Ministry of Justice of the Russian Federation in the ratified by the Ministry form.
Independent anticorruption examination is carried out by legal entities and physical persons accredited by the Ministry of Justice of the Russian Federation as independent experts authorised to conduct anticorruption expertise of regulatory legal acts and drafts of normative expertise of legal acts, and also drafts of regulatory legal acts, ratified by the Russian Federation Government Regulation № 96 dated 26 February 2010.
The Procedure is to ensure that procuracy of the Russian Federation, federal agencies of the executive branch, agencies, organisations and their executive officers can carry out the anticorruption examination of regulatory legal acts and drafts of regulatory legal acts for the purpose of revealing corruptionogenic factors and their subsequent elimination.
In order to provide justification, objectivity and checkability of results of the
anticorruption examination, it is necessary to carry out examination of each norm of the regulatory legal act or each provision of the draft regulatory legal act.
Below there are listed the factors considered to be corruptionogenic factors that give law enforcement bodies unreasonably broad discretionary powers or possibility to apply exceptions from general rules without any justification:
a) breadth of discretionary powers, i.e. absence or uncertainty of time constraints, conditions or grounds for making the decision, existence of duplicated powers in bodies of state or local authority (their executive officers);
b) definition of competence by formula «has the right» , i.e. a facultative creating a possibility for public authorities or local authorities (their executive officers) to perform actions directed at citizens and organisations;
c) selective change of the scope of right, i.e. a possibility to indefinably state exceptions from the general order for citizens and organisations at the sole discretion of public authorities or local authorities (their executive officers);
d) excessive freedom of sublegislative rule-making, i.e. existence of blanket and reference rules, resulting in adopting subordinate acts that encroach upon competence of the public authority or local authority, which adopted the primary regulatory legal act;
e) adoption of a regulatory legal act beyond one's competence, i.e. breach of competence of public authorities or local authorities (their executive officers) in the course of adopting regulatory legal acts;
f) filling up legislative gaps by means of subordinate acts in the absence of legislative delegation of appropriate powers - declaring by subordinate acts compulsory for all rules of conduct in the absence of the corresponding law;
g) absence or incompleteness of administrative procedures, i.e. absence of procedures that prescribe public authorities or local authorities (their executive officers) to perform certain actions, or absence of an integral element in such a procedure;
h) refusal to use competitive (auction) procedures, i.e. securing the administrative procedure in granting the right (benefit).
In the list of corruptionogenic factors that contain ambiguous, difficult of accomplishment and (or) burdensome requirements to citizens and organisations there are included the following factors:
a) existence of excessively severe requirements to right-holders, which they shall fulfill to exercise their right, i.e. establishing ambiguous, difficult of accomplishment and burdensome requirements to citizens and organisations;
b) misuse of the right of the applicant by public authorities or local authorities (their executive officers), i.e. absence of clear regulation with regard to rights of citizens and organisations;
c) legal and linguistic uncertainty, i.e. use of unconsolidated, ambiguous terms and categories of estimative character.
Knowledge and correct application of procedures specified for carrying out an expert examination of the law serves as a guarantee of high quality of the law. However, in practice the value of these procedures is underestimated, some kinds of expertise (for example, public expertise) are not carried out.
References:
1. The Model Law «O gosudarstvennoi ekspertize» [«About State Expertise»]
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adopted at the twentieth plenary meeting of Interparliamentary Assembly of the CIS Member Nations (IPA CIS) (Decree № 20-7 dated 7 December 2002).
2. The Russian Federation Government Regulation № 96 dated 26 February 2010 «Ob antikorrupcionoi ekspertize normativnyh pravovyh aktov i proektov normativnyh pravovyh aktov» [«On Anticorruption Expertise of Regulatory Legal Acts and Drafts of Regulatory Legal Acts»].
3. The Order of the Ministry of Justice of the Russian Federation dated 8 September 2011 № 310 «Ob organizacii raboty po provedeniyu antikorrupcionnoi ekspertizy normativnyh pravovyh aktov, proektov normativnyh pravovyh aktov i inyh dokumentov strukturnymi podrazdeleniyami Ministerstva yusticii Rossiiskoi Federacii» [«On Organisation of Work in the Field of Carrying out Anticorruption Expertise of Regulatory Legal Acts, Drafts of Regulatory Legal Acts and Other Documents by Organisation Departments of the Ministry of Justice of the Russian Federation»].
4. Boshno S.V. Theory of the Normative Legal Act in Practice // Russian law: Theory and Practice. - 2009. - № 1.
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8. Shishparenok O.N Rol' pravovoi ekspertizy v obespechenii pravovogo kachestva proektov zakonov sub'ektov Rossiiskoi Federacii // Akademicheskii yuridicheskii jurnal. - 2012. - № 2 [Role of Legal Expertise in Securing Legal Quality of Draft Laws in Constituents of the Russian Federation // Academic Law Magazine].
9. Vlasov I.S. Pravovye akty: antikorrupcionnyi analiz. Nauchno-prakticheskoe posobie. - Moscow, 2010 [Legal Acts: Anticorruption Analysis. Research And Practical Guide].
10. Voronina Yu.I. Antikorrupcionnaya ekspertiza normativnyh pravovyh aktov kak sredstvo protivodeistviya korrupcii v sovremennoi Rossii: teoretiko-pravovoi aspekt // Vestnik Tomskogo gosudarstvennogo universiteta. - 2012. - № 3 [Anticorruption Expertise of Regulatory Legal Acts as the Means of Countering Corruption in Contemporary Russia: the Aspect of Theory and Law // Herald of Tomsk State University].
