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78DEVELOPMENT OF THE LEGAL SYSTEM
PRIVATE REGULATORY LEGAL ACTS IN THE RUSSIAN FEDERATION
DOI: http://dx.doi.org/10.14420/en.2014.24
Ruslan Magomedov, military serviceman, Process Engineer (quality control of oil products), Head of Fuel Supply Service of a military unit. Candidate for a Master's Degree of the Russian Presidential Academy of National Economy and Public Administration, e-mail: magomedov_r_u@bk.ru.
Abstract. Regulatory legal acts possess certain characteristics, the presence of
which determines their qualities. Historically the development of forms of law in the world followed various tracks, which led to appearance of several legal systems. That is why the notion and the meaning of regulatory legal acts in them does not always coincide. This article presents a notion of private regulatory legal acts and an issue of their presence in the Russian legal system. In that context a notion of regulatory legal act and its characteristics are studied.
Keywords: regulatory legal act, private regulatory legal act, public regulatory
legal act, normalization, servitude, private servitude, public servitude, juridical person, government corporations, public companies, the Bank of Russia.
1. It makes sense to construe historical evolution of a regulatory legal act as one of aspects of legal history as a whole. One can distinguish two tendencies of development of justice and law - European and Eastern ones. At that the East in this case is a civilizational notion, not a geographical one. I’m referring to countries which (excluding Sub-Saharan Africa) pertain to non-European, Oriental civilization1. Within the confines of each of them there are their own varieties of supremacy of justice (and law): in Europe - Anglo-Saxon and Romano-Germanic ones, in the East - Hindu, Islamic etc.
The doctrine and structure of justice was formed for the first time in the antique Rome. Having emerged, it had a noticeable bearing on development of apprehension of laws in the countries of Europe. European doctrine presupposes formal entrenchment of law in the system of legal sourses and presence of politico-
1 See: VasilyevL.S. History of religions of the East. - M., 1983.
legal safeguards of supremacy of law. At that supremacy of law is characteristic for countries with civil system of law.
Plurality of legal sources is the most brightly manifested as reflection of increasingly larger role and volume of regulatory development activities of bodies of executive power in such countries as the Great Britain and the USA.
In England decrees, orders, rules, instructions, ordinances, circulars, notifications pertain to regulatory acts. Plurality of legal sources is typical for the USA, as well. The variety of kinds of regulatory acts issued by bodies of executive power is supplemented with uncertainty of their correlation, regulation of uniform issues by heterogeneous regulatory acts.
Consequently, it should be noted here that in the Anglo-Saxon system any forms (sources) of law take regulatory form. In civil legal system, vice versa, plurality of legal sources is not accepted, law is the basic legal form.
In the USA public and private regulatory acts (bills) are distinguished. At that public (social) bills are understood to mean standard (within the meaning of civil legal system) draft laws presupposing affirmation of general, universal rules of conduct concerning social interest and needs of a whole people. Private bills act as legislative (legal) acts relating to activities of particular (private) persons -natural as well as legal, actually acting as enactments for individual application1.
In the countries with civil legal system one can separate regulatory and non-regulatory acts which are separated according to common (general legal) or individualized regulatory orientation. That gradation has an important juridical property - it generates a certain legal binding sense2.
At that at the present time the Russian Federation lacks a statutorily prescribed notion of a regulatory legal act. However in judicial practice3 the use of the notion established in Resolution of the State Duma of 11.11.1996 No 781-II GD4 gained a foothold.
In accordance with the Resolution, a regulatory legal act is a written official document accepted (published) in a certain form by a rule-making body within its competence and directed at establishment, alteration or cancellation of legal norms. So a presence in legal adjudgements of a legal act of rules of law (legal norms) is a ground for its reference to regulatory legal acts5. So for recognition of one or another legal document as a regulatory legal act it is necessary to expose that its constitutive provisions are by their legal content a legal norm: are characterized with general regulatory orientation, binding properties and
1 See: Political system of the USA: Current dimensions. - M.: Nauka, 2000.
2 Yurtayeva Ye.A. Normalization of legislation: modern modulations in the Russian law-making // Rus-
sian law magazine. - 2012. - No 11. - P. 28-39.
3 Legislation Bulletin of the Russian Federation. - 1996. - No 49. - Art. 5506.
4 See, for example: Decree of Presidium of the RF Supreme Arbitration Court of 14.11.2006 No
11253/06 «On reversal of the decision of the RF Supreme Arbitration Court of 31.05.2006 No 3894/06 and on termination of proceedings in case of contestation of provisions of 19th paragraph and second sentence of 20th paragraph of the letter of the RF Federal Tax Service of 13.01.2006 No MM-6-03/18@».
5 Boshno S.V. Regulatory legal act: development of attributes in law enforcement practice // Arbitration and civil procedure. - 2009. - No 4, 5, 6.
competent enactment.
Consequently, non-regulatory act shall be understood as a rule to mean an individually specified legal act adopted on organizational/management issues, for example, an order issued by an anti-monopoly authority, notification of a Federal Treasury body etc. A notion «decision» should be interpreted broadly, not only as a single document, for example, order of a judicial bailiff-executor, but also as other kinds of non-normative legal documents, such as information letters, methodological recommendations, explanations, resolutions in documents and others1.
2. Agencies of state power, as distinguished from theory, concede adoption of private regulatory legal acts. For example, the rule on public servitude2. According to the Article 23 of the Land Code of the Russian Federation, servitude can be public or private.
At that public servitude is established by law or other regulatory legal act of the Russian Federation, regulatory legal act of constituent entity of the Russian Federation, regulatory legal act of a body of local self-government on the condition that it is necessary for serving the interests of the state, local self-government or local population, without seizure of land plots. That is servitude is established in regard to specific land plot, impose on it certain limitations. It is obvious that such an act regulates legal relations with a private person.
An unusual legislative practice is creation of legal persons by way of adoption about them of a special Federal law (Bank of Russia, state corporations, state-owned companies).
Their main feature is that they are created in a narrow field and for the most part for performance of certain state powers. At that they are created on the ground of a Federal law3.
On the one part, specified acts just determine legal status of legal persons. On the other, they determine rights and responsibilies of a particular legal person. Some authors4 try to justify such regulation with the aid of division of legal persons into private and public ones, which contradicts to legislation in power.
Consequently, one can say that in modern Russian legal system private regulatory legal acts exist. Causes of their appearance are lying in considerable increase of number of regulatory acts. As a result there takes place a combination of rules of private and public law. At that the authors mix up dualism of law (its division in private and public one), and adoption of acts, some of which are
1 Arbitral Procedural Code of the Russian Federation. Article-by-article scientific practical commentary / V.A. Baranov, O.V. Belousov, A.N. Beresnev et al.; under gen. ed. of V.A. Gureev; sci. ed. V.V. Guschin. - M.: Library of «Rossiyskaya Gazeta», 2013. - Issue III-IV.
2 Semenikhin V.V. Land tax. 3rd ed. - M.: GrossMedia, ROSBUKH, 2013. - P. 99.
3 See, for example: Federal law of 10.07.2002 No 86-FZ «About the Central Bank of the Russian Federation (Bank of Russia)»; Federal law of 21.07.2007 No 185-FZ «About the Support Fund for the Reform of the Housing and Utilities Sector»; Federal law of 17.07.2009 No 145-FZ «About the state-owned company «Russian Highways» and about introduction of alterations in some legislative acts of the Russian Federation».
4 Sergeev V.V. About legal persons of public law // Banking law. - 2013. - No 2. - P. 3-15.
regulatory, contain rules of law, and others are not regulatory, are specified, and regulate rights and responsibilities of private persons. In accordance with classic division, public law contains norms intended to guarantee generally significant (public) interests, i.e. interests of society, state on the whole, and private law includes norms protecting interests of private persons and regulates relations between private persons. For that reason such division has no bearing on division of regulatory legal acts into regulatory and non-regulatory, public and private.
The undertaken study carries the following inference. Though theory and practice of statutory regulation in the Russian Federation excludes division of regulatory legal acts into private and public ones, actually the law-maker has long ago passed the limits of classical concept of a regulatory legal act. It is much easier
and quicker for the state bodies to adopt a regulatory legal act on a necessary
issue, than to go into details about the nature it will have and its consequences. For that reason many theoreticians as well get a wish to justify such actions. In the countries with Anglo-Saxon legal system the adoption of similar acts has long ago become a legislative tradition. In Russia a similar practice was introduced by the operative bodies of power. Consequently, law making should not be instantaneous and conformist. The adoption of new statutory regulations should be preceded by procedures of legal monitoring of operative rules, other modern legal technologies for assessment of legal practice. Besides, the Russian law needs perfection, search and consolidation of legal notions in the current legislation.
References
1. Land Code of the Russian Federation.
2. Federal law of 17.07.2009 No 145-FZ (ed. of 02.07.2013) «About the state-owned company «Russian Highways» and about introduction of alterations in some legislative acts of the Russian Federation».
3. Federal law of 21.07.2007 No 185-FZ «About the Support Fund for the Reform of the Housing and Utilities Sector».
4. Federal law of 10.07.2002 No 86-FZ «About the Central Bank of the Russian Federation (Bank of Russia)».
5. Resolution of the State Duma of the RF Federal Assembly of 11.11.1996 No 781-II GD «About the appeal to the Constitutional Court of the Russian Federation».
6. Decree of Presidium of the RF Supreme Arbitration Court of 14.11.2006 No 11253/06 «On reversal of the decision of the RF Supreme Arbitration Court of 31.05.2006 No 3894/06 and on termination of proceedings in case of contestation of provisions of 19th paragraph and second sentence of 20th paragraph of the letter of the RF Federal Tax Service of 13.01.2006 No MM-6-03/18@».
7. Arbitral Procedural Code of the Russian Federation. Article-by-article scientific practical commentary / V.A. Baranov, O.V. Belousov, A.N. Beresnev et al.; under gen. ed. of V.A. Gureev; sci. ed. V.V. Guschin. - M., 2013. -Issue III-IV.
8. VasilyL.S. History of religions of the East. - M., 1983.
9. Political system of the USA: Current dimensions. - M.: Nauka, 2000.
10. Semenikhin V.V. Land tax. 3rd ed. - M.: GrossMedia, ROSBUKH, 2013.
11. Sergeev V. V. About legal persons of public law // Banking law. - 2013. - No
2. - P. 3-15.
12. Yurtayeva Ye.A. Normalization of legislation: modern modulations in the Russian law-making // Russian law magazine. - 2012. - No 11. - P. 28-39.
13. Boshno S.V. Regulatory legal act: development of attributes in law
enforcement practice // Arbitration and civil procedure. - 2009. - No 4, 5, 6.
14. Boshno S.V. About Internet publication // Law and modern states. - 2013. -No 2.
