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Transformation of rules of legislative technique into anticorruption expertise
DOI: http://dx.doi.org/10.14420/en.2015.2.6
Natalya Sokolova, postgraduate student of the Institute of Public Administration and Management (IPAM) The Russian Presidential Academy of National Economy and Public Administration (RANEPA), e-mail: sonage@mail.ru.
Abstract. The article is devoted to the importance of the rules of legislative
technique when creating normative legal acts. It considers the question of the correlation between the rules of legislative techniques and methods of execution of anticorruption expertise. Concepts of "defect of legislative technique" and "corruptogenic factors" are analyzed and compared. The conclusion is made about the actual identity of the individual defects of legislative technique and corruptogenic factors identified at the legislative level. Keywords: legislative technique, the quality of legislation, the defect of legislative
technique, anticorruption expertise, corruptogenic factor.
Laws are written for people. Almost every one of us every day is in contact with various normative legal acts. Laws should be meaningful and effective, but at the same time understandable and accessible to ordinary citizens. In addition, the legislation being as one of the key social regulators of public life should be of high quality. Interest in the problems of the effectiveness of normative legal acts leads to search for the best tools of assessment of the quality of legislation and overcoming rule-making errors. Nevertheless, the quality of legislation remains rather low, and in no small measure due to the underestimation of the role of the legislative technique at creating them.
"The quality of the legislation is internally inherent to its form and content a combination of social and legal properties, which determine the suitability of the legislation to meet specific needs of the society"1.
Legislative technique is a system of means and methods of creating laws. It acts as a transformative and modeling power, which has responsibility for the proper expression of the will of the legislator in the texts of normative legal acts.
Mastering the system of requirements for the process of their preparation and issuance, related to the legislative technique, is an essential condition for improving the efficiency of normative legal acts. Traditionally, the legislative technique is considered as one of the elements of lawmaking. Yuri Alexandrovich Tikhomirov wrote, that some scholars-lawyers interpret it as system of rules and methods for the preparation of the most perfect in form and structure of the
1 Kashanina T. V. Judicial Technique. - M., 2015. - P. 154.
draft normative acts which ensure complete and accurate compliance of forms of regulatory requirements to their content, availability, simplicity and visibility of normative material, with exhaustive coverage of regulated issues. Others interpret it as a set of rules, tools and methods of development, design and systematization of normative acts in the context of the sources of law and lawmaking. The text of a normative document is the object of it in respect of which the legislator spends intelligent efforts1.
Legislative technique is one of the elements of judicial technique. Judicial technique can be defined as a system of science-based and practical existing tools and methods used to create, systemize, apply, implement and interpret normative legal acts, that is, it is a system of knowledge about certain methods in lawmaking, interpretive activities, through which the goals of legal regulations are achieved. The main area of application of legislative technique is a lawmaking. The language (words, phrases, sentences) is the material in the legislative technique. Legal terms and legal constructions, presumptions and fictions, means of the structural organization of the text and its documentary presentation are its instruments. Its content consists of rules different in nature and form of expression for the implementation of legal work. Rules for legislative technique are specific requirements for the activities to develop a normative legal act. Nikolai Alexandrovich Vlasenko names five groups of general rules (requirements) of judicial technique:
1) requisite requirements (external design rules);
2) contest rules;
3) structural rules;
4) language requirements;
5) logic requirements2.
The requisite rules apply to the form, type, details of the normative act. Contest rules include rules allowing to correlate the performance of legal actions with the real situation. Structural rules are expressed in giving a structure to a legal document. Logic rules require consistent implementation of all stages of legislative activity. Language requirements imply accuracy of presentation, clarity and availability for understanding.
We suggest to consider the rules of legislative technique more concisely, highlighting rules:
1. Relating to the form (external design) of normative legal acts (the presence of mandatory official details: name, date, accepted authority, the signature of the official concerned);
2. Relating to the content of a normative legal act (regulation of homogeneous social relations, absence of gaps, minimization of exceptions and references);
3. Relating to the structure of a normative legal act (general standards are placed at the beginning of the normative act, uniform norms are stated compact, numbering of the articles is a solid and stable);
4. Relating to the presentation of the rule of law (clarity, accuracy, brevity of
1 Tikhomirov Yu. A. On the rules of legislative technique // Journal of Russian law. - 1999. - № 11. - P. 115.
2 Vlasenko N.A. Rules of legislative technique in the normative legal acts of subjects of the Russian Federation // Lawmaking technique of modern Russian: condition, problems, improvement: collection of articles: in 2 - volumes. - Nizhny Novgorod, 2001. V.1. - P. 170-183.
the language of the normative act, standardization of wording).
We will outline the rules of presentation in detail, since the legal activity is carried out for people for whom it applies, and any legal act, as it has been said, must be understood.
Clarity, in fact, is the first rule of presentation of normative legal acts. Because of the lack of clarity and comprehensibility of a legal document not just errors can occur, but also abuse, and as a result, litigation. "The degree of simplicity and clarity, and is determined and depending on who the legal act is designed for, what sphere of relationships it relates to directly. If this is an indefinite number of persons, the acts must be written in a simple language (for example, the Constitution of the Russian Federation). If the legal act regulates the rather narrow scope of social relations (for example, the rules of the postal service), the text of the act can be complicated"1.
The following rule of presentation is accuracy, which is understood as a degree of conformity to something. Without accuracy the legal act loses certainty, the conditions are created for its controversial interpretations, and hence for the likely abuse.
Availability is characterized by the use of the simplest terms, phrases, used and easily perceived by the majority of the population, denial of abuse of foreign words, archaisms and so on.
Such rule of presentation as brevity implies a lack of verbosity, use of concise language, standardization wording.
Efficiency and effectiveness of the rule of law is directly related to the technical (logical and linguistic) means of its expression. It is important not so much the number and content of the rule of law as their technical excellence. Inaccurate design of the text of the normative legal act can lead to distortion of the information inherent in it, and, in some cases, contributes to the manifestation of corrupt patterns of behavior of a law enforcer. Many legal acts suffer from uncertainty of content, stylistic negligence, improper record of details, incorrect compositional structure and the structure of the content part of the act.
Violation of any of these rules implies the lawmaking errors or defects of the rule of law, including gaps, collisions, breach of style, redundancy of information and others.
" In a broad sense, a defect of legislation is such a state of laws, and as a consequence, and other normative legal acts in which the legal regulation of public relations breaks the optimal balance of the interests of man, society and the state, negative political and socio-economic phenomena are generated, personal and public interests are unjustifiably infringed.
In a narrow sense, defect of legislation is the poor quality of laws by virtue of which the formation of a system of legal regulation is hampered, and the problems of realization of relevant legal norms arise"2.
The term "defect" is not a legal term. Speaking of defect of the rule of law it often refers to the lack, flaw, imperfection, a flaw in the statement. In the legal literature it is used to speak more about lawmaking errors, which are divided
1 Kashanina T. V. Decree. Col. - P. 131.
2 Kislichenko E.I. Defects of legislation of the subjects of the Russian Federation in the sphere of local self-government: Author. Dis. ... Cand. Jurid. Sciences. - Kazan, 2012. - P.19.
into two types: 1) errors that can be corrected by the lawmaking body itself in the normal course of its business; 2) errors that are detected after the introduction of the normative legal act into legal force; these errors impede the proper application of the act in practice, give rise to a conflict situation, because despite their unintentional nature of their appearance the problem of their serviceability arises, and it is this quality of legal error which allows to require a revision of the normative legal act, its appeal, cancellation or correction1.
Despite the fact that the above rules have long been known and have been the subject of research of several generations of scholars, in the past, and now these lawmaking mistakes are the place to be! In turn, they, at least, make it difficult to work on the application of this or that normative legal act, and as a maximum, may contribute to the emergence of corrupt actions and decisions.
It should be said that not today, there was a necessity and practice of searching and eliminating defects of the rule of law. Legislative technique and previously was recognized as the important factor of optimization and efficiency of legislation. Even before the adoption of the relevant normative legal acts in the field of combating corruption, in particular, on issues of anticorruption expertise, work was carried out to verify the normative legal acts and their drafts on the presence of legal redundancy, situational enforcement, collisions, a large number of blanket norms, etc. It has been and remains legal and technical component of the legislative process, and should be carried out, first and foremost, at the stage of preparation of drafts normative legal acts by corresponding subjects.
According to subparagraph "a" of paragraph 1 of article 1 of the Federal Law of December 25, 2008 № 273-FL "On Combating Corruption", corruption is understood as: abuse of official position, bribery, bribe-taking, abuse of power, commercial bribery, or other illegal use by an individual of his official position contrary to the legitimate interests of society and the state in order to obtain benefits in the form of money, valuables, other property or property-related services, other property rights for themselves or for third parties, or illegal provision of such benefits to the said person by other individuals.
Thus, that rule of law is corruptive, defective statement of which could potentially lead to one of the mentioned actions.
Legal expertise, part of which is the anticorruption expertise, is valuable tool to ensure legal correctness and overcome lawmaking errors. The said Federal Law also established that the conduct of mandatory anticorruption expertise of legal acts and their drafts refers to measures for the prevention (prophylaxis) of corruption.
Anticorruption expertise is the evaluation activity, the essence of which is to penetrate into the essence of the draft normative legal act, and having known its content and form, to decide on the regulatory fitness. The person performing the expertise should simulate possible conflict situations, in order for them not to become a reality and not to cause adverse effects.
In 2009, Decrees of the Government of the Russian Federation of March 5, 2009 № 195 and № 196 approved Rules and Methodology for conducting anticorruption expertise of normative legal acts and their drafts.
1 Morozova L.A. Lawmaking errors and procedural means of removing them // State and Law. - 2010. - № 1. - P. 39.
In July 2009, it was adopted the Federal Law of July 17, 2009 № 172-FL "On anticorruption expertise of normative legal acts and drafts normative legal acts". This Law gave the definition of anticorruption expertise as legal verification of normative legal acts and drafts normative legal acts in order to identify in them corruptogenic factors and their subsequent elimination.
Decrees of the Government of the Russian Federation of March 5, 2009 № 195 and № 196 were canceled due to the adoption of a new Resolution of the Government of the Russian Federation of February 26, 2010 № 96 "On the anti-corruption expertise of normative legal acts and drafts normative legal acts", which approved a new Methodology for conducting anticorruption expertise.
The new legislation established, that the anticorruption expertise of normative legal acts (their drafts) is carried out by organs, organizations, their officials, in accordance with the Federal Law, with the procedure, established by normative legal acts of the relevant federal executive bodies, other state bodies and organizations, public authorities of the subjects of the Russian Federation, bodies of local self-government.
According to paragraph 2 of article 1 of the Federal Law of July 17, 2009 № 172-FL "On the anticorruption expertise of normative legal acts and drafts normative legal acts", corruptogenic factors are the provisions of normative legal acts (drafts normative legal acts), establishing for the law enforcer unjustifiably wide limits of discretion or the possibility of unwarranted use of exceptions to the general rules, as well as provisions containing vague, intractable and (or) the onerous requirements for individuals and organizations, thus creating conditions for manifestation of corruption. As we can see, the legislative definition actually consists of corruptogenic factors identified by the legislator in the Methodology for conducting the anticorruption expertise of normative legal acts and drafts normative legal acts.
N.A. Lopashenko in the legislative definition of the concept of "corruptogenic factor" highlights the provisions of normative legal acts and their drafts. In the content of the provisions it can be distinguished features that allow to classify corruptogenic factors into the following types:
a) establishing for the law enforcer unreasonably wide limits of discretion;
b) establishing for the law enforcer the possibility of unreasonable application of exceptions to the general rules;
c) containing vague requirements for individuals and organizations;
d) containing intractable requirements for citizens and organizations;
e) containing onerous requirements for citizens and organizations;
f) containing any combination of the above-stated types.
The possibility of creating conditions for corruption by any type individually or taken together is considered as a fundamental characteristic1.
The Methodology for conducting anticorruption expertise of normative legal acts and drafts normative legal acts, which was approved by the Resolution of the Government of the Russian Federation of February 26, 2010 № 96, duplicated provisions of the Law. The above types of corruptogenic factors are grouped into two groups: 1) the provisions of normative legal acts (drafts normative legal
1 Lopashenko N.A. Corruptogenic factors // a dangerous transformation of regulatory interpretation// Legality. - 2009. - № 10. - P. 21.
acts), establishing for enforcement unjustifiably wide limits of discretion, or the possibility of unwarranted use of exceptions to the general rules, and 2) the provisions containing undefined, intractable and (or) onerous requirements for citizens and organizations.
Those defects of the rule of law that existed before the introduction to legislation such term as "corruptogenic factor" correspond to features of corruptogenic factors: "Under the corruptogenic factor it should be understood such "norms-defects", the application of which may give rise to manifestations of corruption of officials"1.
Now, if to consider the corruptogenic factors, which the legislator has indicated as such in the Methodology for conducting anticorruption expertise of normative legal acts and drafts normative legal acts, approved by the Resolution of the RF Government of February 26, 2010 № 96, then it can be seen, that in fact they correspond to defects of legislative technique, which have been known for some time. This can be clearly seen in the following table, where the eleven factors identified by Legislator are highlighted.
Corruptogenic factor Defect of legislative technique
Limits of discretionary powers Internal legal redundancy
Definition of competence according to the formula "has the right" Case law enforcement
Selective change in the volume of rights Creation of artificial obstacles for citizens and organizations in the enjoyment of their rights
Excessive freedom of bylaw rulemaking The presence of a large number of blanket rules
The adoption of a normative legal act outside the competence The absence of a closed list of powers
Filling legislative gaps by using the by-laws in the absence of legislative delegation of respective competences Settlement of public relations by a normative legal act having less legal force
Absence or incompleteness of administrative procedures Gaps in legislation
Refusal from competitive (auction) procedures Addressing issues in the procedure for administration
The presence of excessive claims for individual made for implementation of the right belonging to it. Unjustified exclusion from general rules
Abuse of the right of the applicant by bodies of state authorities or bodies of local self -government (their officials) Absence of clarity in the normative legal act
1 Filatov S.y. Anticorruption expertise: practice and problems of implementation // Legality. -- № 9.
2014.
Legal-linguistic uncertainty
Absence of clarity
and accuracy of the legal document
In some cases, the position of a normative legal act is recognized as corrupt, in others relevant to anticorruption legislation. One of the reasons for opposing views is that the description of the corruptogenic factors has a number of disadvantages - the ambiguity, vagueness, absence of targeting. The uncertainty in the formulation of specific corruptogenic factors can lead to the recognition as corruptogenic of many normative legal acts. "Quite often, mistakes are made allowing even "harmless" norms of the legal act to be corruptogenic. This happens as a rule in violating one of the principles of conducting anticorruption expertise -the principle of assessment of normative legal act in conjunction with other normative legal acts"1.
Under the corrupt factor (corrupt component) it is understood defects of norms and legal formula, the provisions of the normative legal act, enabling officials to use the provisions of the law for personal (selfish) interests. Corrupt norm is the norm, which contains the corruption factors.
Corruptogenic factors it is, first of all, the provisions of normative legal acts or their drafts, creating opportunities for corruption. The application of these provisions may give rise to manifestations of corruption of officials. To avoid creating defective rules of law, the legislative technique has a goal to create quality normative legal acts, both in form and in content. The content of the normative legal act must be such that it is able to produce tangible results in the form of effective regulation of social relations. The above rules exist in unbreakable unity, are connected among themselves. Their observance in lawmaking process can lead to the creation of qualitative normative legal acts.
References:
1. Federal Law of December 25, 2008 № 273-FL "On Combating Corruption" // Collection of the legislation of the Russian Federation. - December 29,
2008. - № 52 (part 1). - Art. 6228.
2. Federal Law of July 17, 2009 № 172-FL "On the anticorruption expertise of normative legal acts and draft normative legal acts" // Collection of the legislation of the Russian Federation. - July 20, 2009. - № 29. - Art. 3609.
3. Resolution of the Government of the Russian Federation of March 5, 2009 № 195 // Collection of legislation of the Russian Federation. - March 09,
2009. - № 10. - Art. 1240.
4. Resolution of the Government of the Russian Federation - March 5, 2009 № 196 "On approval of the Methodology for conducting expertise of draft normative legal acts and other documents in order to identify provisions in them, contributing to the creation of conditions for corruption" // Collection of the legislation of the Russian Federation. - March 9, 2009. - № 10. - Art. 1241.
5. Resolution of the Government of the Russian Federation of February 26, 2010 № 96 "On the anticorruption expertise of normative legal acts and
1 Aleshkova N.P. Limits of discretionary powers as the most common corruptogenic factors of normative legal acts // Municipal Law. - 2012, № 3.
draft normative legal acts" // Collection of the legislation of the Russian Federation. - 2010. - № 10. - Art. 1084.
6. Aleshkova N.P. Limits of discretionary powers as the most common corruptogenic factors of normative legal acts // Municipal Law. - 2012. - № 3.
7. Vlasenko N.A. Rules of legislative technique in the normative legal acts of subjects of the Russian Federation // Lawmaking technique of modern Russian: condition, problems, improvement: collection of articles: in 2 -volumes. - Nizhny Novgorod, 2001.
8. Kashanina T.V. Judicial Technique. - M., 2015.
9. Kislichenko E.I. Defects of legislation of the subjects of the Russian Federation in the sphere of local self-government: Author. Dis. ... Cand. Jurid. Sciences. - Kazan, 2012.
10. Lopashenko N.A. Corruptogenic factors // a dangerous transformation of regulatory interpretation//Legality. - 2009. - № 10.
11. Morozova L.A. Lawmaking errors and procedural means of removing them // State and Law. - 2010. - №1. - P. 39.
12. Tikhomirov Yu.A. On the rules of legislative technique // Journal of Russian law. - 1999. - № 11.
13. Filatov S.V. Anticorruption expertise: practice and problems of implementation // Legality. - 2014. - № 9.
