The subject and object of legislative equipment authors. The subject, structure and objectives of the course of legislative technology. When creating a regulatory document, it is necessary to follow the rules of legislative technology. The rules of legislative equipment can be divided into tr.
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EDUCATIONAL INSTITUTION
Higher professional education
Belgorod University of Consumer Cooperation
Department of Theory and History of State and Law
COURSE WORK
on the topic "Legislative Technique"
Performed:
Checked: Senior Department teacher
Theories and Stories of the State and Law
Smirnov V.A.
Belgorod 2009.
Content
- Introduction
- 1.2 Lawmand
- 1.3 Legislative Technique
- 2.2 Classification of laws
- 3.1 Logic of the Law
- 3.2 Style of Law
- 3.3 Land of Law
- Conclusion
- List of used sources and literature
Introduction
In modern society, people and various kinds of associations are constantly in contact with the rules (norms) recorded in the laws and subtitle acts - with their requirements, prohibitions and permissions, with the need for compliance, execution and application, with the consequences that occur when they are violation . Each state establishes a certain order in social relations, which, through legislation and legislation, formulates them in legal norms, ensures, protects and protects. The legislation covers most of the spheres of human activity, expands the boundaries of their regulatory impact on social relations as social existence is complicated, directly accompanying people in their communication with each other.
Now In our country, a course is taken to form a legal state, which is undoubtedly related to the increase in the role of the main legal source (forms) of Russian law in the state and public life - law. As is known, reflecting social interests in concentrated form, the law acts as the main regulator of public relations, the guarantor of the rights and freedoms of a citizen. It serves as the most important means of transformation in the economic, social and other areas and at the same time contributes to stabilization, sustainability of the social situation. The law establishes the legal framework of the activities of all state and public institutions, occupies a leading place in the legal system, since its legal force determines the dynamics and the content of all other legal acts called therefore by the by-laws.
Such a significant role of legislation in the life of the personality and society involves knowledge, first of all, how it is created is formed and developing, which is the essence of lawmaking. Without such knowledge, any successful activity on the creation of laws and regulatory acts, designed to serve as the tasks of ensuring freedom of individual and progress of society.
Lawmakers, as well as every creativity, suggests not only a common culture from lawmakers, but requires special knowledge of them, certain skills in mastering the art of formation and formulating legislation. These knowledge in world legal theory and practice are referred legislature technique.
The topic of the course is relevant for the study, since this branch of knowledge is in detail in many civilized countries, reflected in numerous literature, describing in detail how they should "make laws", what requirements they must respond, but unfortunately, domestic experts in the field of law are clearly not enough attention is paid to this industry theory and practice of lawmaking.
The purpose of the work is to study the essence of the legislative technology and its role in the process of lawmaking, the result of which is the normative document - the law.
To achieve the goal of work, it is necessary to solve the following tasks:
1. To define the concepts of "right", "lawmaking", "legislative equipment" and determine their relationship.
2. To define the concept of "law", formulate its signs, to classify the laws.
3. Determine the rules and principles of the logical construction of regulatory acts, the style of the law and the language used in its creation.
1. Right, lawmaking, legislative equipment
1.1 Relationship of law, lawmaking and legislative technology
In modern society, people and various kinds of associations are constantly in contact with the rules (norms) recorded in the laws and subtitle acts - with their requirements, prohibitions and permissions, with the need for compliance, execution and application, with the consequences that occur when they are violation . Each state establishes a certain order in social relations, which, through legislation and legislation, formulates them in legal norms, ensures, protects and protects. The legislation covers most of the spheres of human life, expands the boundaries of their regulatory impact on social relations as the complications of social being, directly accompanying people in their communication with each other.
Lawmakers, as well as every creativity, suggests not only a common culture from lawmakers, but requires special knowledge of them, certain skills in mastering the art of formation and formulating legislation. These knowledge in world legal theory and practice are referred legislative technique, which is a certain system of requirements in creating regulatory rules, laws and subtitle acts, their systematization.
The question of what the right, ordinary consciousness is solved quite simply: the right is all those laws and other legal acts, which are created by the competent authorities of the state to regulate relations between people and are protected by using state coercion. In this simplicity there is a certain proportion of truth, but there is no main thing - strictly scientific identification of the essence, social value and purpose of the right, which is mistakenly identified usually with legislation. Unlike legislation, the right is an objective phenomenon, is produced historically in the process of universal communication, knowledge and activities. It follows from the objective need to streamline relations between people, their stability and certainty. The legislation is a subjective category, is created by the officials of the state authorized by the state officials of the state. From the outlined considerations, the conclusion for lawmaking is subject to the conclusion. If the right is, first of all, life, and not a formal-abstract reflection, then the laws are only inspired by the right, since they adequately reflect the dynamics of objective social development. The meaning of communication of law and the law is that the law, as an expression of state will, is intended to be accurate and in scientific respecting the impeccable wording of a valid, objectively arising, actually existing and developing rights in society. The legislator should see the right in reality, because the content of the law to be expressed in the state of state will, is given as something real by public relations themselves, laws, trends in their development. In other words, lawmaking is designed to translate the "legal nature of things" to the legislative language, embody the objective needs of social development in law in accordance with the rules and requirements of the legislative technology.
1.2 Lawmand
The culture of lawmaking accumulates: versatile knowledge of reality, its history and development prospects; Special knowledge of the right, law and legislative technique, their skillful use in practical activities on the creation of laws and their implementation. Mastering these knowledge and their use in the process of lawmaking makes it possible to create scientifically based and technically advanced legislative acts that fully respond to the urgent and the brewing needs of public progress. The legislator, therefore, should have comprehensive and deep knowledge, constantly replenish them in everyday communication with the people, enriched with his wisdom. And in order to shift all these knowledge, folk wisdom and their own life experience in the language of the law, he should be mastered by the skill of lawmaking, professionally use technician techniques.
The dynamism of the economic, political and social cultural needs of modern society puts forward all the new and new tasks of legal mediation of the respective public relations. The multi-faceted and deep social conditionality of these tasks clearly detects the simple list of problems that arise before the lawmaking, namely, the necessity:
studies of various social factors resulting in the need for regulatory legal regulation of relevant public relations;
identifying and thorough accounting in the formation of laws of diverse interests of social and national education, social groups and societies in general, their features, customs, traditions;
use in the process of creating the law of relevant achievements of science, technology and culture;
comparative analysis of the projected law not only with similar setting of past and current legislative systems of other states, but also with other regulators of public life activity;
legislative equipment lawmaking law
setting on appropriate and possible cases of special experiments to determine the optimal version of the legal regulation of the relevant groups of public relations and the development of the most effective form of legal impact on these relations,
definitions of communication, compliance and interaction of the projected law with this legal system as a whole and above all with the Constitution;
improvement of organizational forms, procedures for creating a law, etc.
The lawmaking is characterized by an organic unity of its three main components: knowledge, activities and results that constitute a relatively complete cycle of lawmaking, followed by the ascending line in the same sequence similar cycles forming the system of this process in its integrity. In fact, in order for the processes occurring in society adequately reflected in society, it is necessary to constantly detect, study and skillfully use objective patterns that guide these processes. That is why the prerequisite for the creation of the law is the knowledge of those difficult conditions, factors and circumstances, those developing public relations, the legal regulation of which is dictated by the needs of social progress.
However, the restriction of lawmaking by the framework of the "pure" knowledge that does not turn into an "active entity", the danger of restrictions on his passive speculation. For cognition should be activities. This transition is not straightforward and disposable. It is a time-consuming multi-stage deployment and concretization of knowledge in the work of the laws necessary for society. Only after the needs and objectives of the legal regulation of certain relations are conscious, the legislator decides on the transition from knowledge to activities. The period of creating the law itself, divided, in turn, is coming to a number of stages regulated by law and regulations established by the procedures.
If the cognition in lawmaking is the process of transforming objective reality into the fact of the legislative consciousness and adoption of the relevant decision, the implementation of this decision in reality to create the law is the opposite process of turning the legislative consciousness into an objectively existing law. Thus, the result of lawmaking, its product, acts the result - the law. But this result is only an intermediate, primary result, followed by the action of the law itself, which consists in practical regulation of the relevant public relations.
The study of the action of the law makes it possible to determine its effectiveness, expediency, scientific validity, etc., which in turn acts in the order of feedback on the legislative process, allows you to clarify, correct, add the existing legislation to increase its level, enrich its practical experience.
1.3 Legislative Technique
Legislature (regulatory) technics - This is a combination of rules, techniques, means and methods for the preparation, compilation and design of regulatory acts. Legislative equipment has two main goals. Firstly, rationally, adequately ypugulate public relations, preventing gaps, state the regulations clearly clearly, unequivocally, definitely, at the same time, quite briefly, economically, to a certain extent, is uniformly, standard. Multi-clinies, blurry of the wording, insufficient clarity, reduce the effectiveness of legal regulation. Another objective of rule-making equipment is focused on subjects - the addressees of regulations and is to make regulations are quite understandable, clear for those who are addressed to them so that they do not have doubts about their rights and responsibilities provided for by regulatory acts.
When creating a regulatory document need to follow rules legislature techniques. The rules of legislative equipment can be divided into three types:
but) Rules, relative to exterior registration regulatory acts. Each regulatory act should have the necessary details, which would reflect its legal force, the subject of regulation, the scope of action, would give him an official.
Each regulatory act should have: name of the type of regulatory act (law, decree, decree, etc.), the name of the body, which has made it, the name of the act, reflecting its content, the subject of regulation. This name must be brief if possible.
Further, the regulatory act must contain the date and place it adoption, and for more rational accounting of normative acts of its number. Such details of the regulatory act as its name (by type and content), the date, organ and place of adoption, taken together, constitute the so-called title of regulatory act. Mandatory props is the signature of the relevant official.
b) Rules, relative to content and structure regulatory act. The regulatory act must have a sufficiently specific subject of regulation and is designed to regulate homogeneous public relations. It should not regulate the relationship of various kinds and type. Relationships that make up the subject of regulation of different branches of law should be regulated by special acts.
The regulatory act should not change or cancel the norms regulating the relations of another kind than those that are regulated by the data. act . For example, a regulatory act establishes the norms of criminal law, should not cancel or change the norms of land or family law. It may contain only prescriptions for canceling or changing the norms that make up the subject of regulating this act. In a regulatory act, all issues related to regulating these relationships should be solved. The regulatory act, therefore, should not contain spaces. The act must contain such solutions to the regulation to be the same type, uniform. Such an example is the norms of the special part of the Criminal Code. The regulatory act, if possible, should avoid exceptions and references.
Regulation of important fundamental issues should not be lenned by secondary issues.
This is obliged to promote a certain structure of the regulatory act, which is based on a logically consecutive presentation of the act reflecting the specifics of regulated public relations, aims to use the usability of the regulatory act.
Large regulations may consist of two parts, not counting the title: from the introductory (or preamble) and the resolution. The preamble indicates the causes, reasons, objectives of the publication of the regulatory act. The rules are subject to the rules of law. The declaration at the end of the act may contain prescriptions that determine the time and procedure for the entry into force of the regulatory act, as well as the prescriptions that abolish the effect of other acts.
Among the rules belonging to the structure of the regulatory act, the following:
more general standards should be placed at the beginning of the regulatory act;
homogeneous norms must be allocated, made compactly, without scattering in different parts of the regulatory act; In large regulations should be isolated in chapters, sections, parts; Each chapter, partition, part must be called.
Each chapter of the regulatory act consists of articles, which in turn can be divided into parts (points, paragraphs), the numbering of articles should be solid, i.e. One numbering should go through all sections, parts and chapters. The numbering of articles should be constant, stable. In the case of add-ons, the regulatory act these additions are made or in the form of a part of an existing article, or a new article is introduced, which is placed in the relevant chapter, it is assigned the number of an existing article, but with the designation of its small digital sign (digit), which is raised next to Article number.
in) rules and receivers saying norm rights (language regulatory acts). The general rule of presentation of the rule of law is that the norms of law should be submitted briefly, clearly and defined. The main meaning of the norm may be lost behind the verb. Multili, vagueness can give a reason for various interpretation of the norms of law, to prevent them with uniform use. The brevity and definition of the formulation is achieved with the help of various methods of presentation of the rules of law, the use of special terms, standard language revolutions.
The achievement of these properties of the texts of normative acts contributes to different methods (techniques) of the presentation of the rules of law. They differ in different signs.
First, in the form of a sentence, in which the norm is expressed. The norm of law can be formulated as a regulatory or narrative (affirmative or negative) proposal. From a logical language point of view, the norm is a statement about the proper or possible behavior of its addresses. In the regulatory statement, regulatory terms are always influenced: "Forbidden", "obliged", "has the right", etc.
In many cases, the norm and is formulated in the form of a regulatory proposal using these terms specified and to them. For example, the "seller is entitled", "the debtor is obliged," "the court has the right", "the investigator is obliged", etc. But quite often the norm is drawn up in the form of a narrative offer without the use of regulatory terms. This takes place, for example, in cases where the described action is both the right, and the responsibility of the subjects.
Secondly, in the degree of generalization, abstract and casuistic methods of presentation can be distinguished by the abstractness of the presentation. The generalized method of presentation comes down to the generalization of many actions to one more general or abstract concept without a detailed description, without a detailed enumeration of the circumstances. With a casuistic method of presenting the circumstances in detail (casuistic) are listed. For example, the circumstances mitigating and aggravating responsibility are listed in detail in the Criminal Code. Each methods have its advantages and disadvantages. With the help of the first method, a brevity is achieved using the second - accuracy, concreteness of the presentation.
Thirdly, according to the degree of completeness of the state of the norm, direct, reference, blanket methods are distinguished. With a direct method, all elements, all the contents of the norm are set forth in one article. With a reference method, instead of the first (hypothesis) or the second part (disposition, sanctions), refused to another article of this or other, specifically specified regulatory act. Blanco method (from Franz. "Blank" - white, clean) is that it is given a reference to a specific genus, the form of any rules. The rules themselves in this case are numerous, they may vary, and the blanket norm remain unchanged. With the help of the last two ways, brevity is achieved, legislative savings.
2. Law: Signs and Classification
2.1 Law: Definition and its main signs
Etymologically (in its sense) the word "law" in Russian means "Rule", "limit", freedom of will and action. In other words, under the word "law" is always due to the rule of behavior general meaning, mandatory for all persons and organizations.
The legal meaning of the word "law" is that under the law they mean "rule, the decision of the highest power." The general legal rule is the rule of law, and the law as an act of the adopted by the highest power is the source in which the right (law norm) is born and contained, legal source, right. Accordingly, the law is a regulatory act establishing, setting canceling or changing general prescriptions - the norms of law.
In theory of law Definition law It is formulated as follows: This is a regulatory act adopted by the highest representative body of the state in a special legislative manner with the highest legal force and regulating the most important public relations in terms of the interests and needs of the country's population.
It should be added only to this that the general nature (regulation) of the law does not mean that the law does not contain separate individual or policy presses - instructions to the government, budgetary or planned indicators, program provisions, declarations.
So, based on the above definition of the law, it is possible to give the following signs:
The law is a regulatory expression of the will of the people as a result of coordination of various social interests;
Laws are accepted by the highest representative bodies of the state or the people themselves as a result of a referendum. This is due to the fact that any law has long been considered an act of expressing the highest power in the state.
The law regulates the most important relationships in the state and society, ensures the ordered development of economic, political and social spheres.
The law has the greatest legal force among other legal acts. The leading and determining state of laws in the system of regulatory acts of the state expresses one of the main requirements of the legality - the rule of law in the regulation of public relations. It means the regulatory orientation of the law and the obligation to comply with its provisions of other legal acts. No subtitle act can invade the sphere of legislative regulation. Otherwise it should be aligned with the law or canceled;
The law has the greatest regulatory concentration and is designed to provide to the subjects of the right to a wide selection of behavioral options, on an indefinitely multiple number of applications;
The law is adopted within the framework of a special legislative process and on the basis of established procedures. In the states of modern parliamentary democracy, the law is adopted by a representative body according to a certain regulation of the legislative procedure. Such a procedure, firstly, ensures the introduction of bills on really important issues of the country's life. This is usually fixed by restricting the circle of subjects of the legislative initiative, i.e. organs, individuals or a certain number of citizens. Such entities include, usually, the head of state, government, deputies or a group of deputies, higher court courts, some other bodies. Secondly, the legislative procedure is designed to ensure a comprehensive discussion of the bills adopted for consideration. It provides for the planning of legislative activities, consideration of them in three stages (readings), which ensures the possibility of all deputies, factions and groups to make their proposals, both on the concept of the project, and on its specific articles (chapters, sections), and ultimately, - Voting under articles (sections) of the law, and then to adopt the law as a whole. The procedure for voting bills and the procedure for their adoption by chambers is established.
The federal laws adopted in the prescribed manner have supremacy throughout Russian Federation. They should not contradict the Constitution of the Russian Federation, are subject to official publication and do not apply without publication. The law is necessarily published in official publications, and may also be published in other press bodies, published on television, radio, transmitted on the lines of communication with relevant government agencies and public organizations.
Thus, the adoption of the law includes four mandatory stages:
making a draft law in the legislature;
discussion of the draft law;
adoption of the law;
his publishing (publication).
2.2 Classification of laws
The diversity of social relations regulated by the right gives rise to many laws. They are similar in the main signs, but also differ in each other. The specifics of laws need to clearly imagine and fully take into account in the process of their preparation, adoption and implementation. Otherwise it makes it difficult to solve the tasks facing one or another. There is a confusion with the names, content and legal force of various acts. Numerous violations of legality are allowed. This and "Failures" in the activities and relationships of state bodies, these are difficulties for citizens in the implementation and protection of their rights and legitimate interests.
You can avoid these difficulties using properly constructed classifications that allow you to determine the legal force of laws. The concept of "legal force" in the concentrated form contains the characteristic of the types of laws and each of them individually, as well as their place in the legal system and the relationship between themselves. As already mentioned, the laws have the rule of law throughout the country and the highest legal force in relation to all other regulatory legal acts, in addition to this, the legal force of laws varies depending on their location in the classification. Using division on species, the hierarchical coenplex of acts occupying a higher place and a lower place in the state system is established. As a result, the foundations and framework of the adoption of a particular act, its main content. Formula "based on and pursuant to the law" expresses this legal connection. Also, legal force established as a result of the classification adopted allows to recognize a legal act that violated the established legal dependencies that violate the legality and losing law. To do this, there is a set of special funds: the suspension of the act, the abolition, recognition of the act invalidation, recognition by the inclusion of the act of the act of the act and related other acts, and the legal consequences generated by them. In other words, with the help of a proposed classification, it is possible to establish certain correlation and the cooding of legal acts, to express those systemic links and dependencies that are inherent in the legislation as a whole and its industries, as well as the entire legal system.
In theory of law, repeated attempts have been made to create a proper classification of laws. Moreover, the criterion for the division of laws on the species performed both general theoretical prerequisites and features of the laws that are allocated in their practical use.
With the first classification, all laws are divided into prohibitive and imperative. Next, the ladies are divided into forced and filling. They differ in the fact that forced laws define the content of the legal relationship itself, while the replenishment determines the content of the legal relationship only as much as subjects have not defined it at their discretion.
The classification of the second kind is based on the division of laws used in practical life. Such a classification has more application, so it is usually referred to as directly in legal acts. The foundations of such a classification are contained in the basic laws of states - constitutions. For example, Article 76 is dedicated to the Constitution of the Russian Federation. Since such division on species is of great practical importance, it is to stop on it. For clarity, we give a complete classification of laws, adopted lately in Russia.
So, in the Russian Federation there are the following types of laws:
Law (Most general form Act of the specified species).
Signing to the law in this sense contained in the Constitution and Legislative Acts means the law of both the federal and law of the subject of the Federation, both a single law and the law in a collective sense (as legislation).
The federal law.
The federal law in turn is divided into subspecies. In accordance with the Constitution of the Russian Federation, they include:
a) the Constitution itself (the main law of the state to which all other laws and any other acts must be complied;
b) federal constitutional laws provided for by the Constitution;
c) federal laws that do not have the importance of constitutional (in the legal doctrine they are called ordinary laws).
Codex - a law containing a system of norms, the most fully regulating a certain circle of social relations. Most often they are covered by the sphere of public life. The Code differs in the greatest stability and a peculiar dominant position in the relevant industry of legislation. In the Russian Federation, the Civil Code, the Criminal Code, the Customs Code, the Code of Labor Code, Family Code and others.
Basis of legislation.
This is a law governing the joint competence of the Federation and its subjects in a particular field of public life containing general principles and regulation procedure and contributing to their implementation in relevant acts of republics, edges, regions, etc. These, for example, the basis of the legislation on culture or the basis of legislation on the protection of citizens' health.
General principles, basic principles, basic principles.
Different names of the law containing mainly fundamental regulations requiring uniform use throughout Russia. The subjects of the Federation are entitled to concretize them in their laws (for example, local government).
Legislation.
This is a structurally ordered system of legislative acts in one or another sphere of state or public life. The legislation in a narrow sense covers only laws, in a broad sense - other regulatory acts (for example, decrees of the chambers of the Federal Assembly, the decrees of the President of the Russian Federation).
These are laws taken either international organizationsor national parliaments of federal states, and can be prepared by scientific centers and scientists. Model acts provide an approximate regulatory orientation for national legislation in those areas where general legal decisions are required. Considered by national parliaments.
There are also classification of laws: according to the subjects of law-conducting (division into the referendum adopted as a result of the authorities), by industry affiliation, as well as for a period of action (division into permanent and temporary).
The above classification of laws reflects the legal reality and achieving legal science. It can be very useful for lawmaking and clear streamlining of the entire array of legislation.
3. Logic, style and language of the law
The most important part of the legislative technology is such problems as the rules and principles of the logical construction of regulatory acts, the style of the law and the language used in its creation.
The creation of a system of legislation and each specific regulatory act involves the application of strictly defined techniques for the incarnation of the rules of law in the text of the laws. We are talking On the exact reflection in the text form of objective necessity, made and meaningful by the participants of the legislative process. And this is impossible without a well-developed logical system, scientifically based style and special, in many respects other than the generally accepted language of the law.
The value of these elements of legislative equipment is difficult to overestimate. It is they that ensure the relationship between the norm of the right, which the legislator has been removed to translate into law and the article of the regulatory and legal act. The semantic gap between the thought, the idea and wishes of the legislator and the result of its activities - the text of the law, leads to the highest degree of negative consequences - to the unaccepting goals of lawmaking, to the unresolving public relations or their incorrect, non-law regulation (contrary to public interest).
The need for the scientific development of logic, style and language of the law, as well as the need to rigidly adhere to them are due to the importance of legal regulation, the role that the system of legislation as a result of lawmaking plays in streamlining social life. The violation of the logic of the law, the inaccuracy of its concepts, the formulation, the uncertainty of the used terms generate numerous requests, entail changes and additions, various interpretations and explanations, cause an unproductive waste of time, strength and energy, while at the same time being a nutrient soil for bureaucratic red tape, allow you to pervert the law and incorrectly Its applied. Logic, style and language of law - elements of legislative equipment, whose functional purpose is to ensure the correct understanding of the regulatory prescriptions contained in the legislation, the correct perception of the subjects of the legal relations of the requirements of the rule of law expressed in law.
3.1 Logic of the Law
The ability and willingness of the legislator competently, logically sequentially present the text of the regulatory act, strictly exist and legally correct style of their design - the mandatory requirement of the culture of lawmaking.
Logics law - The system of necessary connections between the constituent parts of the regulatory act, characterizing it as a single meaning. This is a system of bonds that ensures the semantic unity of the law, its unified semantic orientation, its integrity due to functional purpose. You can select several basic closest interconnected requirements for the logic of the regulatory act.
one). The main requirement to the logic of the law is its regulatory foodHis semantic subordination of a single goal is to resolve a certain complex of public relations.
The system-forming principle is its regulatory nature, the main goal, which unites the law together. It is the regulation of a certain fragment of social relations should be the main logical focus of any regulatory act.
Violations of this requirement, unfortunately, are not uncommon in domestic (and not only in the domestic) system of lawmaking. Most often, such violations are found in the form of presenting the text of the law, in an overly elevated, solemn form, behind which the regulatory prescription is lost. The law acquires too general, an indefinite, pompous nature, for the full regulation of public relations, it is already unsuitable.
The effective and effective means of transforming life, regulating social relations is the only regulatory act, which accurately and specifically determines the empowering and obligations of actors of legal relations, their legal status, clearly formulates measures to ensure the implementation of the prescriptions (legal sanctions, methods of encouraging, incentive, organizational measures).
However, it should be noted that it is impossible to fully and unconditionally refuse the general provisions establishing the principles of legal regulation in a certain sphere of social relations. General declared positions are needed for a better, more accurate understanding of the meaning of concrete prescriptions. They serve as a bunch of rules expressed in the law, defining their social purpose and place in the general system of legislation. Declarative provisions are necessary to express the general principles and objectives of creating a regulatory act. Such provisions in the text of the law should not be placed among regulatory prescriptions, it is more expedient to allocate a separate article for them.
Thus, the logical basis of the law is primarily the regulatory orientation. This provision defines the second requirement for the logic of the law.
2) as a second requirement for the logic of the law, it is possible to logical unity.
Any regulatory act - and first of all, the law should be a single and monolithic mechanism that has a general functional focus on regulating a strictly defined set of social relations and to give them a certain orientation. This certainty of the object of legal regulation is the best guarantee of the logical unity of the regulatory act (and especially this is important for laws), as it causes the unified and holistic nature of its functional purpose. All articles of the law, all its components are subordinated to a single goal - streamlining a strictly defined element of social relations. This ensures not only the logical systemism and the logical unity of a particular law or a subtitle act. The unity and systemicity of the entire system of legislation is ensured, in which each of its elements, each regulatory act occupies a position defined by the subject of legal regulation, each of them has its own strictly defined functional purpose.
Logical unity implies, above all, the unity of the object of legal regulation. The regulatory act should be aimed at regulating strictly defined social relations, its creation must have a strictly defined single goal - to give a certain set of social relations a certain state that meets the ideas of the participants of the legislative process on objective social necessity.
The logical unity of the law or a regulatory act means that it regulates public relations in some one strictly defined area and belongs to a certain regulatory and legal education (industry, subways, institute). The creation of a legislative act, which simultaneously relate to two or more branches of law will be gross violations and rules for the creation of the Act. Regulatory capabilities of such an act will be strongly limited, and the system of legislation from its adoption will suffer greatly. It is also undesirable to also create a regulatory act regulating social relations, belonging to the subject of regulation of several different law institutions.
3). As a third logical requirement to the law, you can allocate it logical systemity and completionWhat acts as a continuation of its logical unity.
The systematic of the regulatory and legal impact, which is the pledge of its effectiveness, implies the systemic nature of the impact of each specific regulatory act. Each law must be an independent completed system that determines the behavior of individuals and their groups. The system of its impact means the presence of a specific internal structure, which is intended to streamline, to put in certain logic stages, the legal regulation process and thereby optimize its regulatory efficiency.
The logical system and the completion of the law implies a binding statement in the legislation of all three elements of the rule of law: hypothesis, dispositions and sanctions. The completed reflection in the legislation of all these three components is a necessary condition for the effectiveness of regulatory prescriptions devoted to the expression and formal consolidation of the rule of law. At the same time, it is not necessary to express all three elements in one regulatory legal act, but in legislation at all should be reflected. The rate of law, which was reflected in a specific regulatory act, should be set forth in fully, otherwise, none of the laws or subtitle acts that are sources will not fully act. Such laws simply cannot be considered as full regulators of social relations, even if the subjects of legal regulation want to subordinate their behavior contained in them, they will simply not always be able to do this. The unfinished, structural and logically definitive regulatory legal order affects the behavior of people one-sided, noncompletely, fragmentary, and therefore with insufficient effectiveness.
four). As the next requirement for the logic of the law, you can allocate logical sequence saying regulatory legal prescriptions. Regulatory capabilities of the regulatory act in many ways depend on the sequence, its provisions are presented as interconnected. Logically, the requirements are logically set out, the requirements allowed to more fully and accurately understand them, providing a more effective psychological impact. This principle involves the harmonious coordination of all legal requirements expressed in the regulatory act, the expression of them in a certain sequence and in the relationship between them. The law is a single design in meaning. Articles and their items, chapters, sections and other components of the regulatory act must flow from each other, each structural component of the law or a sub-commercial act must be organically related to others, to flow from them and complement them. "In other words, the law must be a holistic system, each element of which complements, specifies or develops the previous one and simultaneously serves as the basis for deploying the provisions of subsequent elements."
These requirements for building a regulatory act largely determine its structure, the procedure for presenting the requirements of the norms of law in it.
3.2 Style of Law
The fundamental requirements for the logic of the law determine such an important characteristic as a style.
Style The law can be determined as a system of presenting the text of the law, a set of characteristic features of the words of its meaning. The style of law allows you to formulate its demands optimally, clearly and concisely, which is the key to the correctness of their impact on the consciousness of the subjects of legal regulation, adequate perception and effectiveness of action. The style of the law makes the regulatory act by the regulator of the behavior of members of society, it is a feature that distinguishes the law as an expression of legal prescription from literary works and other texts. These features and define the following basic requirements for it:
1. As the first requirement for the style of the law, it is possible to directive and official. The wording of the regulatory act must wear a volitional, power-binding nature. "The rights are obliged to behave in strict accordance with the instructions of the law, in strictly established the framework of the prescribed ownership. This is not an artistic style, with which images are created or described for or other facts, events, phenomena or processes, feelings or experiencing heroes. This is Style of strict regulations, requirements, orders to implement the law established rules. "
2. As the second required condition for the style of the law, you can allocate logical fullness and completeness text. The regulatory legal order should be in meaning intently expressed and not to leave the opportunity to add an act by, if it is possible to express it, which comes to the unexpected provisions of the rule of law implemented in the form of an expansion interpretation based on analogy. The law should find a place to find a place without exception the attributes of complete phrases, provisions and rules, the subject of legal relations should not need to explain the meaning expressed in the legislation of the legal norm.
The logical integrity of the text means a detailed presentation of regulatory prescriptions in such a way that their meaning is available entirely, without the need to "think" it.
3. From this principle follows the following condition for the Style of the Law: accuracy and definition legal formswhich involves the greatest specificization of the value of the wording and expressions contained in the law. This principle aims to achieve the greatest compliance between the idea of \u200b\u200bthe legislator and the regulatory formulation. "This requirement directly arises from the specifics of the right as a regulator of public relations, is of particular importance for legal activity. The law contains a mandatory standard of behavior, a model of future actions of a person. It is unacceptable for failure and ambiguity. Inaccuracy of the verbal incarnation of the norm, vagueness and lack of uniform concepts and Terms can lead to an incorrect understanding and application of the law, to the possibility of waste from its literal meaning, and this may have a direct impact on the fate of people, the production activities of enterprises and commercial firms, the interests of the state and society as a whole. "
Uncertainty, the overall nature of the requirements of the regulatory act is a nutritional base for lawlessness, the authorities of the authorities and the Union of Citizens.
4. An indispensable requirement for the style of the law is maximum economy optimal capacity, compactity legislative wording. The regulatory act should be short, laconic, have a strict and delivered appearance. Excessively extensive and bulky text, the presence of numerous excessive parts is not at all a prerequisite for the completeness of legal regulation, the effectiveness of the normative legal act, but it makes it difficult to orientation in legislation, creating significant problems with the awareness of the meaning of legal regulations.
Obviously, the requirement of the economy of the text of the legislation applies not to the expression of the ideas of the legislator, the essence of the prescriptions of the norms of law, not their meaning, and their verbal expression, not content, but forms of law. The brevity in law-conducting is not its general and non-specific nature, but the optimal cost of presenting the thoughts of the legislator while maintaining the completeness of its content.
Unnecessary bulky of legislative formulations, "multiformity" of its text, the presence of complex text structures is greatly difficult to use the legislation, sharing and hiding the meaning of the rules of law. Therefore, the uneconomicity and spare space of the regulatory act can not be justified by neither the traditions of the legal system, nor the desire for the completeness of legal regulation or other factors.
5. It is possible to allocate its calm and inconsistency. The regulatory act must be set forth exactly, calmly, without emotions, restrained. Lost, solemnity, rhetoric, pathos are not allowed. The use of hyperball, metaphor, allegory is eliminated. Such a principle of the style of the regulatory act ". Creates an impression of its colorlessness, self, monotonance, formalizations, but this impression is erroneously, for the brightness, expressiveness, beauty and elegance of the style of the law - in the logicality and sequence, efficiency and rationality, motivation, and formal definiteness , in the unambiguity, accuracy and clarity of presenting the meaning of legal prescriptions. "
3.3 Land of Law
The requirements for the logic and style of the law directly affect the language of lawmaking.
The language of legislation is noticeably different from the generally accepted everyday life. Little he looks like a classic literary language. Despite the fact that in legal science it was constantly noted and it was noted that the laws should be written in the usual, accessible to an understanding of ordinary people with the language, during the creation of a system of legislation, a completely specific system of terms is used, which determines the special nature of the language of the law. Of course, the principal differences between the usual language and the language used by the legislator cannot be. However, a honeycomb language due to its meaningfulness and imagery is far from always suitable for a full-fledged formal expression of regulatory prescriptions. The main reason for this is the possibility of several values \u200b\u200bof the same word and phrase, as well as the individuality of its impact. The legislative text needs the definition, certainty and the eligibility of its impact.
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The concept of legislative equipment.
This is a system of rules and techniques for the preparation of normative acts performed on the form and structure, ensuring the necessary coverage of regulated issues, full and accurate compliance of the form of regulatory prescriptions of their content, availability, simplicity, dismisability of the regulatory material.
1. Reducing to a minimum of regulatory acts on the same issue;
2. Lack of contradictions with existing regulatory acts and in the regulatory act itself;
3. The logical sequence of presentation and the relationship of the regulatory prescriptions placed in the act;
4. Availability in the act of legal means ensuring compliance (measures of encouraging, control, dispute resolution procedure, responsibility measures for violation of legal regulations or references to the current regulatory acts establishing them, etc.);
5. Use of identical, unified official attributes (Act name, title, sequence number, etc.) and structural parts (chapters, partitions, parts, articles, items, etc.);
6. The presence in the act of definitions of the fundamental importance of terms (legislative definitions);
7. Lack of reasoning, scientific provisions, declarations, etc.;
8. The language must be accurate and laconic, the same term should always be used to designate the same concept;
9. The act should be made by a simple, clear language, whenever possible by short phrases, should not be used in the act of epithets, metaphors, figurative comparisons, citation and multivalued words and expressions;
10. If necessary, simultaneously with the project, a draft decree is made on the procedure for introducing an act into action. In this project, issues of cancellation (change) of previously adopted regulatory acts (or their parts) should be reflected, the beginning of the action of the act, other issues on its implementation.
The concept and signs of the regulatory act
Under the regulatory act is understood as a document of state authorities, containing the rules of law.
Signs of the regulatory act (distinction from other documents):
1. It comes from the entire population (in case of adoption on a referendum) or from state authorities.
2. Contains the rules of law.
3. It is created in a special, procedural order.
4. Is executed in a certain form.
5. Forms a single, hierarchical system.
6. It is necessarily brought to the attention of the population.
Classification of regulatory acts
To streamline regulatory acts, various classifications and ways to systematize regulatory acts are used.
Basisfor classification:
1. Legal power of the regulatory act.
3. Subjects published by the regulatory act.
4. The volume and nature of the action of the regulatory act.
Legal forcethe regulatory act reflects its place in the hierarchical system of regulatory acts.
The greatest legal force possesses the Constitution of the Russian Federation - the main law of the state.
All many regulatory acts on legal force are divided into 2 subsets:
2. Subscription regulatory acts.
1. Uniform regulatory acts.
2. Comprehensive regulatory acts.
Homogeneous regulatory acts contain the rules of law relating to one branch of law.
Comprehensive regulatory acts relate to different branches of law.
An example of homogeneous regulatory acts:
Labor Code of the Russian Federation
An example of a comprehensive regulatory act:
Federal Law "On Education".
According to Subjectsissued a regulatory act, allocate:
1. Regulatory and legal acts of legislative bodies (laws).
2. Regulatory and legal acts of executive bodies (regulatory regulations).
3. Regulatory legal acts of judicial authorities (decree).
By volume and nature of actionregulatory legal acts are divided into:
1. Acts of common.
2. Acts of limited action.
Acts of common range apply to the entire population of the state.
Acts of limited action apply only to a certain contingent of individuals (for example, on refugees).
Laws: signs and types
Signs:
1. Regulate the most important public relations.
2. Ace as a result of a nationwide will be in referendum or legislative authorities.
3. Possess the highest legal force compared to other regulatory legal acts.
According to legal strength, laws are divided into:
1. Constitution.
2. Federal Constitutional Laws
3. Federal laws.
4. Laws of the constituent entities of the Russian Federation.
Subscription regulatory acts: concept and types
The sub-banner regulatory act is a regulatory act adopted by the executive authorities.
The following types of regulatory legal acts are distinguished in descending order of legal force:
1. Decrees of the President of the Russian Federation.
2. Resolutions of the Government of the Russian Federation.
3. Regulatory legal acts of federal executive bodies (ministries, state committees, federal services).
4. Regulatory and legal acts of the executive authorities of the constituent entities of the Russian Federation.
6. Regulatory and legal acts of local governments.
Action of regulatory and legal acts in time,
space and in a circle of persons.
Action of regulatory and legal acts in timebegins from the moment the regulatory act of the legal act is entitled at the time of termination of the regulatory act.
The moment of entry into force of the regulatory act into force is determined by:
3. After a certain number of days after the publication of the regulatory act.
Termination of the regulatory act is determined by:
1. By guidance on the new regulatory act.
2. After its expiration date specified in the act of act.
As a general rule, the norms of the regulatory act begin to be applied to regulate public relations arising from the entry into force of this act.
There are two exceptions:
1. If the reverse strength of the act is directly indicated in the act of act.
2. Reverse power have acts with the norms of law that eliminate or mitigating criminal or administrative responsibility.
Action of regulatory and legal acts in spacedetermined by the authority of the subject published an act.
Acts that are issued by federal government bodies are valid throughout the Russian Federation.
Acts that are issued by the state authorities of the constituent entities of the Russian Federation are valid only in the subjects.
In a circle of personswhich applies to the action of the act, allocate general and special acts.
General spread their effect on all citizens.
Special - to a certain category of citizens (pensioners, students, etc.).
Characteristics of the main methods of systematization
regulatory acts
Systematization - ordering.
Collision - collision.
Codex - book.
There are the following main ways to systematize regulatory acts:
1. Incorporation.
2. Codification.
3. Consolidation.
Incorporation- This is an association in the collection of existing regulatory legal acts without changing their content.
Codification- This is an activity aimed at the systematization and fundamental processing of existing regulatory acts by adopting a new codified act (codifications are eliminated by conflicts from different regulatory acts).
1. Based on legislation.
3. Charters.
4. provisions.
Consolidation- This is an activity aimed at combining many regulatory acts relating to a certain sphere of social relations, in one enlarged act.
Consolidation is an intermediate step to the codification.
The concept of system of law
All many rules of law forms a system of law.
Under the system is understoodwhole consisting of parts. As a holistic education, the system of law includes all the law valid in the state. The branches of law and institutions of law, but the basic parts of the system of law are acting as part of the right system of law.
Under the industry of law is understoodthe totality of the norms of law regulating any sphere of public relations. The grounds for breaking the right to the industry are the subject of legal regulation and the method of legal regulation.
Right system- This is a combination of branches of law, which expressed the total will of the prevailing class or the whole society.
The structure of law
In turn, each branch of law may consist of subproduces of law and institutions of law. Graphically, the right system is expressed in the following form:
Horizontal structure of lawit is a splitting of the right to separate branches of law.
Vertical structure of law- Hierarchical relationship of various parts included in the law.
Deposit right- A combination of the norms of law governing a specific type of relations within the scope of legal regulation of the industry of law. For example, copyright, hereditary right and other subproduces are advocated as excess civil law.
Institute of Law- A combination of the norms of law regulating a homogeneous group of public relations.
The simple institute of law includes the rules of the right of one branch of law. For example, the Institute of Pledge in Civil Law.
A difficult institution of law includes the rules of law from various branches of law. For example, the institution of property includes the norms of law from constitutional law, civil law, family law, and other industries of law.
Each branch of law has the main institute of law, which defines:
1. Subject of legal regulation of the industry.
2. Consumer principles of law.
3. Tasks of the industry and other general provisions.
Thus, in the constitutional law, the Institute of Constitutional Fundamental Institute (subsection 1 of the Constitution of the Russian Federation) is in the constitutional principle.
The main institute of civil law is the norms of law reflected in the subsection of the Civil Code "Basic Provisions".
The system of law is not a frozen structure. It changes depending on the changes in public relations. It appears new branches of law and institutions of law, die old.
1. Subject, structure and objectives of the course of legislative equipment.
The subject is the legislative technique as a science, i.e., a system of knowledge on receptions, methods, methods, rules and principles of the creation of laws and subtitle acts and their systematization.
The subject is: a) the structure and technology of the legislative process. Including the composition, content and sequence of its stages, etod-g. and tasks, the conditions for their implementation, as well as the requirements for the content and quality of their results; b) organizational structure - the composition and competence of the subjects of the legislative process; c) tasks, functions and organization of the legislation management system; d) functions and organization of the system of ensuring the legislative process. including legal, informational analytical. Documentary. Organizational and technical and other types of secure: e) the tasks and organization of the official incorporation of legislation - the publication on behalf of the competent state bodies of the collections of existing legislative acts systematized in chronological, thematic or otherwise.
Objectives: - formation, consolidation and development of students' new legal thinking, general, legal, legislative culture, high professionalism, as well as other qualities requiring a lawyer for competent actions in modern conditions when creating a regulatory regulatory system.
Lreaming by students of the role of legislative regulation of public relations in society and the need to summarize the scientific basis on the process of forming a system of legislation.
Calculation of the basic principles, techniques and methods of the process of lawmaking.
Mastering the achievements of leading domestic infrared lawyers in the field of legislative process and legislative technology.
Structure (3 subsystems):
1. Technique of lawmaking knowledge - the establishment of the facts of imperfection of the NPU system of and the opportunities of its improvement.
2. Technique of rule-making is a system of receptions and methods to create specific NPA, procedures for their official adoption and approval, + combining them into a single system.
3. Technique analysis of the results of lawmaking - the technique of assessing the correspondence of lawmaking the initial objectives of the process.
2. Legislative process: Essence, concept, legal regulation.
It would be natural to consider the legislative process as part of the process of law quality. Lawmaking is a complex social phenomenon that has managerial nature. This is one of the forms of state leadership by society. As any social process is conscious, targeted activities carried out through the right and legal norms. Speaking of lawmaking as a phenomenon of social and legal, it is impossible to limit it only by the publication of regulations. It covers a wider range of processes: the preparation of a regulatory act, identifying the needs in the legal regulation of certain law of forming public relations.
According to the traditional point of view, law-conducting is the activities of the state aimed at creating legal norms. In the narrow sense, the process of creating legal norms by the competent authorities itself is implied in the narrow sense. In a wide interpretation, this process is "calculated" since the lawsuit and to the practical implementation of the legal norm (preparation, adoption, publishing, etc.).
The law-conducting process is based on certain principles: democracy and publicity of law-making. Professionalism of lawmakes. The legality of law-making. The scientific nature of law-making and his relationship with law enforcement practice.
Lawmakers, as well as every creativity, suggests not only a common culture from lawmakers, but requires special knowledge of them, certain skills in mastering the art of formation and formulating legislation. These knowledge in the global legal theory and practice are referred to as legislative technique, which is a certain system of claims in the creation of regulatory acts (laws and regulatory acts), their systematization.
The result of lawmaking, its product, acts the result - the law. But this result is only an intermediate, primary result, followed by the action of the law itself, which consists in practical regulation of the relevant public relations.
3. The concept, essence and significance of legislative equipment.
In the subjective sense of "technique" means the legal art of finishing the legal material, in the objective - the mechanism of law. Simplification facilitates the assimilation and opens the path to the right application of law. Quantitative simplification includes such technical operations as the decomposition of the regulatory material, its logical concentration, systematic location. R. Iering allocated three main techniques for legal techniques - legal analysis (alphabet of rights), logical concentration, legal design (commandment, interpretation - legal institution and legal concept, legal status and legal principles).
It is significant that the legislative equipment is traditionally considered in the context of law-conducting as one of its elements. This is a system of rules and techniques for the preparation of the most perfect in the form and structure of projects of regulations that ensure the most complete and accurate compliance of the form of regulatory prescriptions of their content, accessibility, simplicity and foreseeability of regulatory material, exhaustive coverage of regulated issues. These include requirements for the form of acts, changing or canceling the previously adopted acts, eliminate the contradictions, the design of the new edition of articles, etc., as well as formal details, structural memberships, specific language, definition of terms, special means of providing norms.
Legislative technique is a system of rules intended to be used for cognitive-logical and regulatory structural formation of legal material and the preparation of the text of the law. In the definition proposed, we can allocate six interrelated elements of this phenomenon: a) informative legal; b) regulatory structural; c) logical; d) language; e) documentary technical; e) procedural.
There are four main directions for the integrated application of legislative technology.
First, the systematic and systematic impact on the legislative activity, when it is possible to carefully and legally correctly form the regulatory facility of the future law. Secondly, legislative technique has an impact on law enforcement activities, contributing to the right understanding of the meaning of laws and the content of legal norms. Thirdly, legislative technique acts as a means of international exchange of legal information. Fourth, legislative equipment serves as a means of studying the basics of law-making and law enforcement.
4. The rules of the legislative process used in the introduction of bills to the legislature authority.
For the first time, the norms of the usual law of ancient Russia were recorded not in the law, but in Russian treaties with the Greeks (Byzantium) 911, 944 and 971. They included certain norms of criminal and hereditary law. Contracts are not divided into articles, this division is made in them by researchers for ease of use. It is possible to note the appearance of some major legal terms in the texts of contracts. So, in Art. 6 of the contract 944 speaks of responsibility for theft "But the law of Greek and the Charter and by the Russian law".
The first legislative act of ancient Russia was the "Russian True", which exists in a brief, extensive and abbreviated editors and in a variety of lists. Like the Russian TRAW agreements did not have divisions on articles. The reception of legislative technology is undoubtedly the regulatory construction of proposals in the text. It is clearly visible to the hypothesis and disposition, which is expressed by the words: "Ox ..., then ..." The word "ashe - corresponds to the current" if "or" if. " Sometimes instead of "Ashe", the words "Ages" are used, "Auger," "a izh". If there are no these words in the proposal, its normative character persists, which can be shown on the example of Art. 1 "Kill her husband's husband, then Mistsch brother's brother ...".
In addition, the new admission of legislative equipment, headlines of articles are introduced in the extension. In contrast to a short edition, where such articles are scattered (Article 1, 19-, here they are collected together. There are in the "Russian truth" and terms of civil law and process. In the title "On Dobol" we can easily learn the term "debt", Relevant to the loan agreement, products or any things. As a lack of legislative equipment, it should be noted that this title is attributed to one Art. 55 of the extensive editorial office, but about the dacha in debt, Article 47, 48, 50, 51 and 119 .
From the procedural terms in the "Russian truth" the term "plaintiff" 10 is most widely represented, and the terms "lawsuit" and "respondent" are not.
6. Rules of the legislative process used in the consideration of draft laws in the legislative authority.
Consideration of draft laws by the State Duma is carried out in three readings, unless otherwise provided by the current legislation or the rules of the State Duma.
The bill prepared for consideration in the first reading and the materials for him to submit a responsible committee are sent to the State Duma by the President of the Russian Federation, to the Federation Council, deputies of the State Duma, to the Government of the Russian Federation and the subject of the law of the legislative initiative, which has made a bill, no later than Three days before the day of consideration of the draft law at a meeting of the State Duma.
The bills, with the exception of the draft laws listed in Article 104 (part 3) of the Constitution of the Russian Federation, can be considered by the State Duma without feedback on them of the Government of the Russian Federation. When considering the State Duma of the draft law in the first reading, its concept is discussed, it is an assessment of the compliance of the basic provisions of the draft law of the Constitution of the Russian Federation, its relevance and practical significance. When considering the draft law, which provides for the costs covered at the expense of the federal budget, the conclusion of the Government of the Russian Federation is obligatory.
After the end of the discussion of the draft law, the proposal is made on the adoption or approval of the draft law in the first reading. In the case of adoption or approval of the draft law in the first reading, the State Duma in the decision on adoption or approval of the draft law in the first reading establishes the deadline for the amendment to the draft law. The deadline for the amendments, as a rule, can not be less than 15 days. If the name of the bill changes in the second reading process, then it is submitted to the Chamber with the new name, and its initial name is given below in brackets. The bill adopted in the third reading should be called in the last approved version. The same requirements are presented to the design of the draft resolutions of the State Duma on the adoption or approval of the relevant bills.
On behalf of the responsible committee, the legal administration of the State Duma apparatus is carried out by a standing lawyer and linguistic examination of the draft law in accordance with the requirements of Article 112 of the State Duma Regulations and prepares conclusion. At the beginning of the second reading of the draft law in the State Duma, the representative of the responsible committee acts. The Council of the State Duma appoints the third reading of the bill for the vote in order to adopt it as a law.
7. Legislative equipment in ancient Rome.
The Roman law system, not being developed and established by the one-time, which has developed during the long-term development of legal practice and the development of jurisprudence, differs from the industry division of legal systems of modernity. The main qualifying sign of the classification of institutions and the general system R. p. Was division into public law and private law.
A peculiarity of law quality in Rome was the legal regulation of the developing production relations mainly not in the procedure of legislation, but by the scientific work of lawyers and the activities of Roman magistrates to resolve disputes between individuals. The legislative acts of the Republican Rome are reduced to the monument of the ancient era - the laws of the XII. R. p. Developed on the basis of discussion and permission of specific cases ~~ incident, which ensured his vitality. Along with this, the Roman private law was based on the right judicial.
In the Roman Emperor, Justinian I was carried out in 528-534. The codification of R. p., which was 3 collectors who were attached to the strength of the Law: Institutions, Digesites and Code - a collection of imperial laws. Subsequently (about 565) to these collections was joined by the 4th Collection - Novels. Only in the XII century. These individual collections of Justinian codification were finally combined called Corpus Juris Civilis (Code of Law of Justinian).
Along with the right of ownership, a detailed and technically developed regulation received in R. p. Commitenty law, especially the contract (Contractus). In R. n. There are certain closed categories of contracts, and special, which have special name names (actions) flow from each contract. The development of the contractual law Roman lawyers satisfied the need developed since the beginning of our era of commercial and general business turnover. The Roman teaching about the contract largely saved its value.
8. Rules of the legislative process used in the adoption of laws.
11. Development of legislative equipment during the period of the new time.
The history of the rights and states of the New Time is the beginning of the modern history of these institutions. It includes a transition from personal-dependent individual and group relations to individual freedom, guaranteed by the abolition of class division and the recognition of the equality of citizens before the law. Traditional industries of Civile and punitive rights are complemented by a new and united industry regulation of the organization and activities of public authority institutions in the center and in places that later receive the name of the industry of the constitutional (sometimes state) law of this country.
Legal Institutions of the New Time continue to experience, directly or indirectly, the impact of changes occurring in society and become one of the important areas of social activity and communication, where the changes related to the transition from the traditional (agricultural) society to modern (industrial) receive their Partial embodiment, support and consolidation. These changes were due primarily to the growth of industrial production and the spread of intensive trading exchange not only within any one country, but also far beyond the limits of individual countries and even historical regions.
Criminal law
Characteristic features: criminal law standards are isolated in certain sections of draft laws; Harsh punishments, widespread use of a simple and qualified (performed to the tormenting method) of the death penalty; The widespread use of unified terminology (the appearance of definitions of the concepts of "crime", "punishment", etc.), the norms of general are located in an associative order, but not yet allocated to a separate unit; The casuality of law is reduced, the crimes standards are listed in the system, allocation of the generic object as a systematic criterion; Receives the development of the doctrine of the subject of crime (including permanentness).
9. Development of legislative equipment during feudal law.
The feudal right is a special historical legal system, which compared with the Ancient Wildlife and Roman law possessed pronounced features:
1. Particularism of the right (disunity of law). Each feudal state had its own, the right, which in turn was heterogeneous, and included several legal subsystems (royal law, feudal law, local law, urban law). There was no idea about the unity of law; Often the rules of law contradicted each other.
2. Communication of law and religion. Feudal right, was associated with religious standards, had a religious rationale.
3. The feudal right compared to Roman law is primitive, inevitable from the point of view of legal technique). The primitiveness of feudal law is manifested in the impurity of the norms, the absence of the presentation of industries, institutes, gaps and conflicts in the right.
4. The basic principle of feudal law was the data that manifested in the legal inequality of individual social groups (noble, non-financial, free - dependent). Sources of feudal law were customs, judicial precedents, church and secular regulatory acts published by the king, codification, Roman law, city lawsuit. A brief description of:
1. The main and most common source of law in the period 5 - 13VV. There were customs that have developed in this area or feudal curia. Customs were writing and not writing, regulating relations between noble laws), and non-profitable, (Zemskoy law). One of the options for customary law was the lawsuit, which were systematized by local customs, which included the norms of civilian, family, hereditary, criminal law. 2. In England, the main source of law, starting from 12V. Became a judicial precedent. From this time, they began to record in special books - scrolls of litigation - court decisions that have entered into force. 3. Legal doctrine was one of the legal sources in England: the treatises of famous English lawyers, on the issues of law. 4. Starting from 14V. In connection with the revitalization of the state of the head of state, the royal law is developing. The norms and rules contained in the advantages of royal authorities (ordinances, proclamation). 5. Since the Roman - Catholic Church and its chapter were subjects of lawmaking, it is personally to allocate such a source of law as church codes in which the norms of canonical (church law) contained.
10. The rules of the legislative process used in the signing and publication of laws.
The signing of the FZ is an official certificate (fastening with its signature) by the President of the Russian Federation adopted by the State Duma and approved by the Federation of federal laws. P. F.Z. It is a condition for its publication. In accordance with the Constitution of the Russian Federation, after approval by the Federation Council of the Federal Law, the last for 5 days is directed to the President of the Russian Federation for signing. The president also heads the federal laws adopted by the State Duma, which were not considered by the Federation Council within 14 days. With the constitutional authority of the signing of the Federal Law, the right to president of the Russian Federation to impose a veto on the law adopted by the Federal Assembly.
Publication of the FZ is the publication of laws in official states, the necessary condition for the adopted laws of legal force. Thus, only those federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly, are applied on the territory of the Russian Federation, which are officially published. The date of adoption of the federal constitutional law is considered a day when it is approved by the chambers of the Federal Assembly in the manner prescribed by the Constitution of the Russian Federation.
In accordance with the Federal Law "On the procedure for publishing and entering into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly", federal constitutional laws, federal laws are subject to official publication within 7 days after their signing by the President of the Russian Federation. Acts of the Chamber of the Federal Assembly are published no later than 10 days after their adoption. The international treaties of the Russian Federation ratified by the Federal Assembly are published simultaneously with federal laws on their ratification.
Federal Constitutional Laws, federal laws are sent for official publication by the President of the Russian Federation. Acts of the Chamber of the Federal Assembly are sent for the official publication by the Chairman of the appropriate chamber or his deputy. Federal Constitutional Laws, federal laws, acts of the Federal Assembly Chambers can be published in other print publications, and also brought to universal information (published) on television and radio, sent to state authorities, officials, enterprises, institutions, organizations transferred to Communication channels are common in computer-readable form. Laws, acts of the Chambers of the Federal Assembly and other documents can also be published as a separate publication.
12. Regulation of the legislative process in the Russian Federation.
In the Russian Federation, the legislative process regulates:
Constitution of the Russian Federation 1993 (Articles 71-73, 83-85, 102-105, 108, 134-137);
Federal Law "On the status of a member of the Federation Council and the Status of the State Duma Deputy of the Federal Assembly of the Russian Federation";
Regulation of the State Duma of the Federal Assembly of the Russian Federation. Meeting of the legislation of the Russian Federation;
Regulations of the Federation Council of the Federal Assembly of the Russian Federation. Meeting of the legislation of the Russian Federation.
Adoption of laws in a special procedure or adoption of certain special laws regulate also:
Federal Constitutional Law "On Referendum of the Russian Federation";
Federal Law "On the procedure for adopting and entering into force amendments to the Constitution of the Russian Federation";
Federal Law "On International Treaties of the Russian Federation";
Budget Code of the Russian Federation.
A special role in regulating the legislative process belongs to the decisions of the Constitutional Court of the Russian Federation on the interpretation of the provisions of the Constitution of the Russian Federation of 1993 relating to legislative procedures. For example, on the basis of the founded uncertainty, in understanding the provisions of Article 107 of the Constitution of the Russian Federation of 1993, the Constitutional Court of the Russian Federation reviewed the case of the interpretation of the individual provisions of Article 107 of the Constitution of the Russian Federation in 1993 and decided:
"one. Under the "adopted federal law" within the meaning of part 1 of article 107 of the Constitution of the Russian Federation are understood:
laws adopted by the State Duma and approved by the Federation Council in accordance with Parts 1, 2, 3 and 4 of Article 105 of the Constitution of the Russian Federation;
laws re-adopted by the State Duma in accordance with Part 5 of Article 105 of the Constitution of the Russian Federation;
laws approved by the State Duma and Federation Council in accordance with Part 3 of Article 107 of the Constitution of the Russian Federation. "
13. Development technique Complete assembly Laws of the Russian and Creating Code of Laws Russian Empire.
After the Cathedral Casting of 1649, the new codification of Russian legislation was carried out only under Nicolae I, which on January 31, 1826 transformed a commission on the preparation of laws into the II branch of his office and again attracted to this work of Speransky. January 19, 1833 at a meeting of the State Council on the completion of the codification, Nikolai I so explained his attitude to this case: "Instead of the essay of new laws, I ordered first to collect well and put in order those that already exist, and the very thing is Importance, take into direct my guide. " In fact, all the codification case was led by Speransky.
The first result of the work of the II of the department was the publication of a full meeting of the laws of the Russian Empire in 1830, which contains all laws in chronological order, starting from the Cathedral Covering 1 to December 25, 1825. It is called the first and content included in 45 volumes. The second meeting, which, as the material accumulates by individual volumes, covers the reign of Nicholas I and Alexander II. From March 1, 1881, the third meeting began to be published. It was a major ordering work that corresponded to the requirements of the scientific principles of legislative equipment and nricseology, then not yet formulated. At that time, it was viewed as a preparatory work to create an arrangement of laws. Another preparatory work was the collection of the current (the meeting included and canceled) legislation on the sections of the membership, i.e., by its sectors. In such historical vaults included all the current laws under this industry, regardless of the time of their publication.
As a result of the processing of these historical arches by 1833, 15 volumes of the Code of Laws of the Russian Empire were prepared, which the state council was recognized by the only current legislation of the country. The Code was submitted to legal force from January 1, 1835. The first edition of the arch is considered to be the Edition of 1832, followed by the publication of 1842, 1857, and so on. "Between the publications, volumes were issued in which the laws came out After the corresponding edition of the arch. The system of the Code consisted of the first division into laws of state and civil, which corresponded to the division of the right to public and private43. In 1893, another 16th volume was added to the village, which included procedural laws, i.e. Judicial statutes 1864
In itself, such a large codification work testified to the development of legislative technology, but on one example you can show how it was improved. In the publication of 1832, a continuous numbering of articles was adopted in each volume regardless of the number included in that acts. It turned out uncomfortable when acts began to be published separate publications, and in the edition of the arch of 1842, the solid numbering was carried out for each act separately. We also note the emergence of alphabetic, chronological and comparative signs to the severity, which was a new legislative technology44.
14. Making bills to the State Duma.
The right of legislative initiative is the ability to submit bills to the legislative body, i.e. the preliminary texts of laws. He corresponds to the obligation of the legislature to discuss the issue of adopting such bills to consideration.
According to Article 104 (Part 1) of the Constitution of the Russian Federation, the law of the legislative initiative belongs to the President of the Russian Federation, the Federation Council, members of the Federation Council, deputies of the State Duma, the Government of the Russian Federation, legislative (representative) authorities of the constituent entities of the Russian Federation. The law of the legislative initiative also belongs to the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Higher Arbitration Court of the Russian Federation on their maintenance.
State and public bodies who do not have the right of legislative initiative, as well as individual citizens have the opportunity to make their initiative bills only through the subjects endowed with this right.
According to Part 2 of Art. 104 bills are made to the State Duma. The initiator of the bill is in the Duma its text in writing. According to the Regulation of the State Duma, the draft law is recorded in the Duma Secretariat and is transmitted to one or more committees. Provides advance mailing of the bill to the deputies of the Duma. The completion of the legislative initiative stage is the inclusion on the agenda of the next meeting of the State Duma to solve the issue of continuing work on the draft law or its deviation. Of particular importance in the activities of the State Duma has the consideration of draft laws on federal taxes and some other financial issues.
This is clearly manifested in the order of their application. In the presence of a conclusion of the Government of the Russian Federation, bills are made to the State Duma: on the introduction or cancellation of taxes; exemption from their payment; on the issue of state loans; on changing the financial obligations of the state; other bills providing for expenses covered at the expense of the federal budget, for example, projects for free Financing costs for various purposes, on the establishment of any benefits to citizens, enterprises and organizations, entailing them at the expense of the federal budget, etc.
15. Features of legislative equipment in the Soviet period.
Legislative technique, being one of the components of law-conducting, cannot be described as absolutely formal, independent of the influence of a particular historical period. The form of the law is usually correlated with its filling.
The most characteristic of the legislative technique of the Soviet period to receive reproduction of regulatory prescriptions. It was often used and consisted in the premises in the legal act of regulatory prescriptions included in previously adopted legislative acts. Republican authorities reproduced certain regulatory provisions of public-union laws in the acts issued by them, complementing and developing them in accordance with their competence.
The bulk of articles, especially in codified legislation, consisted of two or more parts. To build them, the admission (association) in the following diverse forms has always been used.
The connection in one article of all orders relating to a specific institution of legislation can be observed in Art. 7 (on the protection of honor and dignity) of the Civil Code of the RSFSR, consisting of three parts. The combination of all regulatory provisions related to any one question associated with a specific institution of legislation has been widely used in the construction of the articles of the USSR Constitution of 1936, Art, 118 (on the right of citizens to work. The connection in one article of the general provision with special was characterized by the TLL Articles of special Chasta of the Criminal Code of the RSFSR (Art. 154, 163, etc.). The connection in one article of regulatory provisions with abnormative was widely used in the sub-standard rulemaking, there were no legislative acts.
A peculiar type of admission was also considered to unite all regulatory provisions of criminal legislation in one codified act - the Criminal Republican Code.
The opposite admission of the compound is the reception of crushing, which was also used in a rule-making, and and in particular in legislative practice. It is used by any PAZ, when the amount of regulatory prescriptions relating to one narrow question is so large that it cannot be followed in one part of the article or in one article.
Along with the listed methods of legislative equipment, which were intensively used in Soviet law permits, it should be especially stated to the allocation of a common part in codified regulatory acts.
16. Adoption of laws by the State Duma.
The procedure for the adoption of the Federal Law of the State Duma in accordance with its regulations is carried out in three readings, unless otherwise provided by the current legislation or regulations.
So, for example, according to Art. 196 of the Budget Code of the Russian Federation, the draft federal law on the federal budget for the next fiscal year, the State Duma considers in four readings.
During the first reading, its concept is discussed, an assessment of the compliance of the main provisions of the draft law of the Constitution of the Russian Federation, its relevance and practical significance. After the end of the discussion of the bill on the vote, a proposal for the adoption of the draft law in the first reading is set. The bill is considered adopted in the first reading if more than half of the total number of deputies voted during the final voting.
After the Committee reiterates the final draft law to the Chamber, taking into account the comments and proposals made by the deputies at first reading, his second reading is held at the plenary session. At this stage there is a standing detailed discussion of the bill, each of its article and deputies made by the amendments (changes and additions proposed for the initial text). At the end of the vote on the amendments, the presiding leads to the vote on the adoption of the bill in the second reading. If, according to the results of the vote, such a proposal did not gain the necessary number of votes, the draft law returns to refinement to the responsible committee.
The final stage is the third reading of the bill, during which no amendments are no longer permitted. The third reading consists only in voting for or against the bill as a whole. Since the adoption by the State Duma, the bill becomes federal law. This is not a valid federal law, but not a bill, but adopted by the Chamber Act coming to the other chamber.
The federal law adopted by the State Duma is transferred within five days to the Federation Council for its further consideration.
17. The essence and concept of the concept of the law.
According to the concept of the law, this is an "Analytical regulatory model with options for legal behavior, with an exemplary structure of the Act, its connections with other acts, possible consequences and evaluation of the effectiveness of action."
According to the Government of the Russian Federation, in the concept of the draft law, should be identified: 1) the main idea of \u200b\u200bthe bill; 2) the goals of the draft law; 3) subject of legal regulation; 4) the circle of persons on which the draft law applies; 5) new rights and obligations of the above-mentioned persons, including those who previously had; 6) the place of the future law in the system of existing legislation; 7) an indication of the branch of the legislation to which the draft law applies; 8) the indication of the provisions of the Constitution of the Russian Federation, federal constitutional laws and the system-forming laws of the Russian Federation, on the implementation of which the draft law was sent; 9) the value that will have a bill for the legal system; 10) general characteristics and assessment of the state of legal regulation of relevant public relations with an application of the analysis of laws and other regulatory legal acts operating in this area; 11) indication of gaps and contradictions in current legislation, the availability of obsolete norms of law, actually lost strength, as well as inefficient provisions that do not have a proper mechanism for implementation; 12) rational and most effective methods eliminate the existing shortcomings of legal regulation; 13) Analysis of the relevant Russian and foreign law enforcement practice; 14) the results of statistical, sociological and political research; 15) socio-economic, political, legal and other consequences of the implementation of the future law.
1. The concept of the law is the intention of the legislator, which includes the goal - solving a certain social and significant problem, as well as the method (methods) of achieving this goal - relevant legislative decisions (the establishment of rights, responsibilities, prohibitions, budgetary approval, institution state institutions, etc.).
2. The structural elements of the concept of the law decorated in the form of a document should be attributed:
1) the name of the Concept, which includes the name of the future law and, thus, denotes the subject of future regulatory legal regulation; 2) indication on the author (authors) of this concept, for the concept of which is not known, the unscrupulous creators can hide, that is, acting contrary to public interest; 3) preamble, which contains the rationale for this concept and, possibly, the form and structure of the future law; 4) the meaningful part of the concept in which the objectives of the law and the ways to achieve them are set.
3. Along with the concept of the law, it is possible to talk about the conceptual provisions of the law and, consequently, on the existence of the concept of the article of the law and the concept of a separate norm of the law. Because the law itself, as was shown on the example of the appointment of the day of elections to the State Duma, may consist of one article in which only one norm may contain.
4. To ensure high quality of the concept of future law and, accordingly, the quality of this law itself, in the development of the Concept of the Law, it is necessary to use special, scientifically based and proven rules.
18. Approval of the laws by the Federation Council.
According to the results of the discussion of the Federal Law adopted by the State Duma, the Federation Council adopts one of the following decisions: a) to approve the Federal Law adopted by the State Duma; b) reject the federal law adopted by the State Duma.
The federal law is considered approved if more than half of the total members of the Council of Federation voted for its approval. The decision to approve the federal law is issued by the Council of Federation.
According to the results of the consideration of the Federal Law adopted by the State Duma, subject to article 106 of the Constitution of the Russian Federation, compulsory consideration in the Federation Council, presiding a vote on the approval of the Federal Law. In case of insufficient preparations of the issue of consideration of the specified Federal Law, in particular the absence of a transcript of the meeting of the State Duma, documents and materials that were presented when making a bill to the State Duma, the conclusion of the Government of the Russian Federation, specified in paragraph 4 of Article 103 of this Regulation, the Chamber has the right to accept The decision to transfer the question of the consideration of the Federal Law to the next meeting of the Federation Council. The specified decision is made by a majority of votes from the number of members of the Federation Council who participated in the voting, but not less than one quarter of the votes from the total number of members of the Federation Council. If the specified decision is not accepted, the chairperson is obliged to vote on the approval of the Federal Law.
If the fourteen-day period of consideration of the Federal Law, not subject to compulsory consideration by the Federation Council, expires to the next meeting of the Federation Council, the Council of the Chamber has the right to accept one of the following decisions:
a) to charge the President of the Federation Council to send the President of the Russian Federation to sign and publish a federal law, which is considered approved by the Federation Council in accordance with Part 4 of Article 105 of the Constitution of the Russian Federation;
b) Instruct the Chairman of the Federation Council to convene an extraordinary meeting of the Federation Council to consider the Federal Law, according to which the Committees, Commissions of the Federation Council are comments.
The Federal Law and the Resolution of the Federation Council, approved by the Council of the Federation, adopted by the State Duma and the Council of the Federation Council on the five-day period from the date of adoption of the decision of the Council, are sent to the President of the Russian Federation for signing and official publication. The Resolution of the Federation Council on approval of the Federal Law is also sent to the State Duma.
19. Rules for organizing work on the concept of the law.
Not only the adoption of laws, but also the development of their concepts needs certain rules aimed at ensuring the quality of the laws taken.
As for the official rules for developing the concept of the law, they are contained in "Methodological rules for the organization of the laws of federal executive bodies". This document implies that when developing the concept of the draft law, it is necessary: \u200b\u200b- Attracting highly qualified specialists with the necessary knowledge of the current legislation and the practice of its application; - attraction of research organizations; - study, generalization and analysis of economic, sociological, statistical information, carrying out the necessary settlements, accounting for foreign experience; - a thorough analysis of the current legislation in the field of legal regulation, clarifying the causes of insufficient effectiveness of existing legal mechanisms (if available), the definition of gaps in legislation, obsolete regulations or the presence of a multiplicity of acts regulating similar legal relations; The specificity of the arguments indicating the need to adopt the law.
Rules related to the organization of work on the Concept of the Law: 1) Creating a Competent Developer Group of the Concept of Law; 2) setting the tasks to the Developer Developer Group; 3) the appointment of the optimal term for developing the concept of the law; 4) clarification of the problem that is proposed to solve the adoption of the law; 5) clarifying the boundaries of the existing problem; 6) definition of the goal of the law; 7) identifying the causes of the existing problem; 8) the choice of a way to solve the existing problem; 9) Publication of the selected way to solve the existing problem; 10) carrying out an independent examination of the concept of the law; 11) approval (approval) of the concept of the law; 12) determining the optimal place of the future law in the system of existing legislation.
20. Signing and promulgation of laws by the President of the Russian Federation.
The rule of signing and promulgation of the adopted federal law by the President of the Russian Federation, based on the global experience of the relationship between parliament and the head of state in the process of creating laws, is one of the forms of the President's participation in legislative activities and the final stage of the legislative process.
In the case of approval by the Council of the Federation of the Federal Law, adopted by the State Duma, it is sent for five days by the Federation Council to the President for signing and publishing. If the federal law adopted by the Duma was not considered by the Federation Council, then after 14 days from the date of its direction in the Federation Council, the State Duma sends the law to the President for signing and publishing.
The fourteenty-day sentence of the adopted federal law is necessary so that the president can carefully familiarize themselves with its content, attracting scientists and specialists if necessary, to analyze the need and timeliness of his publication and decide on the signing, giving the law to the laws, thereby binding on or rejecting In order for the State Duma and the Council of the Federation again carefully considered the adopted law and taking into account the comments and proposals of the president.
After signing by the President of the Russian Federation, the law should be published within seven days in the prescribed manner. The official is considered to publish the law in the "Meeting of the Legislation of the Russian Federation" and in the "Russian Gazette". When publishing the law, its full name is indicated in these publications, the date of signing is given a full text of the law, which is an exact copy of the original and signed by the President. Federal laws may also be published in other printed publications, published on television, radio, transferred through communication channels, sent to government agencies and public associations.
The recognition of the federal constitutional laws of the rule of supremacy is also expressed in the fact that, being accepted by the chambers of the Federal Assembly, they, as well as adopted amendments to the Constitution, cannot be rejected by the president and returned to the Parliament to a new consideration, which is possible in relation to federal laws. The Constitution obliges the President of the Russian Federation, regardless of whether he has objections on the adopted constitutional law or not, sign it in the editorial office, in which he is accepted by the chambers of the Federal Assembly, and make public. Signing and publishing must be made no later than 14 days after expiration. The publication of the constitutional law is carried out by publishing in the same official publications, which publishes federal laws.
21. Rules for developing the concept of the law.
As for the official rules for developing the concept of the law, they are contained in the "Methodological rules for the organization of the laws of the federal executive bodies", approved by the joint order of the Ministry of Justice of the Russian Federation No. 3, the Institute of Legislation and Comparative Law under the Government of the Russian Federation No. 51 of 01.01.2001. This document implies that when developing the concept of the draft law, it is necessary:
Attracting highly qualified specialists with the necessary knowledge of the current legislation and the practice of its application;
Attracting research organizations;
Study, generalization and analysis of economic, sociological, statistical information, carrying out the necessary calculations, accounting for foreign experience;
A thorough analysis of the current legislation in this area of \u200b\u200blegal regulation, clarifying the causes of insufficient effectiveness of existing legal mechanisms (if available), the definition of gaps in legislation, outdated prescriptions or the presence of a multiplicity of acts regulating similar legal relations; The specificity of the arguments indicating the need to adopt the law.
The rules associated directly with the concept of the law can be attributed to:
The logicality of the law;
Compliance with the laws of the interests of participants in legal relations;
Compliance with the law by the cultural level of participants in legal relations;
Compliance with the law by the material possibilities of the legislator;
The compliance of the law the possibilities of the executive authorities on its implementation;
Definiteness of the prospect of the action of the law;
Compliance with the concept of law with the concepts of laws with higher legal force;
The absence of the laws in the law that can be used contrary to public interest.
Compliance with the above-mentioned rules for the development of the concept of the law is impossible without any special persons (organs) authorized to conduct a conceptual examination of the draft law. After all, not all the subjects of the rights of the legislative initiative have enough forces and funds, and sometimes desires, independently thoroughly work out the concepts of their laws. This feature could take on one of the divisions of the Parliamentary apparatus, as well as the newly created Public Chamber of the Russian Federation.
22. Deviation of laws by the Federation Council.
Deviation of the Federal Constitutional Law approved by the State Duma
1. The decision of the Council of the Federation on the rejection of the Federal Constitutional Law approved by the State Duma may contain:
a) the list of sections, chapters, articles, as well as parts, points of articles and other structural units of this federal constitutional law, for which it is necessary to overcome the disagreements between the Federation Council and the State Duma;
b) substantiation of the decision on the rejection of the Federal Constitutional Law;
c) Proposal to the State Duma to harmonize the method and procedure for overcoming the disagreement arising.
2. The decision of the Council of the Federation on the rejection of the Federal Constitutional Law approved by the Federal Constitutional Law may contain the editorial board of sections, chapters, articles, as well as parts, paragraphs, and other structural units of the Federal Constitutional Law, for which it is necessary to overcome the disagreements between the Federation Council and the State Duma.
3. The Resolution of the Federation Council on the rejection of the Federal Constitutional Law approved by the State Duma, together with the Federal Constitutional Law, is sent to the State Duma within five days from the date of adoption of the decision.
23. The concept and features of the "Language of the Law".
The language of the law is the system of terms used in the formulation of NAP texts.
This rule of legislative equipment prescribes:
The text of the law is outlined in the relevant state language;
The text of the law should not reflect the letter to the letter and emotions of the author, it should be made a universal official style characteristic of the same extent for all laws;
Actions (events) envisaged by law are predominantly outlined in the present time from a third party, for example, "implements", "sends", "signs" ("carried out", "directed", "signed"), and preferably the use of active, not a passive pledge;
The use of the latter may have caused the absence of a complete clarity in some norms of the Constitution of the Russian Federation, who is the subject of alleged actions, for example, in one of the norms, it is not quite clear who decides on the method of adopting the Constitution: "The Constitutional Assembly is developing a draft new Constitution of the Russian Federation which is accepted by the Constitutional Assembly ... or is made to a national vote "(Part 3 of Art. 135);
the text of the law should not contain verbs in the imperative ignition ("do", "perform", "carry out");
The norms of the law should not be made in order form ("implement", "recommend", "to charge", "propose"), which is peculiar to the decree, order, decree, other administrative document;
the text of the law should not contain outdated, jargon ("money laundering"), narrow-professional ("law enforcement", "university"), conversational ("Actually", "as a rule"), shaped ("on hot pursuit") words and expressions;
Variations of generally accepted words in the text of the law are minimized, for example, of the three words "country", "Power", the "state" is used only by the latter, as in the case of the words "Army", "Army", "Armed Forces".
The above legislative technology is fundamental, since they can be combined by many of the other rules that are set forth.
24. Deviation of laws by the President of the Russian Federation.
According to Art. 107 of the Constitution of the Russian Federation: The President of the Russian Federation for fourteen days signs the federal law and will open it. The President of the Russian Federation for fourteen days from the date of receipt of the Federal Law will dismiss it, the State Duma and the Federation Council in the established Constitution of the Russian Federation reiterate this law. If, with a re-consideration, the federal law will be approved in a previously adopted edition by the majority of at least two thirds of the votes from the total number of members of the Federation Council and Deputies of the State Duma, it is subject to signing by the President of the Russian Federation within seven days and publication. This is the so-called attitudinal vet. If the Federal Law of the Federal Law will be approved in a previously adopted edition by a majority of at least 2 \\ 3 votes from the total number of members of the State Deputies of the State. Duma, it is subject to signing by the President of the Russian Federation within 7 days and publication. The Federal Law of the Laws are not subject to the Adjustable Veto-These are the Federal Law, related to the ratification of international treaties and agreements of the Russian Federation, FZ O Fed. Budget of the Russian Federation, FZ about those. regulations.
25. Structure of the Law.
The main structural unit of the law is the article containing one or more norms. The article has a sequence number and can consist of paragraphs, called parts, as well as from points and subparagraphs (having digital or alphabetic designations), while the latter may contain paragraphs.
At first glance, the rule under consideration seems simple, but confusion occurs in it. For example, despite the fact that the articles of the Constitution of the Russian Federation are clearly divided into points (1, 2, etc.), these items are called parts.
In the current law, the article may be grouped by chapters, and in a very voluminous, in addition, by sections.
Codes can consist of a common part containing the norms relating to all the same cases provided by law and a special part containing the norm relating to certain cases.
Articles, chapters and sections can have the names that must be extremely brief and most accurately reflect the essence of the concomitant regulatory material. By the way, this rule applies to the name of the law.
The rules relating to the structure of the article can also be attributed. The items of the article, the essence of which are listed to the subjects, their rights, duties, other or objects, their functions, signs, other, should begin with homogeneous parts of speech (nouns, verbs, adjectives, others), which are defined in one case. For example, in the Constitution of Russia, Article 114 correctly lists the powers of the Government of the Russian Federation ("develops ...", "provides ...", "carries out ..."), as in Article 102 - issues related to the management of the Federation Council ("Approval ...", "Decision ...", "Appointment ...", "Decision ..."), but in Article 83, the powers of the President of the Russian Federation are incorrectly listed ("appoints ...", "takes ... ", represents ...", "forms ...", "at proposal ...").
The regulatory material of the law may precede the preamble (Introduction), in which there are no legal norms, but may contain a brief characteristic of the law, the motives and the purpose of its adoption. The most practical is the indication of the goal of the law that over time will allow to assess its effectiveness.
26. Conciliation procedures in the legislative process of the Russian Federation.
Actually, the conciliation procedure in the federal lawmaking process is expressly provided for by part 4 of Article 105 of the Constitution: "In case of rejection of the Federal Law, the Council of the Russian Federation can create a conciliation commission to overcome the differences that have arisen, after which the federal law is subject to re-consideration by the State Duma."
Of principled significance, part 1 of Article 120 of the State Duma Regulations on the fact that when considering the Chamber, "only the proposals contained in the minutes of the conciliation commission are discussed, and no other amendments are considered.
The effectiveness of the work of conciliation commissions is characterized by the fact that according to the 36 laws of the Commission completed the work of the preparation of a single text.
I think that for most legislative bodies of the subjects of the Federation, the practice of conducting conciliation procedures is of the greatest interest in the event of a rejection of federal laws by the President of the Russian Federation. The Constitution of the Russian Federation, such conciliation procedures are not provided.
In this case, according to the constitutional provisions and article 124 of the Regulations of the State Duma, only 3 possibilities are provided for the Chamber: according to the results of consideration, within 10 days of the rejected law, the responsible committee or a specially created commission of the Chamber may recommend the State Duma or approve the Federal Law in the editorial office proposed by the President or agree with his proposal about the inexpediency of adopting this law, or approve the law in the previously adopted Duma of the editorial board.
Meanwhile, in the letters of the president of the rejection of a law, only fundamental basis for the rejection of the law may be indicated and the absence of specific formulations, or the responsible committee of the Duma may agree not with all these wording, not objectively in principle against the change of other articles. In this case, the most promising is the conciliation procedure.
27. Rules for writing the text of the law.
The technique of writing the text of the law, as an integral part of the lawmaking, facilitates and speeds up the work of the legislator, while the law becomes compact, understandable and convenient for use. The end targets for the application of the technique of writing the law of the law are: the perfection of the structure and form of the law; availability and review of regulatory material contained in the law; accurate compliance of the norms of the law plan of the legislator; Complete settlement of relations that are the subject of the law.
These rules contained in various variations in the works of a number of the above authors are in the fully summarized and to some extent clarified by the author of the dissertation work:
Compliance of the text of the Law "Language of Law";
The structure of the law on the rules adopted in the legislation;
The absence of norms in the law not related to the subject of the law;
Logical sequence of presentation of the law;
Absence in the law of an abnormative material;
Completeness of legal regulation;
Unification of the terms used in the law;
Invalidness of ambiguity of the norms of the law;
Compliance of the text of the law of linguistics rules;
Clarity (or availability) of the law;
Conciseness of the text of the law;
The absence of "duplicate norms";
The logical of the text of the law;
Consistency of the norms of the law.
28. Features of adoption of laws in the Russian Federation: amendment to the Constitution of the Russian Federation, the Federal Constitutional Law, on the ratification of the International Treaty, about the federal budget.
Features of the adoption of the Federal Constitutional Law
The Constitution of the Russian Federation, regulating the procedure for amending the Constitution of the Russian Federation, determines in Article 136 that the amendments to the heads 3 - 8 of the Constitution of the Russian Federation are accepted in the manner prescribed for the adoption of the Federal Constitutional Law, and come into force after their approval by legislative authorities is not Less than two thirds of the constituent entities of the Russian Federation.
The procedure for adopting the Federal Constitutional Law is established by Article 108 (part 2) of the Constitution of the Russian Federation, which consolidates the need to approve such a law by a majority of at least three-quarters of votes from the total number of members of the Federation Council and at least two thirds of the votes from the total number of deputies of the State Duma; The federal constitutional law adopted within fourteen days is subject to signing by the President of the Russian Federation and publishing.
The range of subjects entitled to make proposals for amendments to the Constitution of the Russian Federation, established by Article 134 of the Constitution of the Russian Federation, does not coincide with the circle of subjects of the law of the legislative initiative, established by Article 104 of the Constitution of the Russian Federation. Secondly, in accordance with Article 136 of the Constitution of the Russian Federation, for the entry into force, their approval by the legislative authorities at least two thirds of the constituent entities of the Russian Federation is required.
Federal Constitutional Laws occupy a special place in Russian legislation. The Constitution clearly defines the range of issues on which federal constitutional laws are accepted, giving them an exhaustive list. These are laws: on the conditions and procedure for introducing a state of emergency in the territory of the Russian Federation or in its individual areas (Article 56 and 88); On adoption in the Russian Federation and education in its composition of a new subject, as well as on the change in the constitutional and legal status of the federation (Article 65, 66 and 137); about the state flag, the coat of arms and the anthem of the Russian Federation, their description and order of formal use (Article 70); About referendum (Art. 84) IDR. Federal Constitutional Laws are accepted by the so-called qualified majority in each of the chambers of the Federal Assembly. This means that the constitutional law is considered to be accepted only after it voted at least ¾ of the total number of members of the Federation Council and at least ⅔ on the total number of deputies of the State Duma, while the adoption of federal laws is a fairly simple majority.
International treaties, the decisions on the signing of which were adopted by the President of the Russian Federation, are made to the State Duma of the Federal Assembly of the Russian Federation on the ratification by the President of the Russian Federation. The State Duma considers proposals for ratification of international treaties and after prior discussion in committees and commissions of the State Duma takes appropriate decisions. Adopted by the State Duma federal laws on the ratification of international treaties of the Russian Federation are subject to compulsory consideration in the Federation Council of the Federation. The Federal Law on Ratification of the International Treaty of the Russian Federation adopted by the Federal Assembly of the Russian Federation is sent in accordance with the Constitution of the Russian Federation to the President of the Russian Federation for signing and publication. On the basis of the Federal Law on the ratification of the International Treaty of the Russian Federation, the President of the Russian Federation signs an instrument of ratification, which is bonded by its printing and signature of the Minister of Foreign Affairs of the Russian Federation.
About the federal budget. Having received the projects of relevant budgets from financial bodies, the executive authorities are considered and additions and additions are made if necessary. After studying these documents and work with them, the government makes a draft federal law on the federal budget for the planned year for the State Duma of the Federal Assembly of the Russian Federation. Consideration in the Committees of the State Duma of the budget projects received by deputies together with invited to this work by economists, scientists, representatives of ministries, departments, territorial executive bodies, which prepare conclusions on the projects of the draft budget, contribute proposals for income and expenses. After consideration of the draft budget in the Committees, he with comments and proposals of deputies is made to discuss the State Duma, which can discuss it in four readings.
According to the results of the consideration of the draft federal law on the federal budget in the first reading, the Resolution of the State Duma of the Federal Assembly of the Russian Federation "On the adoption of the draft federal law on the federal budget for the next fiscal year in the first reading". The State Duma, when considering in the third reading of the draft law, considers the costs of the federal budget under the subsections of the functional classification. The State Duma is considering the draft federal law on the federal budget in the fourth reading within 15 days from the date of adoption of the bill in the third reading. When considering the draft law in the fourth reading, amendments to the bill are considered, as well as the quarterly distribution of income, expenses and deficit of the federal budget.
29. Terminology of the law.
The term-word, phrase. When withdrawing any word from the term - phrase - the term loses its meaning.
Requirements: unity of terminology, stylistic neutrality, generally accepted term, stability, correctness,
positiveness, the use of the term in the primary meaning, the positivity of the term. May contain definitions (definitions of the term).
30. The adoption of the law on the referendum of the Russian Federation.
The draft regulatory act or the question of which is compiled to a referendum of which is provided for the referendum, which is provided for by the International Treaty of the Russian Federation. The initiative of the referendum belongs:
1) at least two million citizens of the Russian Federation; 2) the Constitutional Assembly - in the case provided for by part 3 of Article 135 of the Constitution of the Russian Federation; 3) federal state authorities - in cases provided for by the International Agreement of the Russian Federation and this Federal Constitutional Law.
The bulletin is reproduced by the text of the question (questions) of the referendum and the options for the will of the referendum participant in the words "for" or against are noted. The territorial Commission is a protocol on the results of the voting on the relevant section of the referendum.
Results of voting for each site of the referendum, each territory, to each subject of the Russian Federation in the amount of data contained in the minutes of the relevant referendum commissions and directly under the referendum commissions on the results of the voting, are provided to familiarize themselves to any participants in the referendum, foreign (international) observers, media representatives At their request, immediately after the signing of the protocols on the results of the voting, the results of the referendum by members of the Commission of the referendum in which such a requirement was received. These data provides the relevant referendum committee.
The official publication of the results of the referendum is carried out by the Central Election Commission of the Russian Federation within three days from the date of signing the protocol on the referendum results. At the same time, the Central Election Commission of the Russian Federation publishes the data contained in the Referendum Results Protocol.
For ten days from the date of signing by the Central Election Commission of the Russian Federation, the Protocol on the results of the referendum, the Central Election Commission of the Russian Federation in its official printed authority publishes the full data contained in the protocols of all election commissions of the constituent entities of the Russian Federation on the results of the vote.
The decision taken on the referendum comes into force on the day of the official publication of the Central Election Commission of the Russian Federation of the referendum results. The decision taken on the referendum is generally obligatory and does not need an additional approval.
31. Methods of presenting legal norms.
Depending on the substance of legal norms:
1) Certificates - norms giving the right to anything in accordance with the law.
2) obliging
3) evaluating ...
Not "may", but "has the right", etc.
Depending on the generalization:
1) Abstract
2) Casuistic
Depending on completeness:
1) Full and incomplete (with references). The factors are sending and blank.
32. Examination of the draft law: the concept, principles, types.
Expertise-study (legal, managerial nature, etc.), in order to determine the circumstances of the importance for the decision-making. It is carried out by solving the body, persons who are determined. qualifications in accordance with the procedure for conducting (methods).
Types of expertise:
1) depending on the tasks:
A) factual - installation of unknown facts of circumstances
B) identification - identity or distinction of objects
C) Evaluation - in accordance with the specified conditions.
D) prognostic - the consequences of the action and use of the law.
2) depending on the specialization:
A) technical
B) archaeological
C) art historical
D) medical
Principles:
1) Compelling
2) comprehensiveness
3) competence
4) organizational and material security
5) Disinterest
6) Independence
7) Encouraging experts
8) responsibility
9) the obligation to adopt undisputed conclusions
All these principles provide chief Principle Examination of draft laws - objectivity.
At each stage, the examination of bills may have an experiment.
35. Requisites of the Law.
The law has details (necessarily included in it), namely:
The name of the law (better when it denotes the type of regulatory act, its state affiliation and the sphere of legal relations regulated by him, for example, the Federal Law "On Defense");
Entry indicating the date of adoption of the law (number, month, year);
Entry indicating the date of approval of the law (if it was really approved);
Signature of an official authorized to sign this Law (for example, President of the Russian Federation ...);
Record indicating the date of signing the law (number, month, year);
Entry indicating the place of signing of the law (for example, Moscow, Kremlin);
The sequence number of the law (for example, 51-FZ or 2-FKZ).
33. The scope of the law.
The effect of regulatory acts in space, in addition to limiting the action of the regulatory and legal act in time, there are generally accepted boundaries of its action in space, on a certain territory. In accordance with the principles of state sovereignty and territorial supremacy, the regulatory and legal acts published by the highest authorities of the authorities are valid only in its territory. According to the territorial criterion, all regulatory and legal acts are divided into acts, the acts of which applies to the entire territory of the state, acts covering it some part, and the acts of which applies beyond the territory of the country.
The operation of the regulatory act in space can be territorial and extraterritorial. The territorial action of the regulatory and legal act is out of the territory of the state (Russia) or a separate region (Moscow) and is determined by state sovereignty. The extraterritorial effect of the regulatory act is regulated by international treaties and provides for the dissemination of the legislation of this state outside its territory.
Action of regulatory and legal acts in a circle of persons
The procedure for the operation of the regulatory act in a circle of persons is subject to general rule: the law is valid for all persons located on the territory of its actions and are subjects of relations to which it is designed. Important for state-legal theory and practice has the definition of the action of regulatory and legal acts in a circle of persons, finding out the question of who the prescriptions contained in these acts are addressed.
Types of laws in action in a circle of persons: 1. General - designed for the entire population. A number of laws, primarily criminal, apply to state citizens regardless of their location (abroad); 2. Special - designed for a certain circle of persons. Some laws apply to all individual and collective subjects. Others - only to a specific category of persons (pensioners, military personnel, doctors, teachers, etc.). Their action in space and in the circle of persons does not coincide. 3. Exceptional - make seizures from general and special. Heads of states and governments, employees of diplomatic and consular missions, some other foreign citizens (members of the crews of warships, military personnel of military units, etc.
34. Rules for conducting an examination of the draft law.
The legal administration of the legal expertise of the draft federal law made to the State Duma Duma is given only by the Council of the State Duma or the Committee of the State Duma, appointed by the draft law, and the instructions for holding a linguistic examination of the draft law - the responsible committee.
The term of the legal expertise of the draft law of at least 2-3 weeks from the date of receipt of an expertise is received.
In the sense of article 112 of the State Duma Regulations, legal management based on the results of the legal examination of the draft law should prepare a conclusion on the draft law regardless of the presence or absence of a legal and linguistic comments on the draft law.
According to Article 119 of the State Duma Regulations, after adopting a bill in the first reading, the State Duma on the proposal of the responsible committee may adopt the law, excluding the procedures of the second and third readings, in the presence of the legal administration of the State Duma apparatus, reflecting the results of legal and linguistic expertise.
The conclusion of legal administration to the draft law is a mandatory document that the responsible committee must submit to the Council of State Duma together with the draft law in the Council of State Duma to make a bill for consideration by the State Duma in the first, in the second and in the third readings.
Implemented by the legal expertise, employees of the legal administration of the State Duma office, as a rule, are invited to participate in the meeting of the responsible committee only if the laws of the legal administration contains the comments of a legal and linguistic nature that require clarification.
36. Examination of bills in the Russian Federation.
Scientific examination of the bill is a special study conducted by scientists and specialists on behalf of the subject of the law of the legislative initiative in order to assess the quality of the bill and identify the possible consequences of its adoption and action.
Scientific examination of the bill is designed to promote:
1) ensuring high quality, validity, legality and timeliness of preparing bills; 2) the creation of a scientifically based system of regulatory legal acts of the Kemerovo region; 3) identifying the possible positive and negative legal, social, economic, environmental and other consequences of the activities of the laws of the region.
Depending on the subject of research, specific tasks and applied scientific knowledge, scientific examination of bills can be legal, economic, financial, technical, environmental and otherwise. If necessary, complex (with the involvement of scientists and specialists from various science areas) and narrowly special scientific examination of the draft law can be carried out.
At the final stage, experimental editors linguists who own the terminology and the conceptual apparatus "legislation should be attracted to work on the text of the bill.
Examination of the bill involves its assessment from the point of view of the compliance of the Constitution of the Russian Federation (taking into account the interpretation of the individual provisions of the Constitution given by the Constitutional Court), international treaties of the Russian Federation, federal constitutional laws, acts of law, which the legislator itself gave priority importance to other federal laws.
The bill must pass a strict and impartial check in terms of compliance with the system of law (this is especially important for acts that make changes and additions to already existing laws), compatibility and realizability of legal procedures provided in it.
Finally, during the examination, the form of the law should be assessed again, its structure.
37. Criteria for the quality of the law.
In the most general form, the concept, "quality of the law" can be defined as a set of properties, it is necessary to inherent in law characterizing it as a regulator of public relations.
Mandatory for the law is the requirement that they are settled by the fundamental, most significant public relations. The quality of the law as a source of law is a prerequisite for the recognition of the rights contained in it as generally obligatory and existing behaviors. However, in order for the law to be really perfect and ensuring the real achievement of the goals set by the legislators, it is necessary to fulfill another condition - to ensure the proper quality of the rules of law enshrined by law.
Russian laws are thoroughly studied by the properties that the rules of law should have. Among otherwise, such signs, such as regulatory, societulence, completeness and concreteness of regulatory regulation, a representative and obligatory nature, clarity and availability of the Language of the Law, the formal certainty, the accuracy and certainty of terms and formulations, the logical consistency of the regulations of the law and the Constitution RF, effectiveness, compliance with the norms of the laws and the needs of social development, legal and social efficiency, etc.
The quality criteria of the law in terms of language are simplicity, short, clarity and accuracy,
The simplicity of the law of the law is characterized by a direct order of words (for subject to the subject), the absence of bulky structures, as well as the moderate use of involved and particle rollers. The easier the text for understanding, the verses. "It will be better than his execution.
The briefness of the law is characterized by the maximum compressed statement of its text, the absence of repeats and low-informative. x combinations in his text. The shortest criterion focuses the attention of the subject to the essence of the law.
Clarity means the understanding of the text to the reader, which is ensured by the maximum permissible simplicity of the text, and it is impossible to refuse to use legal professionals, incomprehensible parts of the population. The clarity of the law contributes to the correct and complete identification of the information contained in it, ensures the effectiveness of the regulatory prescriptions of the law.
Accuracy means "the achievement of the greatest conformity between the idea, the thought and the embodiment of this thought in the legislative formula."
38. Quality of the law.
The development and kind of "jewelry grinding" of the draft law at all stages of its preparation and discussion is not an end in itself. Ultimately, it should ensure high quality legislative act, that is, compliance with all meaningful criteria and formally legal requirements. After all, the concept of "quality of the law" characterizes the set of properties and connections, which should have any qualitatively perfect law and, accordingly, which must be given to him at the stage of designing lawmaking, therefore this concept occupies a central place among legislative problems. The quality of the law is a determinant of tasks solved in the process of lawmaking, and at the same time criterion for the effectiveness of the prepared bills.
There are two approaches to understanding the quality of the law. Some authors associate the quality of the law with its ability to comply with economic and other social realities.
Another approach to the problem of the quality of the law was applied, which believes that the source basis of this issue is the philosophical category of "quality". This category discloses a set of universal signs that constitute the quality of any phenomenon, the process of nature, society or thinking, and thereby acts as a methodological basis in studying the quality of a particular phenomenon, in this case of the law3.
Thus, in the most general form, the concept, the "quality of law" can be defined as a set of properties, it is necessary to inherent in law characterizing it as a regulator of public relations.
39. The legal and technical features of regulatory legal acts.
Legal equipment is a combination of principles, rules, means, techniques and methods of adequate expression of a certain regulatory and legal content in the form of the text of the legal act.
Legal acts are officially powerful acts (regulatory and individuals), which have generally binding legal force - right-state and law enforcement acts, as well as acts of formal interpretation and systematization of current law.
In contrast to legal acts that contain common truth, in all other texts (a theoretical or practical nature) on legal subjects contain only certain obligations (judgments, statements about the right), not having legal force.
Principles, rules, techniques and methods of legal technicians relate to all legal acts, but in relation to various types of legal acts (to acts of legal entry, law enforcement, right-standing or law-systematizing), they receive a specific refraction due to the originality of the legal content of the relevant type of act, legal and technical characteristics of the textual form of expression of this legal content, etc.
Thus, legal equipment includes, except for legislative technology (and more widespread equipment), also legal techniques for the proper design of the regulatory and legal content of acts in the field of law enforcement, robust and systematization of law.
The basic requirements of legal equipment can be formulated in the form of the following provisions.
1. The rules of legal equipment require that the textual design of all legal acts be to maximize the extent to expressing and presenting their regulatory and legal properties and values, that is, the main thing in the content of different acts, which determines their legal specificity, regulatory-legal meaning and legal force. 2. The textual form of the act, according to the requirements of legal equipment, should express the specifics of legal regulation (and together with the legal interpretation, evaluation, qualifications, etc.) of public relations. 3. The textual design of the legal act should be carried out in accordance with the systemic nature of the right as a whole, with the place and the value of the normative-regulatory content expressed in it in the system of all existing law. 4. The text of the legal act must be appropriately structured. 5. The requirements of legal techniques relating to the language of legal acts are essential.
40. Features of the rules of legislative equipment abroad.
The study of the principles and techniques of legislative technology used in foreign states allows the domestic lawyer, a deputy, a specialist, expert to successfully solve a number of tasks. First, it is quickly and properly to find the necessary foreign legislation on their official details. Secondly, to ensure a correct understanding of the general meaning of the law and the ratio of its norms. Thirdly, to conduct a proper comparison of national and foreign legal norms.
Let's start with the construction of legal acts. With the obvious similarity of many constitutional institutions of European countries, their constitution has a peculiar structure. For example, the Constitution of Belgium consists of nine parts indicated by Roman numbers, and each part of the articles. Moreover, articles may have either membership or share to paragraphs and other elements indicated by Arabic numbers.
The United States Constitution, in which, in addition to the preamble, there are articles with the designation of Roman numbers and Arabic figures as their components. Moreover, dividing the text of the sections does not have internal structuring.
In France, administrative and some other codes are peculiarly built, which contain both own articles and norms and norms "entered" by other laws regulating this attitude. In this case, the article of the Codex gives an accurate designation of this law - its number and date of adoption.
As can be seen, the differences in the structural construction of laws are rather noticeable, and they are explained as the characteristics of the design of the regulatory material (including taking into account the actions of other laws in this field) and the historical and legal traditions of a country.
In foreign states, legislation is not equally structured or executed. Briefness, conciseness in some cases adjacent to the extensive text in other cases.
Another and more similarity in the construction of laws and the formulation of legal norms is distinguished by acts of civil and criminal law into force traditionally inherent in the accuracy of the prescriptions. For example, in building civilian codes of France, Russia, Belarus and even Peru, the Criminal Codes of Germany and France a lot in common. A smaller coincidence is observed in legislation in the spheres of constitutional, administrative, labor and environmental law, where regulatory flexibility dictates more specific methods and structural-normative forms.
And, of course, the differences in the construction of laws generated by the peculiarities of national legal systems ("families" - on the terminology of Ren David). In the Anglo-American system, for example, much more definitions and procedural rules, which are less in the acts of the countries of the continental system. An exception is Russia, where the explicit passion for definitions is tatting a lot of mistakes and legal conflicts.
The expansion of legal relations of parliaments and other bodies of states, as well as the circle of users of legal information, demanded coordination and streamlining actions in the field of legislative technology. An important step in this direction was the creation of December 13, 1991. The European Association for Promoting Legislation, which was established in Bad Homburg (Germany)
Introduction
The real UMC course "Legislator" is intended to give students initial information on the development, writing, writing and design of regulatory legal acts, as well as the technique of organizing and implementing the legislative process in legislative (representative) state authorities. In class, taking into account the material described in this edition, it is assumed to be the practical work of students with the texts of the draft laws under consideration by the State Duma.
The presentation of the material complies with the concept of legislative technology as a set of rules, methods, means and techniques (tools) used by the subjects of the legislative process for the organization and implementation of legislative activities. At the same time, three main types of legislative techniques are distinguished: the technique of conceptual development of draft legislative decisions, the technique of writing and the formation of texts of bills, as well as the technique of organizing legislative activities. Each of the specified species corresponds to a special section of the study manual.
Almost all actual material is based on examples from federal legislation. At the same time, the basic rules, methods and techniques undertaken in lawmaking are studied in the framework of this course, have a universal nature and are related to work (development, consideration, acceptance and publication) practically over all types of regulatory legal acts published in the Russian Federation. This also applies to various levels of rule-making activities: federal, subjective, municipal.
CMD is advisable to use as the basis for the study of the discipline "Legislative Technique". The list of references, as well as the regulatory legal acts necessary for a deeper study of the course, is additionally shown. Since the teaching aids on the subject "Legislative Equipment" are extremely small, in this UMC used and recommended for independent student studies a wide list of literature.
Lecture No. 1.
Legislative equipment as a science as a methodology and as an educational discipline
Concept, object, appointment and maintenance of legislative technology.
The development of the new system of legislation of the Russian Federation proceeds rather difficult and contradictory in the conditions of political and socio-economic reforms. The current situation places special requirements for the effectiveness of lawmaking, the quality of the laws and the entire legislation system. The increase in the role of legislation is an objective pattern caused by the complexity of tasks facing Russian society.
A special place in the theory of law is the question of the content and appointment of legislative (legal) technology, as well as the question of the quality and effectiveness of individual legislation and the entire legislation system. The legislative equipment is based on a system of basic provisions, principles, while it relies on the laws inherent in other sciences: management science, logic, sociology, etc.
In this UMC under legislative equipment It is understood as a combination of rules, methods, means and techniques (tools) used by the subjects of the legislative process for the organization and implementation of legislative activities. It is considered only in relation to the laws. The toolkit of the developer of regulatory legal acts (hereinafter - the developer) is classified on the subject (list of solved tasks and questions), appointment and content. The classification on these features allows you to allocate three main types of legislate: the technique of conceptual development of draft legislation; writing and registration of texts of draft laws; Implementation of legislative activities. Specialists also allocated additional types of legislative technology: technique for making changes and additions to current legislation; systematization of legislation; publication of laws and some other types.
Along with the term "legislative equipment" in the special literature, the term "legal technique" is also widely used. The concept of legal equipment With all the diversity of existing definitions should be attributed to the technique of writing and designing the texts of regulatory legal acts. The toolkit used in legal technician is the most universal and practically applicable to any types of regulatory legal acts. Rules, methods and means of legislative equipment are aimed at achieving all aspects of the quality of laws: legal, managerial, political and social. The instrumental of legal equipment is aimed primarily to ensure the legal quality of laws.
Objects of legislative technologythere are texts of draft laws, as well as the accompanying documents (explanatory note, financial and economic justification, etc.).
The subject of legislative technologyare: the structure and technological logging of the legislative process, including the composition, content and after-thoughtiness of its stages, stages and objectives, the conditions for their implementation, as well as the requirements for the content and quality of their results; The organizational structure is the composition and competence of the subjects of the legislative process; tasks, functions and organization of the management system of the legislative process, including its elements such as targeting, regulatory procedures, planning billing work, coordination of the action of participants in the process, analysis of efficiency and improving the process; functions and organization of the system of supporting the legislative process, including legal, information and analytical, document-rational, organizational and technical and other types of security; Objectives and organization of the official incorporation of legislation - editions on behalf of the competent state bodies of collections of existing legislative acts systematized in chronological, subject or otherwise.
Appointment of legislative technologyis to ensure the effectiveness of the legislative process as a whole, i.e. The fulfillment of the requirements of the effectiveness and systemization of legislation, as well as the optimal combination of its stability and timeliness of the introduction of objectively necessary changes subject to a number of conditions and restrictions that related to the organization of the process, such as completeness of the implementation of the constitutional rights of the subjects of the legislative initiative, compliance with the officially established Procedures, etc. The content of the rules, methods, means and techniques for the organization of legislative activities synthesizes the achievements of legal sciences, primarily the general theory of law, state (constitutional) law, and sciences studying the general issues of the organization of complex activities, such as the theory of organizational systems, management, sociology etc.
The basic principles of legal technicians include:
general principles of regulation (management) in relation to lawmakes:
but) adequacy of legal impactthe essence of the problem situation and its compliance with state policies in this area of \u200b\u200bsocial relations. Act in accordance with this Principle means to ensure: compliance with the subject of legal regulation of the content and boundaries of the problem situation; providing the necessary rights and establishing sufficient requirements for legal relations; compliance with legal regulation of public policy in this area of \u200b\u200bsocial relations;
b) fullness, Requirements and Conferences of Regulation. The application of this principle is designed to ensure comprehensive satisfaction of the need for legal regulation, there is no gaps and omissions in it, as well as excessive provisions in the texts of laws without which you can do;
in) minimization (lack or permissibility) side effectsas a result of legal regulation. The effect of this principle is aimed at preventing (minimizing) of the consequences (primarily negative), not relating directly to solving this legal task;
d) timeliness of regulationwhich means the introduction of the legal act (its individual provisions) into action at the right moment;
e) realizability of legal impactor availability of legal mechanisms, organizational and other relevant resources;
principle of systemism regulationit is intended to comply with the adopted structuring of the right to the industry, subways and institutions, as well as established relationships of legal acts on their legal strength; compliance with the goals and consistency in the content of new and existing legal acts, compliance with the form of a legal act of the competence of the authority made it; The presence of changes related to the adoption of this legal act of changes in existing legal acts;
the principle of accuracy, certainty and claritycontents and forms of established legal relations: adequacy of the expression by language means of the being (concept) of a legal decision, ensuring an accurate understanding (interpretation) of the provisions of the legal act by all subjects of legal relations; the correctness of the execution of the act as an official legal document;
principle of creative approachto the process of developing, writing and designing projects of legislation. It is not by chance that the process of developing projects of regulatory legal acts is called "rule-making", and legislative equipment in the XIX century. In Russia, called "lawscript".
Despite the fact that the set of techniques to use language tools for the expression of certain ideas in lawmaking is seriously different from expressive techniques and funds in fiction, the text of the law is a work, i.e. The product of the creative thought and labor of his authors.
As part of the general requirements of the legislative technology, the author of the bill may choose any words, the order of their arrangement, use different legal structures and methods of presenting legal prescriptions. From this point of view, for the legislator, there is practically no rules for the legislative technology, which it must observe strictly. Most of the rules of legislative equipment are actually recommendations, and only a minor part of them is mandatory, since they were formulated as such in regulatory legal acts.
To implement the principles of development of legal acts in laws, various elements of legal equipment are used, including such as:
the use of certain modes (methods) of legal regulation, species of norms and logical structure of norms. For example, such legal regimes, as a public, permitted, are characteristic of public and private law, individual branches of law and are focused on certain methods of legal regulation - permitting, bindings, prohibition;
the use of various methods of presenting the prescriptions classified according to the degree of generalization of the regulatory material is to the completeness of the use of elements (hypothesis, dispositions, sanctions) of the legal norm, according to the "specialization" (definitive, estimated, dispositive, etc.) of a particular article, on the use internal and external references;
following the laws and rules of formal logic. The main laws of logic (identities, non-contradiction, excluded third and sufficient basis) are used in lawmaking to build both legal acts in general and their separate parts and provisions;
using official-business style. Despite the fact that the texts of legal acts must comply with the general norms of the modern Russian language, the functional and stylistic features of the language of law are implied by official, documentary, maximum accuracy, expressive neutrality, impersonal, non-informative nature, clarity and simplicity of language expression of the legal act; economicality of the use of language agents, the predominance of dynamic, and not static side of phenomena;
compliance with the requirements for terminology of legal acts, such as unity, meaningful unambiguity, stylistic neutrality, systemism of terminology; prevalence and generally accepted, stability, availability, correctness of the terms used;
application of legal structures, sustainable schemes and models establishing the relationship, duties and responsibilities of legal relations;
following certain rules for the use of details and registration of the legal act as a whole, as well as its structural parts, the use of additional structural-semantic elements, such as notes, tables, etc. Thus, at the beginning of legal acts, it is customary to place general provisions that can establish goals, objectives and basic principles of regulation, defining the terms used. The final articles of regulatory legal acts include provisions on the timing and procedure for introducing an act into action, on the cancellation, changes and additions of existing acts in connection with the adoption of this regulatory legal act.
3. Each specific object or phenomenon has a certain amount of properties, the unity of which is its quality. Unlike the philosophical approach to the category "Quality", which is characterized by neutrality in the value attitude, the interpretation of quality in the right is evaluative - high or low, proper or improper quality of the legislation, etc.
It is advisable in addition to the categories "Quality of the Law" and the "legal quality of the law" to allocate as an independent scientific category "Technical and Legal Quality of the Law", which allows to emphasize the attention of scientists and specialists on various aspects of legal quality of laws.
Another great French philosopher S. L. Montesquieu in one of the main writings "On the spirit of laws" (1748), determining the concept of the law as " the necessary relationship arising from the nature of things", Argued that the laws that dominate public life should not be a product of the arbitrariness of the legislator, but to obey certain requirements.
The current regulatory legal act, and in particular the law, is not a mechanical structure consisting of individual parts, but a holistic and inseparable unity of the qualities - legal, social, political, administrative. Analysis of the rules known to the currently and legislative equipment testifies that legal science and legislative practice have developed a corresponding toolkit of the legislator providing all aspects of qualitylaw, and not only legal.
In this way, the technical and legal quality of the law is a set of properties of the form of a legislative act, which cause their compliance with the content and regulatory and legal nature of the law.
The legal quality of the act largely depends on the quality of the activity of its developer (s). At the same time the complexity of the legislative process, the presence of many stages, a large number of participants put forward the problem of unification of rules to the fore. Otherwise, the draft law will change depending on the ideas of each regular participant in the legislative process on the rules of legislative technology.
The quality of the law is characterized by such propertiesand characteristics, so-called quality indicators2, like:
functional suitability, i.e. The normal action of the law in the correspondence of its application;
reliability (safety, justified durability, possibility of making changes). Safety as a state of the impossibility of the onset of harmful consequences for citizens due to the application of the law;
ecology as the impossibility of the occurrence of dangerous environmental impacts from the application of the act;
law enforcement characteristics containing elements of legal and managerial quality (regulativity, systemicity, consistency, clarity, availability, completeness of regulation, imperfection, lack of psychological rejection);
aesthetics of the shape and presentation of the content (compliance with the requirements of the modern Russian language, compactness, etc.);
ease of use of the act;
operational profitability - a suitable level of spending in the process of applying the act.
At the stage of developing an Act, all these indicators are the general and internship technical and legal purpose of the legislator and their achievement should be ensured by the strict implementation of all rules and methods of legislative technology.
One of the important conditions for the effectiveness of the law is to master all modern techniques for creating the rules of law enclosed in various NPA. The system of certain requirements imposed on the process of creating laws and regulatory acts has been developed over the centuries by various states and are concentrated formulated in such a branch of legal knowledge, which is referred to as legislative technology.
The requirements of the legislative equipment are enshrined in regulatory legal acts or may exist in the form of customs, scientific and methodological recommendations.
As a rule, the requirements of legal techniques are regulated mainly in special laws and subtitle regulatory legal acts. In generalized form, such requirements are contained in the Law of the Republic of Kazakhstan "On Regulatory Legal Acts" of March 24, 1998 No. 213-1 (followed by amendments, as well as in the Law "On Parliament of the Republic of Kazakhstan" and the status of its deputies of October 16, 1995 No. 2529 (with subsequent changes).
Also, the rules of legal equipment are contained in the regulations of the Chambers of Parliament and Instructions for Document Management and Documentation Support.
I must say that in late XIX. - early XX century scientists - lawyers paid great attention to the issues of legislative equipment, considering it as one of the classical elements of law.
Recall the book of R. Jering "Legal Technology", published in St. Petersburg in 1905 and is part of the larger labor about the Roman law 1883 in the opinion of the scientist, "what every profan should convince him of ignorance ... Legal method ... It is exactly the lawyer. "
In the subjective sense of "technician" means the legal art of the decoration of legal material, in the objective - the mechanism of law. French Professor FR. Schöd dedicated in 1905 a big article on legislative technology in modern civil and legal codifications. The reason was the conclusion in 1896 by the processing of the German Civil Code.
Foreign experience of legislative equipment is useful and very instructive. In many European countries, the rules concerning not only the methods of registration of legislative texts, but also prepare them from the point of view of the right choice of the subject of regulation and the form of the act. Relevant requirements received a general binding recognition.
For example, on June 10, 1991, the Federal Minister of Justice of Germany approved the "Directory on Compliance of Laws and Decisions to the current law and their uniform design."
The recommendations given the characteristics of the criteria for determining the subject of regulation, concepts, basic and auxiliary funds, the formulation of legal prescriptions, the procedure for compiling primary law and change law, legal decrees and publication of the new editions of the laws.
In Poland, France, the Czech Republic, Hungary has technical and legal rules contained either in the regulations of parliaments or in special documents of governments and ministries of justice.
A peculiar unification in this area contributes to the recommendations of the European Association for Legislation, the Glossary of the Council of Europe on local governments, etc.
Legislative equipment is a rules system intended for both informative and regulatory and regulatory formation of legal material and the preparation of the Law of the Law. In such a definition, six interrelated elements can be distinguished: informative - legal, normatively structural, logical, language, documented - technical, procedural.
Each of the elements contains a set of requirements - rules that should be strictly observed. Their use, taking into account the stages of the draft law, should be consistent and interrelated.
The cognitive element means the definition of the subject of legislative regulation, the choice and analysis of processes, phenomena and relations that may be the object of law. Justified from the following circle of legislatively regulated relations:
High social significance of them for society, state and citizen; b) stability; c) primary regulatory regulation;
Predestination of constitutions;
The eligibility of the subject of legislative activity.
These constituents are also associated with the right choice of the form of a legal act, taking into account its place in the legal system and classification features of both official and doctrines.
Legislative equipment is based on the practice of law-conducting, and scientifically based funds, rules and techniques for the preparation of the legislative act performed in shape, structure, the status of legislation, ensuring the most complete and accurate compliance of the form of regulatory proposals to their content.
In other words, legislative equipment is a technique for the preparation of high-quality legal relations of the draft law. In this sense, the legislative technique is the application of approved practice, a scientifically based system of rules and techniques of the most rational design of the law, respectively, its nature and purpose.
According to individual authors, the concept of legal equipment is broader in their meaning - the concept of funds, receptions and rules that are used to create and design both regulatory legal and law enforcement, interpretative and other legal acts.
That is, depending on the types of legal activities, it is possible to distinguish between the types of legislative technology.
So, in relation to laws, it is necessary to talk about the legislative (legislative, law-making, normative) technique.
Legislative technique as a system of certain requirements contains:
Rules for the construction and registration of legal acts;
Techniques and means of formulating the norms of law and other regulatory prescriptions;
Language and style of legal act;
Rules of publication (promulgation) and systematization
The other type of legal equipment, law enforcement, includes:
Rules for the design and construction of law enforcement acts, ways to legalize documents;
Methods and techniques of interpretation of legal norms and acts;
Methods for the resolution of collisions in the right and overcoming the gloam;
Methods of procedural and procedural registration of legal practice.
Conditionally legislative equipment is distinguished by:
Technique presentation of the will of the legislator;
The technique of its documentary.
Thus, it should be accepted with the opinion that the concept of legal equipment is wider than the legislative technique, because The latter contains only the techniques and rules for the adoption of laws and other NPA. Whereas the legal technique also suggests the rules of systematization of legislation, the rules for issuing law enforcement acts, etc. But most often, legislative and legal techniques are considered in the literature as synonyms.
It is clear that the legislative technique is not limited to the technique of drawing up the draft law. It permeates all the stages of lawmaking, and also provides activities to streamline legislation. Therefore, we will use the appropriate understanding of the legislative technology. At the same time, agree that legislative technique as a technique of working with (regulatory) legal acts - the most developed, formed species (section) of legal equipment, denoted by the traditional, commonly used thermal term
Culture (quality, perfection) of legislative technology is evidence and indicator of the general and professional legal culture of society. The level of legislative equipment is largely due to the quality of laws, and through this is the state of legality in the country, the effectiveness of the rights, the degree of guaranteed of the rights and freedoms of citizens.
Following the principles and rules of legislative technology makes it possible to formulate and arrange legal norms in such a way that the will of the legislator (ideally, it should correspond to the general will - universal interest) is adequately displayed in the norms, and its true meaning does not disperse with textual formulations. The equipment of the arsenal of legislative equipment excludes ambiguity, ambiguity, such formulations, ensures their availability and recognition.
Accordingly, the tools that is specific for legislative equipment should be allocated to be distinguished in its content as the choice of external form of legal norms; selection of legal regulation methods; technical means; Technical techniques other components.
The element of legislative technology is the normative structure of the text of the law. This refers to a clear sequence of operations. These include the actions on the development of the Act composition, the establishment of its components, formulating titles (titles) of legal prescriptions (norms), the use of references and other norms of "legal ligaments", the definition of methods and the procedure for the entry into force, the abolition and changes of other legal acts. Let us explain more detailed.
Taking into account the many years of practice and scientific developments, we can recommend the following rules for the development of the structure of the Law: to allocate the headline, preamble, regulatory prescriptions, final and transitional provisions in law as its component parts. It can be chapters and articles; sections, chapters and articles; Parts, sections, chapters and articles. Such membership is predetermined by the volume of normative material, but provided that the primary norm is the primary cell.
Here are mandatory requirements, are:
Regulatory construction, expressed in the structural organization of legal prescriptions (hypothesis, disposition, sanction), in the use of their different varieties ( regulatory, guardious) etc.;
Legal construction is a typical model reflecting the legal state of a structurally organized phenomenon of legal life.
In other words, the content of the legal design is made up of a certain structure of the tools and methods of legal impact, which only in their systemically logical interaction ensure the achievement of the desired result. The necessary legal means are built in it, like atoms in the molecule, in a particular sequence and interconnection, into a logically completed circuit.
Among the methods of presenting legal prescriptions received the greatest distribution abstract and casuistic, as well as direct, sending and blank.
The issue of references is very important in the legislation. With their help, system links are provided between the norms and acts. In practice, unfortunately, a lot of errors are allowed in determining the types of reference.
Removable reference to the norms of the law when it is necessary to ensure the link between its common and specific, special provisions. Squeezing to legal acts of higher legal force are justified when it is necessary to identify the minority source of this law. There are references to international acts ratified and approved by Russia and imposing obligations to it requiring them to fulfill the adoption of domestic acts. References to the low-legal force acts are justified when it is necessary to lengthen " legal communication " and determine the grounds for the publication of a new law or give an instruction to accept a subtitle act.
By its volume, references can be made to a specific law as a whole or its part, to the law in a broad sense, to the law. They concern both existing and alleged legal acts. Moreover, in all cases it is necessary to observe the measure, not allowing errors in choosing their species, as well as redundancy, ignoring or underestimation.
It is very important to remember that the legal design becomes efficient if the subjective rights of participants in the future legal relations are balanced by legal duties and guaranteed the possibility of applying adequate legal liability.
Documentary machinery
The documentary technique involves the structural organization of legal text and the design of official details. For this proposal, they are combined into logically related paragraphs, parts of articles, articles, paragraphs, chapters, sections and parts. The purpose of such a structural rubrication of the regulatory act is to give it a composite completion and clarity, which allows you to quickly navigate in the content. The preambles of large regulatory acts contribute to a certain extent. They formulated the main objectives and tasks of the adoption of the act, its specificity clarifies.
Attention should be paid to the specifics of legal technological techniques in different branches of law. Their diffraction is due to the unequal object and methods of legal regulation.
For example, in constitutional legislation, the norms of definitions are more applied, norms - goals and norms - principles, and the norms themselves are often consisting only of dispositions. In civil and criminal legislation, traditional is strict and detailed structuring of institutions and norms.
The official nature of the legal act is confirmed by the allocation of certain details: the names of the act, its title, the dates of adoption and the introduction into action, the ordinal number, signatures, printing.
The conclusion that we can do is ensure that the rapid and large-scale development of the legal sphere of society leads to a sharp increase in the volume of the regulatory and legal array. Citizens and their associations, state bodies and business entities are concerned with the law.
However, the quality of laws remains low and to a considerable extent - due to the explicit underestimation of the role of legislative technology. As a result, many legal conflicts arise in the process of lawmaking and enforcement, which could be prevented. But the overwhelming majority of civil servants, deputies, specialists and experts still do not own the techniques of legislative equipment, and they are not trained. However, the technology of developing laws itself requires a serious update today.
No wonder in modern literature on the theory of law, legislative equipment is traditionally considered in the context of law-conducting as one of its elements. In general, the legislative technique is recognized as an important factor in the optimization and effectiveness of legislation.
Lecture 13. Language of the Law
Legislative equipment includes such an element as the language of the law. We are talking about a wider phenomenon of the right of law as a special logical - the lexical system of speech. This problem has been developed in legal literature. This is an understanding of the legal language as a specific, the words in which the proposals constituting the capacious legal formulas are formed. Briefness, concentration, unambiguity, simplicity of understanding is the most important requirements for this kind of language. On the other hand, it should be strictly observed "Language prohibitions" - avoid metaphors and figurative expressions, archaisms and dialectisms, foreign words and terms, simplifications and conditional phrases. Prescriptions are better to express through the urgent - prescribing and stating - prescriptive ways.
The culture of legislative activity implies a logical sequence of presentation of the text of the law, strictly seasoned professional style and language of the law and at the same time its simplicity, accessibility to the most common people. Violation of the logic of the law, the inaccuracy of its wording, the uncertainty of the use of terms generate the need for its interpretation and clarification, lead to distortion of the meaning of the law and abuse.
The text of the law cannot be unfinished, leaving the possibility of its arbitrary "add-on" or "expansion". Other features of the style and language of the law are its policy and official. In the direction of the style of the law, its official, fixing the sovereign will of the state is embodied.
The main object of legislative technology is the text of legal acts, the informational embodiment of legal prescriptions. When making it, it is important to take into account that the content of such prescriptions (spirit) and the form (letter) correspond to each other so that there is no ambiguity, ambiguity. The legislative equipment is intended to structure legal material, improve the language of legal acts, to make it more understandable, accurate and competent. In many respects, it is the level of legislative technology that symbolizes a certain level of legal culture of a particular society.
The technique of presenting the will of the legislator involves the observance of syntactic, stylistic, linguistic and terminological rules. This is due to the fact that the main, dominant method of expression of legal norms is a written speech.
The initial unit of text consisting of individual words and phrases is the proposal. It is the proposal that is able to express the completed thought. Its design should not be unnecessarily complex (overloaded involved and particle inclusive turns, complex proposals, etc., which imperceptives the perception of the will of the legislator), nor artificially simplified. All members of the sentence must be agreed among themselves.
The text of the legal act should differ simplicity of style, clarity and shortness of wording, the presence of stable phrases ("if otherwise not provided ...", "in the manner prescribed ...", etc.). The language of the text must correspond to the method being installed on the addressee, which involves appropriate use of obligations, permissions and prohibitions.
For legal acts are characterized by the policy and officialness of the style. Therefore, the language and style of regulatory, interpretational, law enforcement and other legal acts should not differ from each other.
When presenting legal instructions, three types of terms are used: commonly used, specially technical and special legal ones. However, despite this diversity, all terminology must be a clear addressee, generally recognized, unequivocal, sustainable, tested and adequately reflective certain concepts. Unlike commonly used expressions, the terminuses should be inherent in limited meaningful specialization, contractual definitiveness and semantic accuracy.
As part of the concept of the law, the "set of concepts", which are supposed to be used. This is primarily scientific and legal concepts developed by legal science and necessary for the correct construction of the law. Their underestimation and ignoring lead to errors and legal contradictions.
Thus, the language of the law is the only way to express the legislator's thought, and lawlessness is based on legislative activities. Language is the main means of formulating the legal norm. No legal norm as a result of legal thinking can be designed without a specific system of concepts that give the legal norm of a logical sense, determine its logical movement in practical application.
The system of state requirements for the language of the law is a significant guarantee of its quality. The language of the regulatory act should be understood and commonly used, at the same time it needs to be clear, and clear, brief. The logical of the law of the law is a general requirement for the rule-making process is achieved through the clarity of the Language of the Law. It must be so simple that every citizen can accurately and correctly understand the rights and obligations that the legal norm generates for him, the general meaning of the legal prescription, and have a clear installation for its implementation. But there is a danger of excessive simplification of the legal language, which can lead to his vulgarization, to obey the correct verbal expression of some subtleties of legislative regulation. The availability of the Language of the Law can be expressed in two main criteria:
I. Everyone must accurately and correctly understand their rights and obligations that the law creates.
2. Everyone must understand the general meaning of a legal instruction in connection with its purpose in the social norms system.
Laconism is another basic requirement for the legislator language. The law should have a strict regulatory content, because His goal is to develop regulatory prescriptions that determine the behavior of people. The legal language does not tolerate verbal repetitions, complicated revolutions, excessive epithets. But the laconide of the prescriptions should not go into incision with the completeness of the reflection of state will, which is achieved through the use of a conceptual (terminological) apparatus.
The requirement of the accuracy of the language is the most complete and correct, reflection of the essence of the legal prescription. Accuracy involves the stylistic and grammatical loyalty of the legal language, the proper use of words and the relationship between them.
For the most clear idea of \u200b\u200bthe committed legal language, it should be referred to to the definition of the legal definitions themselves constituting its basis. Legal definitions should adequately reflect the essence of the phenomenon defined.
This determines the value of such a logical admission as a generalization under the normative-legal angle of view. The complexity lies in the fact that absolutely all signs of the studied phenomenon embrace, as a rule, is not possible, and the developed legal definition should be correct, i.e. Do not disperse with objective reality, it is optimal and fully reflected.
Unfortunately, legal definitions in the current legislation are not always distinguished by scientific perfection. There are, in particular, the definitions are logically inconsistent, not fully or incorrectly reflecting the essence of one or another phenomenon.
The need for legal concepts is no doubt, despite the difficulties of their understanding for non-specialists. Therefore, it is not necessary to overcess to the test of the law with legal concepts, if they are easily replaceable, do not distort the essence and meaning of the law. It is impossible not to take into account the circumstance that legal concepts are only a means of legislative technology with which the prescriptions of the law are expressed. Therefore, the task of the legislator is to achieve maximum accuracy and accessibility to understand the prescriptions of the law by all, to whom they are addressed.
At the same time, simplicity of presentation of the law should not be carried out due to its completeness and accuracy. The law often regulates complex public relations arising from the implementation of political and legal reforms, as well as in cases where international obligations are included in the legislative framework, and, therefore, new concepts and terms appear. In a word, the professionalization of the legislative process is due to the diversity and the increasing complexity of social connections.
The law often uses the definitions of legal concepts, they are set out either in the general part of the Code, or in the general provisions of the law, which is very correct. At the same time, legal concepts and their definitions revealing should be based on a specific consensus. Words and expressions with legal importance should be used in the same sense in all legal acts.
In the field of legal relations, disagreements in determining concepts are not allowed, this would undermine all the criteria for the legality of the formulation and application of legal norms, which acquires particular importance at the modern stage of reforming the legal system, when many new legal concepts appear, old forgotten terms are reborn. However, this does not mean that all legal concepts should be enshrined by law. Certain legal terms that have fundamental importance have long established and are contained in all textbooks. That is, many legal concepts can successfully function on the basis of generally accepted definitions contained in qualified scientific comments, theoretical works of lawyers - scientists.
It is much more serious about the translation of the texts of legislation on the state (Kazakh) language. It is no secret that almost all laws and other NPA are written in Russian and then translated.
The current situation there is a need to create a serious terminological dictionary of legislation both in state and in Russian.
By the way, such first experience is already. The terminological dictionary-directory of the legislation of the Republic of Kazakhstan in Russian has been published in Astana in 1998. His compilers are candidate of law sciences Idrisov K.Z. and Isaeva V.S., who worked at that time in the Office of the Parliament of the Republic of Kazakhstan.
Often, laws use too many special legal concepts without expanded definition. Therefore, it is important to determine the technical methods of presenting legal definitions in the laws. In practice, the use of laws often arise difficulties due to the definition of terms with legal importance, such as "Large Family", dependents, "relatives", "family members", etc.
There is an opinion that all legal concepts of key values \u200b\u200bmust be subjected to legislative definitions, i.e. The concepts with the help of which is comprehended by both the overall target meaning of a specific legislative action and the operational meaning of its logical components.
General legal concepts must be abstract and at the same time fairly specific. The most common concepts are the constitutional concepts of general labor importance ("sovereignty", "the right nation on self-determination", "Property", "Freight of the Word", etc.), less general - intersectoral concepts followed by industry to some extent Private concepts. Another necessary requirement for legal definitions - they must be discursive, i.e. in general logical "clutch" with preceding generally accepted definitions.
All legal concepts, one way or another, are interrelated. Some concepts can be compared by the semantic value, others, in a certain way to intersect, the third - to be coented, etc.
Each concept is in a continuous logical movement, which is due to the semantic clarification, change. The task is to, in accordance with the goal of finding such a definition, which consistently reflected the most significant signs of one or another phenomenon and, therefore, guaranteed reliable use of them in the law enforcement process.
Currently, the legislation in the rule includes the use of words "as a rule", "taking into account", "usually", "corresponding" and D.R.
These expressions embedded in the legal context, even before applying the legislative act, discover the wide opportunities for its violation or incorrect interpretation.
Instead of broad exclusion transfer, the need to be quite substantiated, open spaces to the subjective interpretation of the law. Naturally, there is no certain criteria to assess the clarity of the legislative act. In some cases, this issue is solved by a body or face that will apply the law, but the limit of this subjective understanding of the law depends on the legislator, the possibility of his situational interpretation of the law enforcement. It seems that through legal definitions it is necessary to extremely clearly and clearly state the requirements of the regulatory act, which largely predetermines its future life.
In a word, we are talking that to achieve the accuracy of legislative tex, it is necessary to use the rules of legislative technology relating to the language of the law, to use terms having a strictly defined value.
