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To the question about the concept, fatures and classification of one or the forms of corporate law
DOI: http://dx.doi.org/10.14420/en.2015.1A
Garnik Vardanovich Adamyan, The Legal Counsel of the State budget Agency «The medical treatment-labour workshop in psychiatric hospital № 3 of the Moscow City Department of Health», e-mail: adamyangaro@mail.ru
The article analyzes the scientific literature about local legal acts as one of the types of regulatory legal acts. By comparing the positions of jurists of Soviet and contemporary periods, the author reveals the signs of local legal acts, synthesized in earlier studies, and complements them with his practices. Division of local acts into intra-organizational and externally oriented ones developed by the author is innovation. It is suggested classification of acts on quantitative sub-legality: i.e. by the number of individuals to which it applies, on:
1) regulatory legal acts (effective for an indefinite number of persons);
2) local regulatory legal acts (act on members of the Organization); and 3) individual legal acts (act on the personified entity). corporate law, legal act; local legal act; regulatory legal act; individual legal acts; acts of the institutions; acts of organizations, intra-organizational acts; competence of public authorities; hierarchy of legal acts.
One of the forms of corporate law is the local normative legal act, but at current, the common definition of it in legal science and corporate legal culture is not yet finalized. It also has not been established yet by legislation. However, to characterize such documents, modern researchers propose some wording. These concepts developed in the science of law theory are significantly enriched due to research in a number of areas of law- labor, social, municipal and other.
Modern jurisprudence develops thesis about the local lawmaking on worked well enough foundation which was created in the domestic jurisprudence in 1960-1980-ies, where a theme of local law-making in relation to acts of Socialist enterprises, kolkhozes, labor entities was actively developed. At that time, a number of researchers actively engaged in this field within the framework of the
Abstract.
Keywords:
study of the theory of labor law1. At the same time, as noted by Venir Kalimullovich Samigullin, in the Soviet theory of law, the term «acts of state enterprises, institutions and organizations» was used, which were seen as a part of the system of regulatory legal acts set by the state2. This was explained by the fact that the State was the owner of enterprises, and acts themselves of organizations were usually established on the basis of the standard government forms, such as, for example, the Model statute of a Socialist enterprise. In general, the problem of local regulation was not relevant by virtue of the monotony of acts and consistency of legislation system. Idea of hierarchy of acts actually was replaced by the notion of Socialist discipline.
An acute need in shaping exactly local legal acts is connected with development of market relations and has been originated during the construction of a new Russian statehood. To some extent, this is due to the rapidly increase of a number of diverse legal entities. Individual enterprises, limited liability companies, joint stock companies, corporations have emerged that was completely new after years of domination by the Socialist property and the absence of private business. Subjects of the law, citizens did not have the legal experience and created legal forms intuitively, by empirical way, forming by their actions a new corporate culture. At the same time, a theory of corporate law-making in the modern legal science began emerging. Already significant experience has been accumulated, which, however, needs to be systematized. Theoretical-doctrine making of corporate law found its expression, in particular in the works of Tatyana Vasilyevna Kashaninina3. Currently, the development of relevant recommendations is on the agenda. Although the main directions of the theory of normative local creativity are developed in labor, corporate and municipal law, local acts are also quite in demand and in other branches of legislation.
Problematic of identifying and defining local legal acts and their classification becomes a priority. While a scientific basis in the area of separation or identification between regulatory and local acts as well as criteria for the ratio of these documents has most practical relevance to law-making and law enforcement. Although currently there is no generally accepted definition of this term, it is generally assumed that the local legal acts are legal documents containing rules of law adopted by subjects of management in the organizations of various forms of ownership and departmental subordination4.The definition of local legal acts is traditionally given in comparison them with state normative legal
1 Arkhipov S.N. Issues of improvement and development of local normative- legal regulation // XXVII Congress of the CPSU and the development of theory of State and law: intercollegiate collection of scientific papers. -Sverdlovsk, 1987; Samigullin V.K. Specification of law and local normative regulation // Application of Soviet law: collection of scientists works. iss. 30. - Sverdlovsk, 1974. -— P. 119-121; Samigullin V.K. Local norms and their types/Jurisprudence. — 1976. — № 2. — P. 38-43; Samigullin V.K. Systematization of local normative legal acts of the Soviet law. Issues of theory: Dis... Cand. Jurid. Sciences. — M., 1976.
2 Samigullin V.K. Specification of law... — P. 119.
3 Kashanina T.V., Sudar'kova E.A. Company law. — M., 1997.
4 Komarov S.A., Malko A.V. Theory of State and law. — M., 1999. — P. 317.
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acts. At comparative analysis it is usually indicated such qualities of local acts as their establishment by organizations, businesses, other entities or persons, a limited number of subjects in which they apply, their by-law character, and some others.
Highlighting common features of such regulatory documents, usually it is indicated that local legal acts: a) contain legal norms; b) are subordinated, i.e. are based on laws and bylaw acts, cannot be in contrary to them and occupy in relation to laws a subordinate position; c) are established in organization by a competent body, as a rule, the employer is the main subject of the local normsetting; d) are established by the organization to address internal issues and exercise only in its limits1.
Soviet researchers Sergei Sergeyevich Alexeev and Veniamin Fedorovich Yakovlev offered the following definition of local legal act: local normative legal acts are normative by-law acts established by the organization only to address internal issues and regulating only in its limits. They are internal in the strict sense of the word, and express the beginning of decentralization in legal normative regulation2.
In the new stage of socio-economic development of the country, Sergei Alexandrovich Komarov and Alexander Vasilyevich Malko gave different definition: local legal acts, in their view, are referred to as legal documents containing rules of law established by subjects of management in the organizations of various forms of ownership and departmental subordination3.
Developing the provision and highlighting features of such documents, Irina Sergeevna Shitkina, corporate law expert, indicates that local legal acts:
a) are based on the legislation and other legal acts and cannot contradict them;
b) enforce legislation and other legal acts; c) are a part of soft permission and not in contradiction to the legislative imperative ban; d) are accepted by the competent authorities of the management of the organization in accordance with the established procedure and do not require acceptance or approval by any other bodies, including state ones; e) apply to all subjects involved in the internal relations of the organization: management, shareholders, employees, administration, structural subdivisions; f) in some cases (mostly socio-labor sphere and social partnership) are subject to discussion in the workplace, approval or agreement with the employees' representative bodies; j) are taken into account by judicial law enforcement agencies during the consideration of disputes arising from the internal work of the organization4.
Svetlana Vladimirovna Uhina offers the following definition: «Local legal acts
1 Karnauhova E.V. Systematization of local normative legal acts of the Russian Federation: General characteristics and type: synopsis. Dis. ... Cand. Jurid. Sciences. - Tyumen, 2011.
2 Alekseev S.S., Yakovlev V.F. Legal regulation of economic relations // Soviet State and law. - 1979. - № 1 - P. 61-69.
3 KomarovS.A., Malko A.V. Theory of State and law. - M., 1999. - P. 31.
4 Shitkina I.S. Juridical provision of activities of joint-stock company. Set of local normative acts. - M., 1997. - P. 256.
are rules and other stipulations of compulsory nature adopted by the organization in accordance with the established procedure and intended for a certain circle of persons and regulating the basic spheres of the organization operation». She also highlights the inherent basic features. So, the local act:
a) has a norm creating nature; b) always enters the documentary form (Decision, Order, Regulations, Rules, Instructions, etc.); c) must have requisites; d) is expressed in writing, that is needed to achieve uniformity of understanding its requirements, as well as possible sanctions for its application1.
A number of features of local acts are specified by the famous jurist, Professor Yuri Alexandrovich Tikhomirov: a) the adoption of acts in enterprises, institutions, organizations, where directly the functions of management and industrial, commercial, educational, scientific, and other processes merge; b) coverage in local acts of all responsibilities entrusted by the Charter, and the provision on the corresponding structure; c) constraining of local acts activity by a sphere of activity of corresponding structures in establishing procedures, grounds and circle of entities authorized to make decisions; d) combination of managerial decision-making procedures with the self-management of workforce, shareholders and others, with the participation of public organizations2.
When considering features of local normative acts, it should be noted that they have all the qualities of the normative legal acts. So, for example, Gennadiy Valentinovich Khnykin under labor law distinguishes such common signs of public and internal organizational acts as a willed content, official character, universal character, documenting form, multiplicity and hierarchical building, predestination to regulate the socially significant public relations3. Along with common features, the researcher highlights such specific peculiarities of local legal acts, as their subordinate nature and that the main dominating subject of the local norm-setting is an employer who can accept local normative acts within his competence. The number of features also includes a design of local normative acts for internal use only within a certain organization resulting in the highest proximity to the employee compared with other legal acts. Local norms distinguish in speed of responsiveness to a change of social organization of work and social orientation, and flexibility in the application of labor legislation to the specific conditions of production and a variety of local norms allow to establish advantages of one organizations over others. The scientist also notes the presence of harmonization of interests of employees and an employer through the introduction of a system of «checks and balances» of the parties disclosed in internal acts4.
1 Ukhina S.V. Factors and criteria for the process of optimization of the local norm-setting//Legal thought. - 2008. - № 6. - P. 134-136.
2 See: Legal acts: assessment of effects. Scientific-practical guide / A.V. Kashanin, Y.A. Tikhomirov, S.V. Tretyakov, etc.; editor in chief Y.A.Tikhomirov. - M., 2011.
3 See Khnykin G.V. Role of local normative acts in the system of relations regulated by labor law // Legal relations in the context of the development of modern legislation and enforcement: the materials of the International scientific-practical conference. - Ivanovo, 2008. - P. 199-208.
4 Khnykin G.V. Formation and development of local labor law in Russia // Proceedings of the Law Faculty of the Lomonosov Moscow State University. Book 12. - M., 2010. - P. 307-316.
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Based on the analysis of the above positions of scientists and corporate legal practices it can be distinguished a number of commonly accepted features of local legal acts, which: a) contain rules of law; b) have subordinate nature; c) established by the competent authorities within the organization; d) belong to a certain circle of subjects; d) have the documentary form.
Among the most significant characteristics of local acts, there are the origin of these documents, the order of their adoption, the issuing body or individual. Peculiarity of local legal acts is that they are established not by public authorities or their officials. Their source is the organization's decision in the face of its authorized bodies. But often a state document is the cause, reason, and the ground of the establishment of the local act. For example, a number of documents in the field of trafficking and the protection of personal data is established by legal entities by virtue of the direct instruction of the Labor Code or the Federal Law «On personal data protection». This public initiative in the publication of the act of organizations allows to see a type of bylaw of legal regulation in local legal acts.
The question on the range of subjects that are covered by the action of the local legal act is crucial. It is therefore proposed a classification of legal acts on the intra-organizational and externally oriented (operating outside the organization), which allows to determine the legal form of the document and to establish its place in the system of legal regulation. At the same time, the intra-organizational acts include acts which affect only the members of the organization (enterprise, parties or other structured units), and externally oriented acts are such that act on to unauthorized persons, identifying, for example, access and rules of conduct for visitors, customers, etc.
It should not be forgotten, that the order of action of various acts within the system and outside it has a constitutional origin. Thus, in accordance with Article 15 of the Constitution of the Russian Federation, normative legal acts concerning human rights and freedoms, subject to official publication. The interpretation of this provision leads to the conclusion that if the act is valid only within the organization, it can also be used without an official or other publication. This thesis cannot be understood straightforward as allowing «hide» legal regulations of intra-organizational nature. The idea is that local acts, intended for members of the organization, can be brought to their attention in other ways, but it is assumed that all interested parties should have the opportunity to get acquainted with them. For example, the traditional method of reference in the labor law is the signature of the employee.
The intra-organizational nature of local acts assumes the extension of action of the act to the members of this organization, assumes membership in the organization, the presence of the organizational-legal relationship between the body which has established it and the immediate subject of law. This problem is associated with identification of subjects that are covered by the action of a specific document. For theoretical-legal studies of greatest importance is the notion of an indefinite number of persons, who are subject to the action of the act. Regulations are a form of a positive law which applies regardless of a specific
subject, it exists objectively. For corporate law, quantitative criterion is irrelevant, it is important availability of organizational communication, so it only applies to members of the corporation and does not extend to other persons.
Taking into account the above said, local normative legal act could be seen as a legal document, which contains rules of law, is adopted by the relevant bodies of varying structure for regulation of internal organizational issues and refers to a certain circle of persons. The definition of 'local act" is generic. Local acts could be collective or individual. The doctrine on normative legal acts, established by public authorities, can be adapted to local acts according to their characteristics.
Classification of legal acts on quantitative subordination (according to the number of persons to whom it applies) is as follows: 1) normative legal acts (effective for an indefinite number of persons); 2) local normative legal acts (apply to members of the organization); and 3) individual legal acts (apply to the personified entity).
References:
1. Alekseev S.S., Yakovlev V.F. Legal regulation of economic relations // Soviet State and law. — 1979. — № 1.
2. Arkhipov S.N. Issues of improvement and development of local normativelegal regulation // XXVII Congress of the CPSU and the development of theory of State and law: intercollegiate collection of scientific papers. — Sverdlovsk, 1987.
3. Karnauhova E.V. Systematization of local normative legal acts of the Russian Federation: General characteristics and type: synopsis. Dis. ... Cand. Jurid. Sciences. - Tyumen, 2011.
4. Kashanina T.V., Sudar'kova E.A. Company law. — M., 1997.
5. Komarov S.A, Malko A.V. Theory of State and law. — M., 1999.
6. Legal acts: assessment of effects. Scientific-practical guide/A.V. Kashanin, Y.A. Tikhomirov, S.V. Tretyakov, etc.; editor in chief YA.Tikhomirov. — M., 2011.
7. Samigullin V.K. Specification of law and local normative regulation // Application of Soviet law: collection of scientists works. Iss. 30. - Sverdlovsk, 1974.
8. Samigullin V.K. Local norms and their types // Jurisprudence. — 1976. — № 2.
9. Samigullin V.K. Systematization of local normative legal acts of the Soviet law. Issues of theory: Dis. Cand. Jurid. Sciences. — M., 1976.
10. Ukhina S.V. Factors and criteria for the process of optimization of the local norm-setting // Legal thought. — 2008. — № 6.
11. Khnykin G.V. Role of local normative acts in the system of relations regulated by labor law//Legal relations in the context of the development of modern legislation and enforcement: the materials of the International scientific-practical conference. — Ivanovo, 2008.
12. Khnykin G.V. Formation and development of local labor law in Russia //
Proceedings of the Law Faculty of the Lomonosov Moscow State University. Book 12. - M., 2010. 13. Shitkina I.S. Juridical provision of activities of joint-stock company. Set of local normative acts. - M., 1997.
