Law and modern states 2013 #5

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LAW AND MODERN STATES Comparative Studies Journal

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LAW AND MODERN STATES

Comparative Studies Journal

FOUNDER: Consulting and Legal Protection of People Foundation ISSN 2307–3306 DOI: http://dx.doi.org/10.14420/

Certificate of Registration: ПИ № ФС77-49248 issued by Federal Service on Supervision at the Field of Communication, Information Technology and Mass Media Subscription Index in the Rospechat catlogue: 70711 E-mail: law_and_modern_states@mail.ru Journal is included into the Russian Cite Index: (http://elibrary.ru/publisher_titles.asp?publishid=10666) Journal «Law and modern states» is published by Graphic Visions Associates, Gaithersburg, MD, USA 20877 and is located on the official website of the Founder: www.bar-association.ru if texts reprinted, reference to Law and Modern States Journal is compulsory. All the published materials may not express standpoint of the Founder and the Editorial Board.

EDITORIAL BOARD: Svetlana Boshno, Doctor of Legal Sciences, Professor (Moscow) William E. Butler, John Edward Fowler Distinguished Professor of Law Dickinson School of Law, Pensylvania State University (USA) Olga Belousova, Doctor of Economics, Professor (Moscow) Marina Davydova, Doctor of Legal Sciences, Professor (Moscow) Kadyrbech Delokarov, Doctor of Philosophical Sciences, Professor, Honoured Science Worker of Russian Federation (Moscow) Ekaterina Dogadailo, LLD, Ph.D (Jurisprudence), Associate Professor (Moscow) Jenny M.T. Hardjatno, Doctor, ProfessorUniversity of Indonesia, Director of Center of European Studies University of Indonesia, Jakarta (Indonesia) Abulfas Guseinov, Doctor of Legal Sciences, Professor Baku State University (Azerbaijan) Marina Markhgeim, Doctor of Legal Sciences, Professor (Rostov-on-Don) Elena Nazarova, Doctor of Sociological Sciences, Professor (Moscow) Sergey Pavlikov, Doctor of Legal Sciences, Professor (Moscow) William E. Pomeranz, Doctor of Legal Sciences, Ph.D., Deputy Director Kennan Institute (USA) Igor Ponkin, Doctor of Legal Sciences, Professor (Moscow) Valery Rybalkin, Doctor of Philology, Professor Kiev National State University, Head of Division of National Academy of Sciences (Ukraine) Alevtina Shevchenko, Doctor of Political Sciences, Professor (Moscow) Olga Tsybulevskaya, Doctor of Legal Sciences, Professor (Saratov) Andrey Vassoevich, Doctor of Philosofical Sciences, Ph.D. (Economics), Professor (St. Piteresburg) Elena Vinogradova, Doctor of Legal Sciences, Professor (St. Pitersburg)

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CONTENT EDITORIAL Boshno S.V. Russian Science Citation Index (DOI: http://dx.doi.org/10.14420/en.2013.5.1) THEORY OF LAW Zabelina D.V. Statute in Russian Law (a Brief History) (DOI: http://dx.doi.org/10.14420/en.2013.5.2) Boshno S.V. Law System and Legislation System (DOI: http://dx.doi.org/10.14420/en.2013.5.3) STATE AND ADMINISTRATION Bashlakov-Nikolayev I.V. On Development Strategy of Competition and Antimonopoly Regulation in the Russian Federation (DOI: http://dx.doi.org/10.14420/en.2013.5.4) Nagdaev A.Yu. Practicability of Usage of Several Types of Electronic Signatures During Work in State Information Systems (DOI: http://dx.doi.org/10.14420/en.2013.5.5) LEGAL PROBLEMS IN CORRUPTION PREVENTION Altunin S.M. Procedure of Arrangement of Conflict of Interest in Federal State Authority Bodies (DOI: http://dx.doi.org/10.14420/en.2013.5.6) Tatishvili T.M., Hidzev A.T. Comparison of Methods of Anti-Corruption Expert Examination Established by the RF Government and Adopted by the RF Constituent Entities (DOI: http://dx.doi.org/10.14420/en.2013.5.7) COMPARATIVE LAW RESEARCH Magomedov R.Yu. Public and Private Legal Acts (Comparative Study of the USA and the RF) (DOI: http://dx.doi.org/10.14420/en.2013.5.8) Doronina O.N., Tarba S.V. Comparative Study of Licencing Activities in the Field of Nuclear Energy USE in the RF and the USA (DOI: http://dx.doi.org/10.14420/en.2013.5.9) Markheim M.V., Derevyanko P.A. Paternity in Constitutional Contexts of Foreign Countries (DOI: http://dx.doi.org/10.14420/en.2013.5.10)

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EDITORIAL RUSSIAN SCIENCE CITATION INDEX DOI: http://dx.doi.org/10.14420/en.2013.5.1

RSCI – The Russian Science Citation Index is a bibliographic database of scientific publications by Russian scientists developed in response to the challenges of modern times in the administration. At the same time, the RSCI is a realization of the science-metric method of the changes in the effectiveness of scientific activity.

In the cycle of our editorials, we introduce our readers to the novelty of the administration of scientific activity. Following DOI (editorial in № 3, 2013), it was the RSCI’s turn. In this article, we address the topic of indices and their role in the modern scientific and research world.

All the good times, when authors thought only about the scientific value and originality of their works, have passed. When meeting, scientists used to discuss the new issues that were described, what to research and which books to read or to write. However, as a «scientist», one can now only ask another «scientist» «What is your h-index?» Only people tend to be incompetent; to quote a character in a famous movie, say: «Mind your Ps and Qs!» Further, if, three years ago, the majority of scientists would respond in such a way, today, really outstanding scientists, who no longer need to measure their index and other mechanistic evaluations, can only be forgiving. Others measure and reflect in this way as well.

We have replaced all the variety in evaluations (new, interesting, useful, etc.) with one measuring device that has an incomprehensible scale.

Our attitude towards the phenomenon of indexing is inconsistent enough.

On the one hand, fussing around has contributed nothing to science and will make nobody a scientist. But, on the other hand, it is impossible to not be modern and to not participate in the trends that are evident; because of political decisions, they cannot be dismissed. However, there is also the «third» issue, which is the benefit to researchers. As applied to the RSCI, we see the benefit in the opportunity to evaluate the requirements of our work by reviewing citations, to add the publications that are issued in journals that are not a part of the RSCI and to combine works that have been created under various last names (which is relevant to individuals who have changed names) and that are affiliated with different places of work.

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6 In reality, the administration of scientific activity has become a problem, as it is time-consuming, technological and requires, if not knowledge, certainly special skills. This has resulted in the emergence of new businesses, such as those engaged in the coordination of the scientific profile of a scientist. Indeed, it may be easier and more expedient to delegate the work to others and to start working hard on endeavors that are actually scientific, and to write, and write, and write.

Attempts to create science-metric systems started in the 19th century. In 1873, Shepard’s Citations was created, which is an index of legal documents.

In 1979, Index Medicus, an index of scientific publications on medicine was established.

The institutional systems are established in the form of institutes for scientific information. In 1952, in the USSR, the Institute for Scientific Information, USSR Academy of Sciences (renamed The All-Union Institute for Scientific and Technical Information) was established. In 1960, in the United States, the Institute for Scientific Information, which produced the Science Citation Index-SCI, was established. In China, indexing is carried out using several systems: the Chinese Science Citation Index, the China Scientific and Technical Papers and Citations, and the Chinese Social Sciences Citation Index. In Japan, there is a national citation index called the «Citation Database for Japanese Papers» and in Taiwan, there is the Taiwan Humanities Citation Index.

The Russian Science Citation Index has been under development since 2005 by the Scientific Electronic Library (eLIBRARY.ru).1 An analytical toolkit for the Science Index has been developed that is based on the RSCI database to enable users to obtain the necessary data about publications and citations of articles.

The RSCI performs many functions; in various capacities, it is directly incorporated into important social, scientific and educational processes. Thus, in November 2013, the Ministry of Education and Science of the Russian Federation developed a draft of «Provisions on the rules of formation of a list of peer-reviewed scientific journals» pursuant to which the basic scientific results of dissertations, upon the competition of a scientific degree of a candidate of sciences and upon the competition of a scientific degree of a doctor of sciences, should be published.

Paragraph 12 of the Order draft has established that the journals that are included in the list are required to be registered in the Russian Science Citation Index (hereinafter referred to as RSCI) and to provide information to the index about published articles on a regular basis.

The Russian Federation recognizes the foreign citation indexes, Web of Science and Scopus, in its national regulatory legal acts. So, in the aforementioned Order, the journals claiming VAK status are divided into two groups: 1) those that are relevant enough to perform the difficult requirements established by the order 1

Russian Science Citation Index // Wikipedia, the free encyclopedia. URL: http://ru.wikipedia.org/wiki/ %D0%EE%F1%F1%E8%E9%F1%EA%E8%E9_%E8%ED%E4%E5%EA%F1_%ED%E0%F3%F7%E D%EE%E3%EE_%F6%E8%F2%E8%F0%EE%E2%E0%ED%E8%FF.

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of the Ministry of Education and Science; 2) those registered in Web of Science and Scopus, which is sufficient for inclusion into the list.

For the journal itself, not only does a physical presence in the RSCI matter, but there also is a two-year impact factor, which must not be less than the criteria value that was established by the Commission, taking into account the characteristics of the various academic disciplines of scientists and related fields of science. These values have not yet been established, but the process is moving in a direction that will increase the status of the RSCI. The RSCI is not only an indexing system; first, it is a database that contains information about the publications in the journals that are included in it. If desired, the journals can place full-text articles in the RSCI. The Russian Science Citation Index is positioned to be a national information-analytical system. Today, the system has accumulated more than 4,7 million publications and more than 4000 journals.

Seventeen hundred journals are available online in eLibrary.ru. It offers relevant scientific and bibliographic information to researchers. The system comprises not only articles, but also reports from scientific conferences, tutorials, books, patents and dissertations. So far, a project is under development to fill the database with publications for the period from 2003-2013. This retrospective vector of work is of great importance, as it will essentially expand the methodological base of modern researchers.

The Law and Modern State journal, which is published in Russian and English, is included in the RSCI. Also, as we have cited, our reading group has been formed.

Svetlana Vladimirovna Boshno, Editor-in-Chief

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THEORY OF LAW STATUTE IN RUSSIAN LAW (A BRIEF HISTORY)

DOI: http://dx.doi.org/10.14420/en.2013.5.2

Zabelina Darya Vladimirovna, Head of A-B-Rail LLC Contract Department, (External Doctorate Student of Russian Presidential Academy of National Economy and Public Administration),

e-mail: dasha25121979@ya.ru.

Abstract.

Keywords:

This paper presents one of the most ancient forms of regulatory legal acts of the Russian state – a statute: its origin, stages of development, sphere of regulated jural relations. In the modern Russian legislation the form of legal regulation of jural relations in transport undergoes changes. The statute form of Soviet legislation is transformed in laws. Those changes, in the author’s opinion, must be based on deep analysis of history of legal regulation forms. It is for that purpose that the author makes historic-legal analysis of a statute as a national form of law, as a type of a regulatory legal act. statute, regulatory legal act, transport law, transport legislation, transportation rules, codified documents.

The statute is one of the most ancient forms of regulatory legal act in the Russian state. The statutes and charters of Ancient Rus (in the eleventh and twelfth centuries) are still extant today; they constitute monuments of legislation addressed to problems of state administration, court procedures and the imposition of taxes.

The term «statute» has several meanings in the Russian language.

Etymologically (by reason of its sense) the word «statute» is synonymous in the Russian language with «rule» or «strict regulation».1 In juristic terminology a statute is a body of rules regulating the activities of organizations and establishments, their relationship with other organizations and citizens, and their rights and obligations in a particular sphere of state administration or business activity.2 The appearance of statutes was preceded by charters, which were documents setting out the dues of the feudally dependent population of Rus, and, in the case of ecclesiastical charters, were documents setting out the relationship between the Zhalsanov B.Ts. Charter of a municipal unit in the system of regulatory legal acts: Diss... Cand. Jurid.

Sci. – М., 2004. – P. 102.

2 Soviet Encyclopaedic Dictionary / ed. by А.М. Prokhorov. – М.: Soviet Encyclopaedia, 1987.

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secular and the ecclesiastical authorities in connection with individual cases in a particular principality (a dependent part of the territory of Ancient Rus from the twelfth to the sixteenth century) for a certain time. Charters, being of local and temporary importance, were not widespread, and just a few of them are still preserved.

As distinct from charters, statutes are monuments with a more complex composition. They are based on one or several charters. The appearance of statutes was brought about by the close connection between state and church in the Middle Ages. The mutual relationships between state and church powers are already generalized in them.

Statutes contain fewer indications of the specific place and time of their creation, are notable for their broad content and applied in various conditions. One of the most ancient statutes is considered to be the Russian Pravda – an eleventh century collection of legal norms from Ancient Rus.1 All the statutes and charters of Ancient Rus differ according to their period in feudal state history, their territory of creation, and the step on the feudal ladder occupied by the parties figuring in the statutes.

At the end of the 10th and the beginning of the eleventh centuries, a source of ecclesiastical law having a state origin appeared – the Statute of Prince Vladimir Svyatoslavich on tithes and churchgoers.. For the first time in Rus, this Statute divided the jurisdiction over cases between the secular and the ecclesiastical courts.

The Statute of Prince Yaroslav the Wise (eleventh century) on the ecclesiastical courts already contains a list of ecclesiastical courts in extended form, with an indication of the consequences of the contravention of the norms of ecclesiastical law.

Good many articles of this statute are dedicated to the regulation of the relationships between the genders, in general, and of marital and family relationships, in particular, but they are considered primarily from a criminal law standpoint. For example, there is a rule on the «inadmissibility of dissolution of marriage because of alcohol abuse and a rule on the grounds for divorce.2 Several articles regulating the relationships of church people, including rules on licentiousness, drunkenness etc, can also be found there.3 In the period of the feudal fragmentation of the Old Russian state (the twelfth to the fourteenth centuries) such statutes appear as the Statute of Vsevolod on ecclesiastical courts, and the Church Statute of John the Baptist on the Opokis, known as the manuscript ordinances of the Novgorod Prince Vsevolod Mstislavich (1095–1138). They reflect changes in the state of the church that are connected with the development of the republican system in Novgorod the Great (a territory in the north of Rus). The Statute of Lev Danilovich, the Prince of Galicia,, reflects the mutual relationship between state and church in the south-western and western territories of Rus in the thirteenth and fourteenth centuries.

A special place is occupied by princely statutes and charters that are Russian legislation of 10th-20th centuries. Vol. 1 Legislation of Ancient Rus / exec. ed. V.L. Yanin. – М.: Yuridicheskaya Literatura, 1984. – P. 136.

2 Ibid. Vol. 1. – P. 163.

3 Ibid. Vol. 1. – P. 163-164.

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10 unconnected with the ecclesiastical jurisdiction. Feudal duties for the benefit of the princely administration were fixed in the Charter of the Prince of Volyn, Mstislav Danilovich (circa 1289).1 The order of supervision over the improvement of the streets of Novgorod was regulated by the Statute of Prince Yaroslav.

New legal institutions that were previously unknown to Russian law were reflected in the statutes of the fourteenth century. So, for example, there are statutes that regulate the application of the death penalty and corporal punishment. Some of the most well-known documents of that time are the Dvinsk (1397 – 1398) and the Belozyorsk (1488) charters.

In the period from the twelfth century until the middle of the sixteenth century, during the process of the unification of the separate principalities into a Russian state with its centre in Moscow, a number of the most important legal documents were created. A special place was occupied, for example, by charters of the vicegerent.

These brought about the legal affiliation of a particular territory (land or principality) with Muscovy, and extended the sovereignty of the Moscow Grand Prince over it. In order to administer these territories, the Moscow Grand Princes appointed special functionaries – vicegerents and volost-holders – who were handed a charter as the main document in which their judicial and administrative powers were defined and regulated with the greatest possible detail. That measure helped the central Moscow powers to control activities in the territories affiliated with the Russian centralized state.

In 1555-1556 a new variety of statute appears. A major monument of Russian law – the Regulations of the Robbers Order – was created. The Robbers order was one of the Russian state’s management bodies of the sixteenth and seventeenth centuries, and was in charge of cases of brigandage, robberies and murders, and of executioners and jails. The Robbers order was governed by regulations covering criminal judgments.

The second half of the sixteenth century in the history of the Russian state is connected with the beginning of the formation of an all-Russian market and its inclusion in the world trade system. A major legislative monument of the second half of the seventeenth century – the New Trading Statute (1667) – was adopted. The Statute contained legal norms regulating internal and foreign trade, thereby putting this trade under state control. The system of protective tariffs was connected with the policy of attracting and retaining money arriving from abroad. The Statute prevented attempts by foreign trade capital to seize the Russian market. For the first time the regulation of foreign trade was comprehensively reflected in the form of a single law for the whole state. Therefore, in the period from the eleventh to the sixteenth centuries the statute underwent in its development a period from a precedent to a form of a source of law of national importance.2 In the process of the development of the law in Russia the statute then comes back again from its national-level function to being a regulation relating to a particular Ibid. Vol. 1. – P. 163-164.

Russian legislation of 10th -20th centuries.. Vol. 4. Legislation of the period of the establishment of absolutism / exec. ed. А.G. Malkov. – М.: Yuridicheskaya Literatura, 1986. – P.116.

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problem. As a rule, this kind of regulation sets the rules for the conduct of certain activities; examples are the Statute of the Deanery or Police (1782),1 the Statute of the Imperial Saint Petersburg Academy of Sciences (1836), or the General Statute of Russian Railways (1885).2 In the Soviet period, statutes were exclusively subordinate acts, and include, for example, the Statute of Railway Transport (1922), the Veterinary Statute of the RSFSR (1927),3 the Statute of the Ural Railway Trust (1927),4 or the Statute of Vehicular Transport of the RSFSR (1969).5 After the disintegration of the USSR and the formation of the Russian Federation (Russia) in 1991, a steady trend is discernible of a transition from statutes (as legislation dealing with types of activity) to legislative acts. The constituent documents of the constituent entities of the Russian Federation are good examples showing that this transition has definitely happened. According to Clause 2 of Article 66 of the Constitution of the Russian Federation, «the status of a territory, region, city of federal significance, autonomous area or autonomous district is defined by the Constitution of the Russian Federation and the statute of the territory, region, city of federal significance, autonomous area or autonomous district, as adopted by the legislative (representative) body of the corresponding constituent entity of the Russian Federation».

One more modern example of the transformation of statutes into legislative acts is seen in the transport law. Here such complicated structures as a statute in the form of a federal law exist, and are represented by the Federal law No 18-FZ of January 10, 2003, «Statute about railway transport of the Russian Federation».

However at the present time in Russian legislation acts in the form of a statute are mainly preserved in the form of by-laws – the statute of an entity.

Summarizing the foregoing, it can be seen that, although the history of the statute in Russian law extends back over many centuries, and the form of the regulatory legal acts under consideration is constantly developing and changing, the statute has managed to preserve its main feature – a body of rules regulating the organization and operating procedures in some specific relationship.

References 1. Zhalsanov B.Ts. Charter of a municipal unit in the system of regulatory legal acts: Diss... Cand. Jurid. Sci. – М., 2004.

2. Complete collection of laws of the Russian empire. 2nd collection. Vol. XI. 1st division. – SPb., 1837. – Art. 8739-9493.

3. Russian legislation of 10th-20th centuries. Vol. 1. Legislation of Ancient Rus Russian legislation of 10th -20th centuries. Vol. 5. Legislation of the period of the golden age of absolutism / exec. ed. Е.I. Indova. – М.: Yuridicheskaya Literatura, 1987. – P.146.

2 Complete collection of laws of the Russian empire. 2nd collection. Vol. XI. 1st division. – SPb., 1837.

– Art. 8739-9493.

3 Collection of Directions and Orders of the RSFSR. – М., 1927. – Art. 558.

4 Collection of Laws and Orders of the Workers’ and Peasants’ Government of the USSR. – М., 1927.

– Art. 197.

5 LRS Garant. URL: http://www.garant.ru/.

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12 / exec. ed. V.L. Yanin. – М.: Yuridicheskaya Literatura, 1984.

4. Russian legislation of 10th -20th centuries. Vol. 4. Legislation of the period of the establishment of absolutism / exec. ed. А.G. Malkov. – М.: Yuridicheskaya Literatura, 1986.

5. Russian legislation of 10th -20th centuries. Vol. 5. Legislation of the period of the golden age of absolutism / exec. ed. Е.I. Indova. – М.: Yuridicheskaya Literatura, 1987.

6. Collection of Laws and Orders of the Workers’ and Peasants’ Government of the USSR. – М., 1927. – Art. 197.

7. Collection of Directions and Orders of the RSFSR. – М., 1927. – Art. 558.

8. Soviet Encyclopaedic Dictionary / ed. by А.М. Prokhorov. – М.: Soviet Encyclopaedia, 1987.

9. LRS Garant. URL: http://www.garant.ru/.

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LAW SYSTEM AND LEGISLATION SYSTEM DOI: http://dx.doi.org/10.14420/en.2013.5.3

Svetlana Vladimirovna Boshno, Doctor of Legal Sciences, Professor, Head of Political Science and Law Department of Russian Presidential Academy of National Economy and Public Administration, e-mail: boshno@yandex.ru.

Abstract.

Keywords:

This paper is a continuation of publication of the «Jurisprudence» textbook by Svetlana Vladimirovna Boshno. Law system is a key element of general theory of law. The major fundamentals of its construction are subject matter and method of legal regulation. Of great importance is the division of legal regulation methods into mandative and dispositive ones. The paper articulates the concepts of institute and branch of law demonstrated through various examples. An important classification of branches of law is separation of procedural and substantive, public and private branches of law.

Law system and legislation system are considered as interrelated categories that correlate as content and form. A necessary tool for using voluminous legislation is systematization in the following forms: codification, consolidation, incorporation. Codification is considered as a type not only of systematization, but of law-making, too. The reason for this is that in the process of codification, a lawmaking body makes changes of legislation, as a result of which a new document – a statute, is adopted.

Law system, systematization of legislation, codification, consolidation, incorporation, method of legal regulation, subject of legal regulation, private law, public law, institute of law, branches of law, procedural law, substantive law, dispositive method of legal regulation, mandative method of legal regulation, legislation.

The Concept of a Law System. Subjects and Methods of Legal Regulation A law system is an internal structure of law that is objectively caused by the system of social relations in terms of combining and arranging normative documents

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The building of a law system is a reaction to the development and complexity of law. At the dawn of the legal mechanism, when legislation was kept to one or more acts, there were no demands on the law system. There is no such demand in modern religious-conventional systems; similarly, the concept of a law system is not in demand in Anglo-Saxon countries. However, for the Roman-Germanic legal family, the law system is crucial. It reflects the need of this kind of states to streamline all socially important relationships with the help of regulatory acts.

A law system represents a complete structure. It covers all norms and forms and is a complicated multi-level complex that includes branches, institutions and the rule of law. The law system meets the requirements of systems in general, as evidenced by the presence of complex interrelationships between the following: the elements of the rule of law; the standards consolidated in institutions; the institutes of a specific branch of law; and the separate branches of law.

The selection of distinct elements of the law system, i.e., its branches and institutions, is not accidental. It is due to the nature of relations in different spheres of public life. A properly built law system should correspond with a real and actually existing division of public relations into various isolated groups.

To construct a law system, categories, such as the subjects and methods of legal regulation, are of particular importance.

The subjects of legal regulation are a variety of social relationships that, objectively, by their nature, can have a normative and organizational impact and are within socio-political conditions that require this impact to be executed using legal norms and all other legal means to form the mechanisms of legal regulation.

Public relations of various types are the subjects of legal regulation. However, not all public relations can become the subject of legal regulation. Human relationships may be regulated by the norms of morality, ethics and religion, as well as other forms of social norms. Law should govern only those relationships that cannot sustainably function without having a legal effect and for which regulation is currently needed.

Since the peculiarities of the relations that are regulated by law are part of the basis of the separation of law into branches, a strictly defined area of public relations, which is qualitatively different from other public relations and represents the subject of the legal regulation of other branches of law, is the subject of the regulation of each branch of law.

For example, property relations are the subject of legal regulation under civil law, as are related non-property relations.

A method of legal regulation represents a specific method or combination of methods by which an effect on the behavior of participants in legal relations is executed.

A method of legal regulation depends upon: - the objectives and tasks that the state establishes by publishing those or other rules of law; - the nature of the subjects of the legal relationship; - the nature and the relationship of the rights and duties of the subjects of

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legal relations; - various means to ensure and protect the rule of law.

Public relations may be regulated by the method of governmental orders, for example, the management of state property and the payment of taxes. These relationships are not equal: one party has the legal power to affect the other party, i.e., their relations are built on the basis of subordination. Relations can be built on the basis of equality and autonomy. More often, an agreement is the foundation for such relations. For example, civil legal relations are built this way.

The separation of private and public relations that are permissible and mandatory, as well as imperative and dispositive, has become very important. This distinction is most clearly seen in a comparison of civil and administrative relations.

In civil relations, the parties represent themselves as legal and physical persons.

The public authorities act as legal persons and are denied the opportunity to use their power. However, in legal relations in which the public body has the authority, the rules of administrative law or another public law will be their regulator. In the Civil Code of RF (p. 3, article 2), this issue is resolved as follows: «To the property relations based on subordination of administrative or other governmental authority of one party to the other, including tax, and other financial, and administrative relations, civil legislation does not apply unless otherwise provided by law».

The methods specified are imperative and dispositive.

The imperative method (mandatory) of legal regulation is a set of methods and techniques that is based on the principle of the subordination of the participants in legal relationships. The subject has no choice at the point of imperative impact; it must follow any binding or prohibiting order.

The dispositive method is built on the principles of coordination and the equality of the parties and represents itself through the use of permissions. The subject of the law has the option to select a model of lawful conduct within the limits established by the rule of law.

The dispositive method of legal regulation can have many manifestations that reveal some of its rules. The method of encouragement assumes the freedom of the behavior of the subjects of the law, on whom it has a stimulating influence. A stimulus is established for the desired behavior (an reward, benefit, remuneration, etc.). This kind of effect is intended to guide the active behavior of the subjects in order to achieve a certain goal.

The method of recommendations is used in the same way as the method of encouragement, but it does not provide a specific reward. The legal provisions that implement this method contain the words «may», «should», «recommend», «suggest», etc. The real impact of the recommendation method depends upon the credibility of its source, i.e., the author.

The subjects and the methods of legal regulation allow differentiate the majority of legal norms by the branches and institutions of law.

Two related, but not univocal, concepts are employed in jurisprudence: the law system and the legislative system.

A legislative system is displayed in the composition, correlation and internal

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16 structure of the sources of law: laws, decrees and other regulatory legal acts. A law system shows the «division» of the law itself, the legal norms, while the legislative system – its external form and – the source of law.

The correlation of law and legislation can be characterized as the relationship between internal and external forms. Because of the unity of these forms in the law, the basic units of the legislative structure of its branch are, at the same time, the branches of the law.

A law system and a legislative system are in collaboration and they penetrate into each other: A law system is contained in the legislative system and legislation secures the rights. At the same time, there are significant differences between these concepts. A law system and a legislative system are different in their constitutive elements. The primary elements of a system of law are the rule of law and the legislative system – the articles of the regulatory legal acts.

A significant difference is that a regulatory legal act is a part of the legislative system, but can include the rules of various branches of law, such as electoral laws and consumer protection acts, which are of an intersectoral nature. A legislative system has its own internal structure. It includes a branch, an interbranch and comprehensive legislation.

A law system is an abstract concept, i.e., it reflects the prevailing patterns of social life and their legal regulation. Each newly created rule of law is integrally incorporated into the relevant branch of law. The subjective factor, i.e., the will of the legislator, prevails in the formation of the legislative system. The law-making authority has the right to define, at its own discretion, the subject matter of the law, its name and the features of its content.

Legislation is a set of regulatory legal acts. According to the broad approach, legislation includes all types of regulatory legal acts; however, in the narrow sense, legislation consists of acts of the highest legal force, i.e., laws. A qualifying sign of legislation, in the narrow sense, is its acceptance by a representative body of the government in a legislative procedure. The concept of legislation not only has a special sense, but also has a generally used, ordinary sense – the set of all the sources and forms of law.

The term «legislation» can be considered using both a formal and a material approach. Thus, in the formal sense, the acts adopted by a legislator are, according to the general rule, referred to as legislation. In the material sense, all of the legal acts of state authorities comprise legislation.

In today’s lawmaking process, both the narrow and broad approaches to the definition of the given term are used equally. In a broad sense, the system of legislation is understood to be the set of all regulatory legal acts, while in the narrow sense, it is understood to consist only of laws. Article 1.1 of the Code of Administrative Offences of the RF establishes a broad approach, according to which the legislation regarding administrative offences consists of both the Code and the laws on administrative offences that address subjects that the Russian Federation has accepted pursuant to it.

The legislation of the Forestry Code of the Russian Federation is understood

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to consist of the code, other federal laws and the laws of the subjects of the Russian Federation. The urban planning code of the Russian Federation, in article 3, provides a very broad understanding of the term «legislation»: the code, other federal laws, other regulatory legal acts of the Russian Federation, and the laws and other statutory acts of the subjects of the RF. Article 3 of the Civil Code of the RF establishes a narrow understanding of civil legislation. The use of the narrow approach to the definition of the term «legislation» more accurately conforms to the nature and essence of legal statehood because it significantly complicates departmental lawmaking and puts it under the control of the representative authority. The Constitution of the RF establishes that by-laws should be adopted on the basis of and in accordance with law. This approach is reflected in the Civil Code of the RF: «On the basis of and in compliance with this code and other laws, decrees of the President of the Russian Federation, the Government of the Russian Federation shall have the right to issue regulations that contain provisions of civil law». The limits of departmental lawmaking are most precisely stated in the Civil Code of the RF: «The executive authorities may issue acts containing rules of civil law, in the cases and within the limits stipulated by the present Code, other laws and other legal acts» (p. 7, article 3, Civil Code of RF). Thus, in accordance with a narrow understanding of the term «legislation», departmental lawmaking is allowed by laws, which, of course, have been adopted earlier.

A law system is divided into two areas: private and public. The division of law into public and private areas originated in ancient times. Ulpiana is fairly considered to be one of the authors of the given doctrine. Thus, for example, he considered that public law referred to the position of the Roman State. He believed that the needs of individuals, their legal status and property relations were of the greatest interest in the private law. For the public law, state interests, the legal position of the state, its bodies and officials, and the regulation of relations with a strong social significance have priority.

The domestic law, as a whole, has not been characterized by a clear division into private and public law. In addition, at the beginning of the 20th century, MarxistLeninist doctrine denied that the private law existed at all. It was predetermined by the crucial role of the state in all respects, with no exclusions.

The reform of the legal system in the 90’s of the twentieth century, which was oriented towards market economic relations, led to a new phase in the problem of the relationship between the private and public law sectors. Modern legal doctrine is built on the separation of law into private and public spheres.

The division of public and private law in modern theory is accomplished through multiple criteria. One of them is the scope of the interests of legal protection.

Public law refers to the interests of the state as a whole and private law refers to the interests of the individual. The method of judicial protection can be used as a criterion as well. Public law is protected by criminal or administrative proceedings initiated by the state authority. Private law is protected at the initiative of a person through civil proceedings. In the public law sphere, the state, by its regulations, defines the role of each subject and its rights and duties in relation to the state as a complete structure.

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18 In the private law sphere, legally relevant decisions are made by many individuals who act independently.

The public law has the following specific features: - a hierarchical relationship of subjects that is based on authority and, therefore, their subordinated positions relative to each other; - imperative (mandatory) legal regulations through binding or prohibiting rules of law; - significant sanctions for offences in the public sphere; - a legal framework-oriented impact.

Public law regulates the following: the structure and functioning of the state and its institutions; the institutions of civil society; the mechanisms and levels of selfgovernance; the foundations of the legal system, law-making and law enforcement; and the principles, norms and institutions of international relations and international organizations.

The public law branches are as follows: constitutional, financial, administrative and procedural, criminal, criminal procedure, criminal enforcement and international humanitarian law.

Private law is based on other ideas. It is characterized by a permissible orientation and the equality and autonomy of the subjects of private law relations.

The state must not arbitrarily interfere in the private sphere. The principles of private law are the freedom of contract and the free movement of goods, services and financial resources. The branches of private law are civil, family, housing law, civil procedure, etc.

Private law differs in the predominance of dispositive legal norms. The subjects of law enter into private legal relations at their own will; coercion is prohibited by law. Contracts are the predominant form of relations that are executed in the private sphere. Private law mainly focuses on the satisfaction of personal or corporate interests.

Today, a fundamental issue is the tendency for there to be close cooperation and interaction between private and public law.

Branches of Law: Concept, Types A branch of law is the largest central unit of the law system and it emerges on the basis of the unity of the subject and the method of legal regulation. A branch of the law is understood to be a set of interrelated legal institutions that governs respectively an independent and broad area, i.e., the scope of public relations.

A branch of law regulates public relations related to the implementation of a broad scope of the substantive activities of the society, the state, the citizens and other subjects of the law. For example, civil law regulates property and the personal non-property relations associated with it, while family law regulates relations related to marriage and family member identification.

The ability to exercise the legal regulation of a vast sphere of public relations distinguishes a branch of law from a legal institution, whose regulatory functions are limited to a relatively narrow set of relations. In addition, unlike an institution, a branch of law contains a comprehensive set of legal tools and methods of legal

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pressure established by the state in the process of the regulation of relations of a corresponding branch.

Every branch of law is differentiated by a specialized sectoral legal regime that characterizes the legal position of the law’s subjects and the implementation of the forms of the rule of law, including law enforcement. A sectoral regime includes a set of legal institutions that are intended to provide effective legal regulation. Thus, equality, autonomy and freedom characterize the branch of civil law. The threat of punishment, responsibility and offensive effects are inherent in criminal law.

A code is an external manifestation of the presence or absence of a branch of law. It consolidates the contents of specific areas of the branch of law. Of course, the complete legislation that comprises a branch is not limited to a code; however, all other laws and other regulatory legal acts must not contradict it and must be made for the development of a codified act. The relations of the Civil Code of the RF and other civil legal acts are primarily composed in this way. Currently, there are 24 acting codes. Of these, three codes are of a purely procedural nature. The «code»-«branch» rule is not absolute. There are branches that do not have a code, for example, constitutional law. There is also a code without a branch, for example, the Urban Planning Code of the RF. The system of Russian law is divided into the following branches: constitutional, administrative, financial, civil, family, labor, social security, natural resources, criminal, criminal procedure, civil procedure, arbitration law, criminal-executive and others.

International law is not included in the national system of law; it forms its own system, which is comprised of private and public law.

Constitutional law is the system of legal norms that regulates the most important socially significant relations, i.e., the foundations of social life. Constitutional law consolidates the fundamentals of the economic, political, and spiritual areas of life in society and the legal status of individuals. Constitutional law lays the legal foundations for each of the spheres of public life. In the social and economic spheres, it defines the legal basis of property relations, the social role of the state in the political sphere, i.e., the establishment and role of political parties, the procedure for the election of representative bodies and key officials, the organization of states, etc. In the spiritual sphere, the modern state manifests ideological pluralism.

The subject of the legal regulation of constitutional law is the social relations that define the basis of the constitutional order and the political and territorial structure of the country. Constitutional provisions govern the relations that arise in the exercise of the power of the state by the people and the procedure for the establishment and functioning of bodies of public authorities.

An important component of the subject matter of this branch is the basis of the legal status of a person and a citizen, as well as the content of the exercise of the political rights and freedoms of citizens.

The foundation of the method of the legal regulation of constitutional law is the legal guarantee; its essence is that the foundations of the constitutional order, the legal status of an individual and a citizen, the political and territorial structure, and the system of the bodies of state power and local self-government, are enshrined and

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20 guaranteed in the basic law of the state.

In the domestic constitutional law, the mandatory method of legal regulation prevails, i.e., its norms are the only option for lawful conduct. At the same time, permissions, permissive rules, encouragement and stimulation also occur.

Constitutional law, as a branch of law, is a system of internally coherent rules that strengthen and implement the basic aspects of the legal status of individuals, public associations and other social groups, the socio-economic structure and the political system and spiritual life of the society, thereby ensuring the legitimate conditions for the exercise of state power.

The subjects of constitutional-legal relations are: - social, national and other communities (people, ethnic groups, etc.); - the state and state entities (the Russian Federation and its subjects); - structured associations of citizens (parties, voter groups, etc.); - bodies of state power, self-governments, as well as officials having constitutional powers; - deputies of representative bodies; - natural persons (citizens of the Russian Federation, foreign citizens, persons with dual nationality, stateless persons).

Civil law is a branch of Russian law that regulates the property and associated non-property relations that prevail between individuals, legal entities and public entities on the basis of equality, autonomy of will, property independence and the initiative of the participants in these relations.

The subjects of the legal regulation of civil law are property and associated personal non-property relations.

Property relations are the relations that concern the use, possession and disposition of things. Most of the relations that are regulated by civil law are those that involve commodities and money.

Civil law regulates the relations between persons who are engaged in entrepreneurial activities. Entrepreneurial activity is an activity that is carried out independently, at one’s own risk, which is aimed at systematically deriving a profit from the use of property, the sale of goods, the performance of works or the provision of services by persons who are registered in that capacity in accordance with the law.

Non-property relations that are connected with property are the relationships that can acquire value. The objects of this kind of relations are works of art, literature, etc.

Non-property relations that are not connected with property are not regulated, but are protected by the civil law. These objects include the life and health of a citizen, the dignity of the individual and certain other benefits. A feature of these relationships is that they are not measurable in monetary terms, have no value and cannot be transferred from one entity to another.

The civil law is featured in the law system as a subject and a method of legal regulation and is expressed in the recognition of the legal equality of the parties.

The implementation of equality is accomplished through the independence and autonomy of the parties. Pursuant to civil law, persons act according to their will and

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are guided by their interests; their actions may be entrepreneurial and they may take any action that does not contravene the law.

The following branches of law are featured: primary, special and complex. The primary (major) branches include the following: constitutional law, administrative law, criminal law, civil law, civil procedure, administrative procedure and the law of criminal procedure. The special branches are those such as labor law, family law and others. The complex branches are formed by the integration of the norms of the primary and special branches of law. Entrepreneurial law may be an appropriate example.

The developmental process of a law system is continuous: New branches of law are formed and old ones become ineffective. For example, in the Soviet law system, there was a collective farm law that does not exist in the modern system of law. At the same time, entrepreneurial law, which was the result of the development of market relations, was formed in the Russian law system, beginning in the 90’s of the 20th century.

Institutes of Law: Concept, Types A peculiarity of a branch of law is that its basis is reflected in the institutes of law. For example, an employment contract is a system-forming institute of labor law; similarly, property is an institute of civil law and punishment is an institute of criminal law.

The following features of the institutes of law are specified: legal unity; completeness of the regulation; and legal separateness.

The legal unity of the legal norms that constitute the institute of law is manifested in the unity of the content of its norms. In the institute of law, there are general provisions, legal principles, concepts and the unity of the legal regime of the regulation of relations.

The completeness of regulation in the institute is based on the diversity of the norms of the institute. It includes both prohibiting and mandatory norms, as well as permissible norms, that allow the institute to carry out all the relevant aspects of the legal regulation of the corresponding group of public relations. Each institute performs its function and does not overlap with the other institutes of the law system.

A law institute, as a rule, is allocated and separated in a particular way in the text of a legal act through the establishment of chapters, sections, units and other elements in the regulatory legal acts. The logical sequence and perfection of law presuppose such a differentiation of its content, which is defined by the quality of the isolation of this or that set of rules.

For example, the employment contract is a kernel of the labor law branch and it unites the homogeneous rules of law with the same subjects and methods of legal regulation. If a sphere of social relations is a subject in a branch of law, then, in the institute, it is a type or kind of relations. The institute of an employment contract contains provisions that concern one legal notion.

The completeness of the regulation in the institute of the labor contract is expressed in that it includes provisions that give a definition of this phenomenon (art. 56 of the LC RF), its contents (article 57 of the LC RF), its terms, the parties, the

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22 procedure for the conclusion (art. 59, 61 of the LC RF), the procedure for changes (art. 72-76 of the LC RF) and the termination of an employment contract (art. 77-84 of the LC RF).

The legal separateness of the institute of the labor contract consists of its outline in the text of the Labor Code of the Russian Federation in a special section III entitled ÂŤEmployment ContractÂť, which is divided into chapters: general provisions, the conclusion of an employment contract, changes to an employment contract, termination of an employment contract and the protection of the personal data of employees.

The following types of institutes are specified: branch institutes (e.g., institute of labor contract) and inter-sectoral institutes (institute of property).

Branch institutes are institutes having norms that are located in one branch of law. They reflect the originality of the branches of law. An example of a branch institute may be the liability of industrial and office workers under labor law. A clearly defined branch affiliation of this given institute is that the parties to this relationship can only be an employee and an employer. The institute is based on the powers of the administrative authority of the enterprise and its right to impose disciplinary sanctions on workers.

Inter-branch institutes include the norms of several branches of law. They regulate the relations that not only are of great importance in society, but also have a multilateral regime of legal protection. For example, the general provisions of property law and the main forms of ownership, the occurrence and termination of property rights are regulated by civil law, while the protection of property rights is provided by many branches of law, including criminal and administrative law and others. The features of property rights are reflected in the family, land and other branches of law.

Systematisation of Legislation Systematisation is the processing and compilation of regulatory legal acts into a single, coherent system.

This activity is essential for a rapid search of the necessary norms.

Systematisation is used as a way to provide the subjects of law with necessary and accurate legal information. Over time, repetitions and contradictions are created through an array of legislation; systematisation measures help to overcome these shortcomings.

The types of systematisation vary, depending upon: - the depth of the modifications to the original specifications and guidelines.

Some types of systematisation are carried out by the incorporation of legal acts without changes to their content (incorporation), while in others (for example, in codification), it is accomplished principally by updates of the legislation and through deep processing; - the subjects that perform the systematisation. Some types of systematisation can be performed by any person (incorporation), while other types can be performed only by officially authorized persons, primarily public authorities (codification); - the validity of the results of the systematisation. For example, the results of

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incorporation will have no legal effect, but the results of codification are required to be appropriate because they are laws and other regulatory legal acts (by-laws, etc.).

The following are types of systematisation: incorporation, codification and consolidation.

Incorporation is a form of systematisation that involves a process in which regulatory legal acts are subjected to external processing and are completely or partially combined in various compilations and collections of acts. During incorporation, the content of acts is not changed. Incorporation is aimed at the external combination of the normative material and does not aim to eliminate the contradictions in the content of regulations. This task is performed during a codification process.

Incorporation is not a simple mechanical reprint of a text because it involves regulating. In this case, the external processing of acts is executed. It can be performed by making amendments to the text of the original act or by deleting withdrawn rules from a document. The collection may include only a fragment of a regulatory act that is thematically appropriate for a certain edition. There are known chronological incorporations that incorporate the acts issued during a given period of time. The Code of laws is an example of chronological incorporation. The known Russian codes are those from the year 1832, the laws of USSR and those of the RSFSR. Historical examples include the codes of Justinian and Speransky.

In modern Russia, an attempt has been made to create this kind of act. As far back as 1994, the President of the Russian Federation issued the Decree of January 28, 1994, №. 223, which established the Federal Commission on legal informatisation under the President of the Russian Federation. Among others, the Commission was given, as an objective, the preparation of the Russian Federation Code and the Code of Acts of the President and the Government of the Russian Federation. In 1998, the Decree of the President of the RF No. 170, «On measures to improve the efficiency of the work associated with the formation of the Russian Federation Code», was issued. With the changes that were made during 1995, there are now two existing clauses out of 12. All power to work on a Code is delegated to the StateLegal Department of the President of the Russian Federation, which carries out, inter alia, the preparation of the reference texts of regulations on machine-readable media and keeps them in a controlled condition.

Depending on the subject that exercises it, incorporation is divided into formal, semiformal and informal types.

Depending upon the normative material covered, incorporation may be general or partial. General incorporation includes all legislation, while partial incorporation combines groups of acts by certain features.

Incorporated documents may be static or developing.

Legal reference systems are an example of a developing incorporation. For example, the computer legal reference system «ConsultantPlus» contains legal acts that have been previously exposed to professional legal processing.

Legal processing is the identification of relations between documents and the recording of the identified relations in specific forms (references, notes, reference information), as well as the creation of document editions when they are edited. An

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24 incorporation of the reference system can be performed upon the request of the user using grounds such as subject, document type, date, keywords, and more.

Codification is a type of systematisation conducted by the legislative bodies in order to regulate legal norms.

Codification is used for the coherent regulation of a branch of law and the comprehensive legislative regulation of social relations in a separate area.

Codification reflects a greater concentration of normative material in a particular sphere of public relations.

Stability and the well-formed social relations that are the subject of the legal regulation of the Code are of particular importance in the segregation of codified acts into special types. The following features of codified acts may be specified: - high legal integrity and internal consistency of the codified acts; - stability and sustainability; - a wide range of regulated relations.

An important prerequisite for codification also is the preparedness of the legislation for codification and the degree of its development. This means that the acts that are to be codified should represent a certain established group.

The basic condition for codification is the requirement related to its subject, which may be a group of regulatory legal acts that represents a system that has the specifications of a branch of law. Thus, codification is not a variation of current lawmaking process. Based on this, the code and the current law differ considerably in their structure, their roles in the system of law and the order in which their regulations are formed. Important conditions for the adoption of an act in the form of a code are: - the stability and sustainability of the social relations that make up the subject of its legal regulation; - an established legal confirmation of the relations; - the branch affiliation of the provisions of the regulatory legal acts that are expected to form the basis of the codification.

Consolidation is a form of systematisation that involves a process in which previously published regulatory legal acts on a particular issue are combined (merged) into a single act.

This form of organization has a derived complex character. It can be performed in several ways; in particular, consolidation can be carried out by legislators through the adoption of a new edition of any law.

The aim of consolidation is the elimination of duplication. It decreases the number of acts, although their content is not changed except for editorial corrections.

The consolidation process allows the unification of terms and the alignment of styles. The new act, that has consolidated the old documents, fully terminates the documents that have become a part of it.

Consolidation, which occupies an intermediate position between incorporation and codification, is different from them. The subjects that can implement the systematisation differ from those that can implement incorporation. Incorporation may be performed by any entity, but consolidation must be performed by a lawmaking body. The results of these two types of systematisation are different as

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well. Incorporation results in compilations and collections, while consolidation results in the adoption of a regulatory act. Consolidation differs from codification with respect to the depth of the processing of the regulatory material. Codification provides important updates, while consolidation provides only editorial improvements.

Systematisation is also conducted by the issuance of a law that has the same name as previously issued law and that replaces the previous version. For example, in 1995, Federal Law No. 154-FZ, «On general principles of organization of local self-government», was adopted, but changes were made to it until October 6, 2003.

A new Federal Law No. 154-FZ was adopted on September 6,1995. Article 84 of the new law revoked the previous Federal Law No. 154-FZ. Recordkeeping is another type of systematisation that is recognized as a method of regulatory information storage. In any case, recordkeeping is an independent kind of legal work. It includes a collection of regulatory acts as well as their processing and storage.

References 1. Boshno S.V. Theory of law and state. – М., 2011.

2. Kirimova Е.А. Law institute: concept and types: tutorial. – Saratov: State Academy of Law, 2000.

3. The concept of development of the Russian Federation / Ed. T.Ya. Khabrieva, Yu.A. Tikhomirov. – М., 2004.

4. Luk’yanenko V.E. On the homogenous and complex branches of law // State and law: problems, solutions, suggestions: Scien. notes. – Ulyanovsk, 1997. – Iss. 1 (3). – 24-29.

5. Pigolkin А.S. Problems of systematisation of the legislation of the Russian Federation // Law: creation and interpretation / Ed. А.S. Pigolkina. – М., 1998.

6. Polenina S.V. The interaction of law system and legislation system in modern Russia // State and law. – 1999. – № 9.

7. Rakhmatina T.N. Current issues of the Russian legislation codification // Journal of the Russian law. – 2008. – № 2. – P. 30.

8. Rybakov V.A. Continuity in the law and codification of the law // Journal of the Russian law. – 2007. – № 4.

9. System and law structure, legislation system. – М., 1999.

10. Sukhanov Е.А. Private law system // Bulletin of Moscow University. Series 11. Law. – 1994. – № 4. –P. 26–33.

11. Cherenkova Е.S. The ratio of law system and legislation system in modern Russia // Problems of state and law. – М., 2001. – P. 98–107.

12. Cherepakhin B.B. To the issue of private and public law. – М., 1994.

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ERN LAW MOD ANDTES STA

STATE AND ADMINISTRATION ON DEVELOPMENT STRATEGY OF COMPETITION AND ANTIMONOPOLY REGULATION IN THE RUSSIAN FEDERATION DOI: http://dx.doi.org/10.14420/en.2013.5.4

Bashlakov-Nikolayev Igor Vasilyevich, Candidate for a Master’s Degree of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration, e-mail: bniv@list.ru.

Abstract.

Keywords:

The paper analyses the Development strategy of competition and antimonopoly regulation for the period of 2013-2024 approved by the Presidium of FAS Russia on July 3, 2013. The Strategy purpose is development of competition in the Russian Federation and perfection of competition protection institutes. The Strategy will also serve to the tasks of implementation of effective tools for prevention of antimonopoly offenses, such as the rules of nondiscriminatory access, corporate institutional arrangements making provision for observance of standards of antimonopoly legislation regulations. The author substantiates a breakthrough importance of establishing administrative responsibility of public authority officials for violation of procedure for the exercise of authority in the field of urban development and land relations. In his opinion, legislative amendments in accordance with the Strategy will make it possible to create in practice mechanism of administrative appeal of mandative constitutive procedures. antimonopoly legislation, restriction of competition, development of competition, antimonopoly regulation, protection of competition, effective competition, state order, municipal order, abuse of a dominant position, anticompetitive practices (acts), unfair business practices, administrative appeal, development strategy of competition and antimonopoly regulation, Federal Antimonopoly Service, nondiscriminatory trade policies.

For the purposes of the development of competition in the Russian Federation and the perfection of rules for the protection of competition institutions,

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the Federal Antimonopoly Service (FAS) has developed a strategy for the development of competition and antimonopoly regulation for the period of 201320241 (which will be referred to hereafter as «the Strategy»); this was approved by the Presidium of The Federal Antimonopoly Service of the Russian Federation on July 3, 2013.

The Strategy was developed as part of the harmonization of antimonopoly legislation with best practice from around the world, and takes into account advice from the Organisation for Economic Cooperation and Development (OECD) and business representatives.

Voting organized by the Vedomosti newspaper showed that the adoption of the Strategy by The Federal Antimonopoly Service of the Russian Federation along with the development of the law on class actions, the change in the procurement rules under the Federal Law No. 223-FZ of July 18, 2011 «On procurement of goods, works, services by individual types of entities»2 and the draft amendment to Article 178 of the Criminal Code of the Russian Federation3 as it pertains to a narrowing of its field of application for cartels and the relief from criminal responsibility of the first person to confess, the Federal Antimonopoly Service of the Russian Federation was recognized as an important event in antimonopoly policy in 2013.4 It must be noted that the Federal Law No. 135-FZ of July 26, 2006 «On protection of competition»5 (which is referred to hereafter as «the Protection of Competition Law») was adopted in 2006. Over the period from 2006 to 2013 the Protection of Competition Law was amended, and the amendments were put together in three «antimonopoly» packages.

During that time the antimonopoly regulation in the Russian Federation was improving, on the basis of best practice from around the world, the dictates of time and advice from the business community.

During the period mentioned above, administrative responsibility was introduced for economic entities and governmental and municipal bodies, as well as for their officers, in the field of the protection of competition, and limits were increased for the control of economic concentration.

The «third antimonopoly package»6 of amendments to the Protection of Competition Law introduced systems of warnings and notices intended to bring to an end the use of preventive measures to protect competition, and to replace them with prophylactic measures. If an infringer obeys a warning within the specified time, he is no longer subject to antimonopoly fine and free of administrative See: The Strategy of development of competition and antimonopoly regulation for the period 20132024 // LRS Garant. URL: http://www.consultant.ru/document/cons_doc_LAW_149768/.

2 Legislation Bulletin of the RF. – 2011. – No 30 (P. 1). – Art. 4571.

3 Legislation Bulletin of the RF. – 1996. – No 25. – Art. 2954.

4 Major events of 2013 – opinions of experts and society // Federal Antimonopoly Service. URL: fas. gov.ru/fas-news/fas-news_34885.html.

5 See: Legislation Bulletin of the RF. – 2006. – No 31 (P.1). – Art. 3434.

6 See, for instance: Puzyrevskiy S., Varlamova A., Totyev K. The Third antimonopoly package: experts’ commentaries // Law. – 2011. – No 10. – P. 43-44.

1

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28 responsibility. .

The Strategy establishes four priorities for the improvement of antimonopoly regulation in the Russian Federation: 1. The creation of a favourable institutional and organizational environment for the effective protection and development of competition.

2. The lowering of administrative barriers that prevent the free functioning of the markets.

3. The provision of non-discriminatory access for consumers to the services of natural monopolies, and the formation of effective mechanisms of tariff setting.

4. The creation of conditions for effective competition in the course of government and municipal procurement and the sale of state property.

The creation of a favourable institutional and organizational environment for the effective protection and development of competition is a necessary condition for a substantial improvement in the quality of the implementation of measures aimed at the protection of competition. These measures are based on the use and implementation best practice from around the world, as well as on improvements in the effectiveness of the activities of antimonopoly bodies by means of the implementation of modern and effective quality management tools.

In this section of the Strategy, The Federal Antimonopoly Service of the Russian Federation considers one of the most important tasks to be the implementation of effective tools to prevent offences under the antimonopoly legislation, such as rules about non-discriminatory access and non-discriminatory trade policies of business entities that are dominant in the markets, as well as corporate institutional arrangements making provision for the observance of the standards of antimonopoly legislation.

An additional point is that, in accordance with this section of the Strategy, great importance will be attached to the development and implementation of economic incentive measures for the development of markets, and the introduction of pro-competition demands as a norm in all spheres of Russian legislation.

According to the Strategy, the improvement of antimonopoly legislation and its use in practice will be directed at the development and perfection of systems to prevent offences in the field of the protection of competition. Within the framework of that part of the Strategy it is proposed: - to extend the field of use of new legal institutions preventative regulations on warnings and notices about actions that have been committed, and the publication of details of actions by public authorities that limit competition, as well as cases in which unfair competition has occurred; - to introduce policies for the notification of dominant business entities, with the purpose of stopping consumer discrimination; - to develop and introduce norms that will stimulate the introduction of compliance systems (corporate measures directed at the prevention of offences under the antimonopoly legislation) in business entities, associations and unions; and - to develop, and present for approval by the government of the Russian

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Federation, rules on the non-discriminatory access to limited resources (such as subsoil, aquatic biological resources, EMR spectrum frequencies etc.).

The Strategy provides for the field of use of the Protection of Competition Law to be extended to agreements on the use of exclusive rights where those agreements lead to the limitation, prevention or elimination of competition in the sale of goods.

In order to increase the effectiveness of the suppression and prevention of unfair competition, the Strategy provides that a detailed list of forbidden practices that are recognized as unfair competition will be set out in the Protection of Competition Law. For the purposes of increasing the quality and operating efficiency of antimonopoly bodies in the field of the protection of competition, the Strategy includes measures for increasing the quality of economic analysis and control on economic concentrations. In particular, the Strategy provides for: - the standardization of the use of economic analysis, on the basis of the best practices of the antimonopoly bodies of the member countries of the ОECD; - the establishment of responsibility for the assessment of competition in adjacent markets in the course of preliminary control on transactions; and - the substantiation of decisions on economic concentration, to ensure that, in the analytical part of a decision, conclusions on the state of competition in the corresponding goods market and the transaction consequences are included.

In order to reduce the administrative burden on business entities, the Strategy provides exclusion of the notification control over economic concentration, as well as the abolition of mandatory for businesses included into the register business entities holding a market share of more than 35%, binding state statistical reporting, as well as to introduce the requirement of the three-year period of entering data into the registry. The Strategy devotes an important section to the problems of improving the effectiveness of the progression of cases on breaches of the antimonopoly legislation, as well as the modernization of the statutory regulations on administrative breaches in the protection of competition field.

In particular, the Strategy contains an indication that amendments to the laws of the Russian Federation will be introduced to provide for the unification cases on breaches of the antimonopoly legislation and cases on administrative breaches, provide for the introduction of а pre-trial procedure for appeals decisions of territorial antimonopoly bodies to The Federal Antimonopoly Service of the Russian Federation, with the purpose of increasing the uniformity of the enforcement of the law.

In addition, the Strategy provides for the establishment of administrative responsibility for government authority functionaries for breaches of the rules governing the exercise of their powers in the field of construction and land rights, as well as the ending of the practice of administrative fines being given to functionaries for the most «harmful» breaches of the antimonopoly legislation, with a single punishment, in the form of disqualification, being introduced for such breaches.

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30 Along with this, the Strategy provides for the establishment of fines commensurate with turnover for the parties to anticompetitive «vertical» agreements where there are no proceeds in the goods market and fines for the coordination of economic activity, as well as the establishment of turnaround penalty for the abuse of a dominant position with monopsony.

It must be noted that Federal Antimonopoly Service of the Russian Federation has already set about the implementation of the Strategy. In particular, in his report at the 5th annual conference on «Antimonopoly regulation in Russia», the head of The Federal Antimonopoly Service of the Russian Federation, Igor Artemyev, spoke about the amendments to the Protection of Competition Law 1 that had been drafted. These are in two parts: the first contains provisions that were not included in the «third antimonopoly package» amendments, and the second contains proposals made by businesses.

The amendments have been developed with the purpose of implementing the «Development of competition and perfection of antimonopoly policy» road map, and are in accordance with the recommendations of the ОECD which, in July 2013, acknowledged that the protection of competition policy in Russia was in accordance with its standards.2 In particular, the amendments contain a complete reversal of the position about notifications of economic concentration transactions, as well as the introduction of a responsibility government authorities to coordinate the establishment of state and municipal unitary enterprises with an antimonopoly body,3 and the expansion of rules warnings other forms of abuse of a dominant position, for anticompetitive activities (acts) of government authorities events of unfair competition (with the exclusion of events in the intellectual property sphere).

In addition, the draft amendments are also intended to eliminate the possibility of the prohibition of abuse a dominant position that action would lead only to the impairment of the interests of particular persons not connected with the business activities and if the abuse does not result in the restriction of competition in the market. The amendments are also intended to make impossible the business entities with a share of less than 35% as being dominant in the market, to allow the possibility of recognizing joint venture agreements as admissible, and to determine the order of notification about joint venture agreements. At the present time those amendments to the antimonopoly legislation are being coordinated with the relevant Federal government bodies and with representatives of the business community.

In October 2013 a discussion the amendments to the antimonopoly FAS Russia evolves into a preventive control body // Federal Antimonopoly Service. URL: fas.gov.ru/ fas-news/fas-news_34881.html.

2 Andrey Tsarikovskiy: The FAS will concentrate on major cases which exercise a significant influence on competitive situation // Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fas-news_34968. html.

3 Draft federal law on amendments to the federal law «On protection of competition» and certain legislative acts of the Russian Federation // Federal Antimonopoly Service. URL: fas.gov.ru/legislative-acts/ legislative-acts_51132.html.

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legislation took place with representatives of the All-Russian public organization «Business Russia»1 On November 1, 2013 a discussion of the amendments took place at the «Influence of amendments to antimonopoly legislation on the development of small and medium-sized businesses in Russia» conference held

by The Federal Antimonopoly Service of the Russian Federation and «Backbone of Russia», the all-Russian social organization of small and medium-sized private enterprises.2 On November 11, 2013 in the State Duma of the Russian Federation a discussion3 of the amendments took place at the discussions representatives of Federal Antimonopoly Service of the Russian Federation, the Ministry for Economic Development, the Federal Tariffs Service, the Chamber of Commerce and Industry, the Russian Union of Industrialists and Entrepreneurs and State Duma Deputies etc. part.

At the present time a draft Federal law also prepared, entitled «On amendments being made to the Federal law «On protection of competition’ and some legislative acts of the Russian Federation», in which the amendments and additions to Article 18.1 of the Protection of Competition Law are introduced and which provides for the administrative appeal decisions and actions of the government authorities in the field of urban development and land rights.4 The draft law mentioned above also provides for the administrative responsibility of functionaries of government authorities for the breach of the exercise of an authority’s powers in the field of urban development and land rights.

These changes will create a practical mechanism for administrative appeal of mandatory title procedures, to create the conditions for the elimination of administrative barriers in the field of construction and land rights, and to make the economy of the Russian Federation and its regions more open and attractive in terms of investment.

This type of administrative appeal is a preventive measure designed to deal with the refusal to allow competition or the limitation or elimination of competition by the norms of Articles 15 and 16 of the Protection of Competition Law. The use of preventive measures will make it possible to save time, an appeal by an antimonopoly body is considered well-grounded and an injunction violations is issued, then the limitation and elimination of competition and the competition will not happen, and it not be necessary to use the measures for the protection of competition Article 9 of the Protection of Competition Law.

What should business expect of amendments to antimonopoly legislation? // Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fas-news_34832.html.

2 The Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fas-news_34892.html.

3 About the most important: representatives of FAS Russia and State Duma Deputies have discussed amendments to antimonopoly legislation // Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/ fas-news_34952.html.

4 See Clause 10 of the Plan of Action (Road Map) «Perfection of legal regulation of urban development and improvement of business climate in the field of construction» approved by the Order of Government of the Russian Federation on July 29, 2013 No 1336-r. (Legislation Bulletin of RF. – 2013. – No 32. – Art. 4329-р).

1

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32 References 1. Andrey Tsarikovskiy: The FAS will concentrate on major cases which exercise a significant influence on competitive situation // Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fas-news_34968.html.

2. About the most important: representatives of The Federal Antimonopoly Service of the Russian Federation and State Duma Deputies have discussed amendments to antimonopoly legislation // Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fas-news_34952.html.

3. Major events of 2013 – opinions of experts and society // Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fas-news_34885.html.

4. Draft federal law on amendments to the federal law «On protection of competition» and certain legislative acts of the Russian Federation // Federal Antimonopoly Service. URL: fas.gov.ru/legislative-acts/legislative-acts_51132. html.

5. Puzyrevskiy S., Varlamova A., Totyev K. The Third antimonopoly package: experts’ commentaries // Law. – 2011. – No 10. – P. 43-44.

6. Legislation Bulletin of the RF. – 1996. – No 25. – Art. 2954.

7. Legislation Bulletin of the RF. – 2006. – No 31 (P.1). – Art. 3434.

8. Legislation Bulletin of the RF. – 2011. – No 30 (P.1). – Art. 4571.

9. Legislation Bulletin of the RF. – 2013. – No 32. – Art. 4329-r.

10.

The Strategy the development of competition and antimonopoly regulation for the period 2013-2024 // LRS Garant. URL: http://www.consultant.ru/ document/cons_doc_LAW_149768/.

11. The Federal Antimonopoly Service of the Russian Federation evolves into a preventive control body // Federal Antimonopoly Service. URL: fas.gov.ru/ fas-news/fas-news_34881.html.

12. The Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fasnews_34892.html.

13.

What should business expect of amendments to antimonopoly legislation? // Federal Antimonopoly Service. URL: fas.gov.ru/fas-news/fasnews_34832.html.

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PRACTICABILITY OF USAGE OF SEVERAL TYPES OF ELECTRONIC SIGNATURES DURING WORK IN STATE INFORMATION SYSTEMS DOI: http://dx.doi.org/10.14420/en.2013.5.5

Artyom Yuryevich Nagdaev, Candidate for a Master’s Degree of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration,

e-mail: yhyji13@gmail.com.

Abstract.

Keywords:

The above-mentioned article, on the basis of practical experience of usage of electronic signatures in state authority bodies, as well as of law enforcement of rules and regulations of the Federal Law dated 06.04.2011 No 63-FZ «On electronic signature» in the course of exchange of electronic documents signed with electronic signature, an approach is considered of practicability of usage of one type of electronic signature by authorized persons of state authority bodies during work in several state information systems. state information system, electronic document flow, electronic signature.

Society is witnessing a significant year-to-year growth in the role of state information systems (hereafter referred to as SIS), both in the everyday life of the population and in the activities of the officers of public authorities. The very fact that information about government services is published on the Internet promotes the active transposition of state administrative procedures into the electronic space. Ubiquitous access to Internet services also has created a situation in which public services are, more and more often, rendered in the electronic space, rather than in the offices of civil servants and on the premises of state institutions.

An analysis of Russian laws, particularly those that were in force before 2009, leads to the conclusion that there are few regulatory legal acts that govern activities in the area of information law. According to its definition, «information law» is the branch of law that regulates social relations in the informational sphere and provides for the secure satisfaction of the informational needs of individuals, governmental authorities and economic agents .1 We find it necessary Bachilo I.L., Lopatin V.N., Fedotov M.A. Informatsionnoje pravo [Information Law] / under the editorship of B.N. Topornin. – Saint Petersburg: Publishing House of R. Aslanov «Juridicheskij tsentr Press», 2005.

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34 to emphasize the imperative need to develop legislation that would govern the creation and operation of SIS and that would enable the practical application of information law in the activities of public authorities.

As the foremost goal, the development of SIS implies the establishment of certain procedures that should be applied in the practical exchange of data in an electronic format, particularly a method to guarantee the relevance of electronic documents in the law. As specified in Section 4 of Article 11 of the Federal Law dated 27.07.2006 No. 149-FZ «On information, data processing technologies and information protection» and in Section 3 of Article 75 of the Arbitration Code of Judicial Practice of the Russian Federation, the status of an electronic document that is signed by means of an electronic signature (hereafter referred to as ES), shall be acknowledged to be equivalent to a hard copy version of the document.

Thus, the direction of an electronic document by means of SIS causes actions and legal effects that are relevant in the law.

The first law to govern relations in the course of electronic document management in Russia was the Federal Law dated 10.01.2002 No. 1-FZ «On electronic signatures» (hereafter referred to as Law 1-FZ). The aforementioned law neither provided for a distinction between different types of electronic digital signatures (hereafter referred to as EDS) nor set serious requirements for the software tools of certifying centers, whose function was to produce signature key certificates. However, Law 1-FZ specified the following elements: the information systems that could use an EDS key (incidentally, the law established only two variants); the procedure to suspend the signature key certificate; and the cases in which the seal must be substituted, etc. Many experts state that the main drawback of Law 1-FZ was that it prescribed the use of only one EDS technology and it did not provide for regulation aimed at consolidating the rights of a legal body to use its EDS. Supposedly, these very disadvantages prevented EDS from being applied on a large-scale basis across Russia.

The Federal Law dated 06.04.2011 No. 63-FZ «On electronic signatures» (hereafter referred to as Law 63-FZ) eliminated the shortcomings of Law 1-FZ and proved to be an important step in conducting paperless business. The law entitled natural and legal persons to receive an ES, which allowed them to perform actions that are relevant in the law in electronic form.

Law 63-FZ stipulates three types of ES, and furthermore, in contrast to the provisions of Law 1-FZ, it specifies that, for ordinary and non-expert signatures, an ES verification key certificate is not necessary. The Law also prescribes that an ordinary ES is sufficient when citizens use the public services Internet portal.

That provision allows citizens to receive an ordinary ES at no extra cost. In order to obtain authorisation on the public services website, only the insurance policy number for the individual account (the Russian abbreviation SNILS) and the password that was received are needed. We can expect a good social effect if two processes are integrated, i.e., if a person can simultaneously obtain an ES along with the universal electronic card and scanner device that are required to use it at home.

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The cancellation of Law 1-FZ was scheduled for July 1, 2012; however, at that time, public authorities were not technically prepared to fully execute Law 63FZ, so the schedule was revised, and the enactment of the new law was deferred until July 1, 2013. Regulatory legal acts in the field of information law were being elaborated in an effort to enact them by that time; however, it became evident that their authors were confounding terms and were unable to determine the type of ES that participants in the electronic data exchange process should use in a particular SIS. Below you will find a list of the regulatory legal acts that prescribe some type of ES for participants in the electronic data exchange process. Here, we refer to the type of ES that can be used only by legal entities and their employees.

- The Federal Law dated 21.07.2005 No. 94-FZ «On the placement of goods delivery orders, work orders, orders concerning the rendering of services for state and municipal needs» (hereafter referred to as Law 94-FZ) – qualified ES. - The Federal Law dated 05.04.2013 No. 44-FZ «On the contractual system for purchasing goods, work, and services to satisfy state and municipal needs» (hereafter referred to as Law 44-FZ) – enforced non-expert ES. - The RF Government Regulation dated 09.02.2012 No. 111 «On the electronic signature to be used by executive authorities and local authorities in arrangements concerning electronic data exchange between them, on the procedures specifying how to use it, and on the establishment of the requirements aimed at assuring compatibility between the electronic signature instruments» – qualified ES. - The RF Government Regulation dated 08.11.2013 No. 1005 «On bank guarantees used in the context of the Federal Law «On contractual systems for the purchase of goods, work, and services to satisfy state and municipal needs» – non-expert ES. - The RF Government Regulation dated 12.10.2013 No. 913 «On the ratification of the Regulation that specifies the placing of the following kinds of information on the official website of the Russian Federation on its informationtelecommunications network Internet: the placement of goods delivery orders, work orders, orders concerning the rendering of services for state and municipal needs; the data that is subject to placement in the unified information system in the field of purchasing goods, work, and services to satisfy state and municipal needs before this system is set into operation» (hereafter referred to as Regulation 913) – the type of ES is not stipulated.

The «regulation mess» that we have just demonstrated has resulted in a legal collision concerning the usage of different types of ES. Let us compare the management of electronic documents to the management of so-called hard copies, i.e., paperless to paper records (incidentally, paralleling the two is a common practice). For hard copy versions of documents, the authorised signatory signs various kinds of paper records using his or her own manual signature, and the signatory usually uses the same hand (left or right) in all cases. Thus, in

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36 nature, different types of manual signatures simply do not exist. There is simply a manual signature, and in many cases, it must coincide with the signature that appears on the main document that serves as the citizen’s proof of identity. At the same time, in dealing with the signing of computer-based documents that concern purchases of goods, work, and services to satisfy state and municipal needs, we can observe a different situation, as described below.

Starting on January 1, 2014, Law 44-FZ came into effect, at which time, Law 94-FZ became inoperative. To sign the documents specified by Law 44-FZ, one must use the enforced non-expert ES that is issued by the certifying centers that have obtained an accreditation of compliance with the requirements of Law 63-FZ. At the same time, Section 5, Article 112 of Law 44-FZ specifies that, before the unified information system is set into operation, according to the procedure fixed by the Russian Federation Government, the information that is subject to placement in this system is to be posted on the official website, although this site is being run and serviced by rules that were in effect before Law 44-FZ came into force.

As noted above, Regulation 913 prescribes the placement of information on the private part of the official website, to which access is denied without the ES that is received after registration on the official website.

Simultaneously, certain alterations have been introduced in the Order that address users’ registration on the official website. That Order was ratified by the joint Decree of the Ministry of Economic Development and Trade of the Russian Federation and the Exchequer Chamber of Russia and is dated 10.08.2012 No. 508/14н. Some of the alterations concerned the norms that prescribe the issuance of ES verification key certificates to the representatives of organisations that are entitled to them.

All of the regulations listed above have left open the question of the particular ES that must be used on the official website before the unified information system is set into operation.

This problem could be avoided if the Ministry of Public Communications of Russia would offer to introduce alterations into Law 63-FZ in the section that addresses the use of enforced qualified ES by public authorities in those SIS that presently require the usage of an enforced non-expert ES. If the aforesaid alterations are introduced into Law 63-FZ, civil servants that represent public authorities will have the right to sign documents on behalf of their organisations using the same enforced qualified ES both in those SIS that currently call for the usage of the enforced qualified ES and in those SIS in which the enforced non-expert ES is currently required.

It turns out that the conception of «the unified space of credence of the ES» in practice, has manifested itself only in the unification of certifying centres, while officials that represent public authorities must have several types of ES (at the very least, two different ES). The number of types of ES in operation may even grow if the information system operator intentionally fixes the limitations that

Artyom Yuryevich Nagdaev «Practicability of usage of several types of electronic signatures during work in state information systems»

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currently exist in the field of the use of ES verification key certificates.

The following conclusion suggests itself: To make the process of using electronic services simpler and quicker for citizens, the enactment of such provisions that would allow citizens to apply an ordinary ES is advisable.

Furthermore, the fact that it is currently possible to obtain authorisation on the public services website with the help of qualified ES verification key certificates will make this easier. At the same time, we suggest that the officials of public authorities should be treated as a separate segment and should be allowed to use qualified ES in all SIS. This will not even require SIS operators and developers to make adaptations to the application software because the form of the ES verification key qualified certificate is already stipulated in the regulatory framework, and accredited certifying centres publish all required information to ensure the verification of this type of ES on the Internet.

References 1. Bachilo I.L., Lopatin V.N., Fedotov M.A. Informatsionnoje pravo [Information Law] / under the editorship of B.N. Topornin. – Saint Petersburg: Publishing House of R. Aslanov «Juridicheskij tsentr Press», 2005.

2. Dolinskaja V.V. Informatsionnyje otnoshenija v grazhdanskom oborote // Zakony Rossii: opyt, analiz, praktika. – 2010. – № 4. [Information Relationship in Civil Turnover // Laws of Russia: experience, analysis, practice.]

3. Kirillovykh А.А. Pravovyje aspekty mekhanizma electronnogo vzaimodeistvija v zakonodatelstve ob elektonnoi podpisi // Advokat. – 2011. – № 11. [Legal Aspects of the Electronic Interaction Mechanism in Legislation about the Electronic Signature.]

4. Saul S.N. Problemy pravoprimenenija informatsionnogo prava v dejatelnosti Federalnogo kaznacheistva // Finansovoje pravo. – 2012. – № 11.

[Problems of the Enforcement of Information Law in the Activities of the Federal Exchequer Chamber // Publishing House «Financial Law».]

5. Semizorova E.V. Aktualnyje voprosy pravovogo regulirovanija obespechenija juridicheskoi znachimosti elektronnykh dokumentov // Rossijskaja justitsija. – 2011. – № 2. [Topical Questions of Legal Regulation in Ensuring Relevance in Law for Electronic Documents // Publishing House «Russian Justice».]

6. Federal Law dated 10.01.2002 No. 1-FZ «On electronic signatures».

7. Federal Law dated 27.07.2006 No. 149-FZ «On information, data processing technologies and information protection».

8. Federal Law dated 06.04.2011 No. 63-FZ «On electronic signatures».

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LEGAL PROBLEMS IN CORRUPTION PREVENTION PROCEDURE OF ARRANGEMENT OF CONFLICT OF INTEREST IN FEDERAL STATE AUTHORITY BODIES DOI: http://dx.doi.org/10.14420/en.2013.5.6

Sergey Mikhaylovich Altunin, Candidate for a Master’s Degree of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration,

e-mail: asiris-9@mail.ru.

Abstract.

Keywords:

The issue of arrangement of conflict of interest in state service is one of key tools of anti-corruption enforcement. That’s why generalization, systematization and reduction to unified pattern of conflict of interest typical situations is important work on perfection of regulatory and legal framework of anti-corruption enforcement in the RF. The paper offers methods of unification during elaboration of normative legal documents and attachment of (interdepartmental interindustry) nature to them. conflict of interest, anti-corruption enforcement, normative legal acts, law-making, duplication, economy principle of law-making, review of typical situations.

Lawmaking is an activity of subjects vested with rule-making competence that is aimed at developing juridical norms. Lawmaking comprises the immediate actions of persons that are authorized by governmental authorities for the following purposes: elaboration, adoption, alteration, introduction of amendments or cancellation of regulatory legal acts.

The lawmaking process is intended to develop mechanisms for the regulation of social relations and is conditioned by objective reality. The dynamics of social life and practice in regard to the formation of legal relationships, and of socioeconomic, political, and spiritual requirements – in short, all of the changing aspects of diverse social life – make it necessary to establish new legal norms that suitably match the social changes, as well as to modify and cancel obsolete rules.

Altunin S.M. «Procedure of arrangement of conflict of interest in federal state authority bodies»

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Juridical science has elaborated a sophisticated lawmaking theory1.

The system of regulatory legal acts for the state as a whole, as well as for a certain branch of law, as implied by the very concept of a system, is understood to be a balanced coordination of all the regulatory acts that serve as components of the general law system, through which they perform cumulative functions. Among other things, this means that there is a need to bring the acts that are in force and new acts that are being adopted into proper correlation, together with the need for a concise interrelationship between common and special provisions and between acts having higher and inferior legal effects. A newly adopted normative act must fit within the conceptual and juridical hierarchy of the acts of the law. At the same time, it must not allow duplication, conflict and chronological errors in regard to other acts.

In October 2012, the Ministry of Labor and Social Protection of the Russian Federation issued the Memorandum «On restrictions, prohibitions, and requirements for official conduct and the prevention of law violations connected with corruption in federal civil service». The Memorandum provided definitions of basic concepts in the field of the prevention of corrupt practices, listed restrictions, obligations and requirements for official conduct and the liability for the nonobservance of the prescribed restrictions and prohibitions, and provided recommendations regarding behavior in situations that could result in corruption of some form. They also published informational tables that summarize the fundamental rights and duties of civil servants that are accompanied by lists of restrictions and prohibitions related to civil service2. Methodologically, this review was based on research in the area of conflicts of interest3.

Among other things, the Memorandum contained a review of typical situations in the field of civil services that involve conflicts of interest in the Russian Federation, along with procedures that are aimed at regulating such situations.

For example: Arzamasov Yu.G. Teorija i praktika vedomstvennogo normotvorchestva v Rossii: monografija. – Moscow: Jurlitinform, 2013 [Theory and Practice of Departmental Rule-Making in Russia: Monograph]; Baranov V.M. Kontseptsija zakonoproekta. – Nizhnii Novgorod, 2003 [Concepts of Draft Legislation]; Boshno S.V. Normativnye pravovye akty Rossiiskoi Federatsii. – Moscow, 2004 [Regulatory Legal Acts of the Russian Federation]; Tolstik V.A. Ierarkhija istochnikov rossiiskogo prava. – Nizhnii Novgorod, 2002 [Hierarchy of the Russian Law Sources]; Kutafin O. Istochniki konstitutsionnogo prava RF. – Moscow, 2004 [Sources of the RF Constitutional Law]; Tikhomirov Ju.A., Kotelevskaja I.V. Pravovye akty: uchebno-metodicheskoe i spravochnoe posobie. – Moscow, 2004 [Legal Acts: Guidance Manual and Reference Aid].

2 Pamjatka ob ogranichenijakh, zapretakh, trebovanijakh k sluzhebnomu povedeniju i preduprezhdeniju korruptsionnykh pravonarushenii, svjazannykh s prokhozhdeniem federalnoi gosudarstvennoi grazhdanskoi sluzhby v Ministerstve truda i sotsialnoi zashchity Rossiiskoi Federatsii. – Moscow: Mintruda, 2012 [Memorandum on restrictions, prohibitions, requirements to official conduct and to prevention of law violations connected with corruption in federal civil service in the Ministry of Labour and Social Protection of the Russian Federation.]

3 For example: Dedov D.I. Konflikt interesov. – Moscow: Volters Cluver, 2009 [Conflict of Interest]; Batishcheva M.A. Sluzhebnye razoblachenija i konflikt interesov // Sovremennye issledovanija sotsialnykh problem. – 2012. – № 9 (17) [Official Disclosures and Conflict of Interest // Modern Studies of Social Problems.]; Veklenko S.V, Panov S.L. Printsipy protivodeistvija korruptsii // Vestnik Voronezhskogo Instituta MVD RF. – 2010. – № 3. – P. 20-24 [Principles of Counteracting Corruption // Herald of Voronezh Institute of the Ministry of Internal Affairs of the Russian Federation.]; Grib V.G., Oks L.E. Protivodeistvie korruptsii. – Moscow: MFPA, 2011. [Counteracting Corruption].

1

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40 The review considers a set of typical situations in which there is a need to replace an individual who accepts a public position that could result in the creation of a conflict of interest for the civil officer. Per se, this review presents the opposite side of the prohibitions that are being superimposed on civil officers in civil service and that are stipulated by Article 17 of the Federal Law No. 79-FZ «On civil service».

Inter alia, according to the Law, the following is prohibited: - participating, for a fee, in the activities of the regulatory body of a profitmaking organisation, except for cases that are specified by the federal law; - performing entrepreneurial activity; - acquiring securities that can earn income in cases that are specified by the federal law; - acting as a proxy or a third-party representative in the state agency in which one takes on the duties of a civil servant, except as otherwise provided by the Federal Law No. 79-FZ and other federal laws; - receiving, in cases in which it is connected with the discharge official duties as civil servants, rewards from natural and legal persons (in the form of gifts, remunerations in money, loans, services, payment for entertainment, vacations, transportation expenses and other rewards). The gifts received by civil servants in the context of protocol events, business trips and other formal events are duly considered to be federal property and the property of the constituents of the Russian Federation. Per se, these rewards are subject to the conveyance of the property by the civil servant to the state agency in which he or she has assumed duties in the civil service; herein, the Deed of Acceptance shall be signed. This procedure is followed in all cases unless otherwise provided for by the Civil Code of the Russian Federation. After having conveyed the gift that was received by the civil servant in the context of a protocol event, an official business trip or some other formal event, he or she can buy it according to the order set up by the regulatory legal acts of the Russian Federation; - leaving the territory of the Russian Federation on matters connected to the performance of their official functions at the expense of natural and legal persons, except for official business trips that conform with the international treaties of the Russian Federation or on a reciprocal basis by agreement between the federal state authorities, the state authorities of the constituents of the Russian Federation and the state agencies of other states or international and foreign organisations; - divulging information or using it for purposes unconnected with the civil service, if according to the federal law, this information is recognized as confidential or operation one, and it came to the knowledge of the civil servant in connection with his or her position in a public office; - engaging in, for a fee, activities without the written permission of the employer’s representative, if they are financed exclusively by foreign nations, international and foreign organisations, foreign citizens or persons destitute of nationality, except as otherwise provided by the international treaties of the

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Russian Federation or the legislation of the Russian Federation, and so on.1 Thus, the authors of the Memorandum analysed statistics that reflected the working results received by the Committees on compliance with the requirements regarding the official conduct of civil officers and the regulation of conflicts of interest in different authorities and identified the most common situations in which civil officers have violated the prohibitions stipulated by Federal Law No. 79-FZ «On civil service» and by Federal Law No. 273-FZ «On corruption prevention»; they presented their academic research results in the form of a case study.

Furthermore, the authors make comments on these typical cases in the context of the legislation of the Russian Federation and provide recommendations regarding measures that should be taken, in their opinion, to prevent and resolve conflicts of interest.

Interests, in civil service, differ from interests in commercial activities. First, in civil service, «interest» is understood to be the expected results of the official activities of state and local government officers that conform to their enforcement powers, and thus, the results of their activities are based on regulatory legal acts.

In civil service, «interest» presents the expected results of the civil officer’s official activities. These expected results stem from their activities, which are subject to their enforcement powers and normative acts. Accordingly, a conflict of interest emerges when civil officers do not observe the customary rules of conduct, norms, codes, and prohibitions.

The specific character of the interests of civil officers is attributed to the fact that they address solutions to social problems. For this reason, it contradicts the very nature of their services if state and local government officers add a particularly subjective nature to their official interests in which they strive to derive a personal benefit, rather than to promote the public interest. Furthermore, in the course of performing their official duties, civil servants represent the interests of society and the state; hence they represent the objective aspect of the interests. The following conclusion has been reached by many researchers: «We ought to note the erroneousness of attaching to the individual’s interests an exclusively subjective nature (interpreted as his or her personal drive to concentrate on self-profit) or an objectively-subjective nature (interpreted as an interest that can contain both objective, i.e., unaffected by individual intention, and subjective features). In fact, the interest of the person or of the social class, as well as the interest in general is an objective entity».2 However, we should not overlook the fact that all individuals are unique in their own way and everyone has different goals and motives, which inevitably results in the following objective fact: People can form groups according to Federalnyi zakon ot 27 ijulja 2004 g. № 79-FZ «O gosudarstvennoi grazhdanskoi sluzhbe Rossiiskoi Federatsii» (statutory wording dated 02.07.2013) (Section 7 Article 19, Section 10 Article 22, Section 12 Article 48 of the Federal Law № 79-FZ) [The Federal Law dated 27.07.2004 No. 79-FZ «On civil service for the Russian Federation»] 2 Atamanchuk G.V. Teorija gosudarstvennogo upravlenija. – Moscow: Omega-L, 2004. – P. 99. [The State Administration Theory.]

1

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42 various patterns, but for all of the patterns, it is always true that personal interests will persist within any group.

We should also take into account that the self-interest of a civil servant can emerge in cases in which a profit is received or can be received by a certain set of people. That set of people can include the servant’s family members (not only parents, spouses, children, siblings of the civil servant, but also his or her in-laws).

This is why the term «relatives and/or other persons whose profit can be associated with the self-interest of the civil servant» is used to determine who may belong to such a set.

At the same time, it is necessary to understand that the very concept of profit per se is not defined in Russian legislation. We assume that the following definition of profit can be used for our purposes: Profit is a privilege or preference that the civil officer can derive from his or her official position, as well as other advantages (e.g., that can be derived from running a nonprofit institution or owning property and securities).

There are a variety of situations in which civil servants may perform their official duties that fall within the aforementioned definitions of conflicts of interest.

In view of the diversity of the private interests of civil servants, a comprehensive checklist of such situations is not practical.

Nevertheless, the review under analysis lists typical situations in which it can be anticipated that it is highly probable that a conflict of interest may manifest itself, irrespective of the civil officer’s departmental identity. However, the set of such situations must somehow correlate with the particular administrative entity to which the civil servant belongs because it is not possible to unify everything.

The Ministry of Labour and Social Protection sent the typical situations review, in the form of a letter, to the federal state agencies of the Russian Federation (Letter dated 15.10.2012 No. 18-2/10/1-2088 «On the review of typical situations of conflicts of interest in the civil service of the Russian Federation and on the procedures aimed at their regulation»).

The Letter was circulated by the decision of the Chief Executive of the Presidential Administration of the Russian Federation, S.B. Ivanov. With the goal of ensuring a unified approach to the regulation of conflicts of interest, the Letter ordered the federal state agencies to prepare, on the ground of said review, Memorandums for their civil officers that would reflect the specific features of their particular courses of action. Meanwhile, the Ministry of Labour of Russia was obliged to monitor the process in which the federal state agencies issued the Memorandums specified by the Letter, and to report the results to the Presidium of the Council on Corruption Prevention under the President of the Russian Federation.

Several federal agencies of state authorities issued such Memorandums, including the Ministry of Internal Affairs, the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Finance, the Prosecutor-General’s Office, the Federal Customs Service, and the Federal Agency of the Officers of Justice. All but one of the above listed agencies merely copied the Letter with no alterations, i.e.,

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no specific features were reflected in their Memorandums. Only the Ministry of Justice modified the typical situations so that they reflected the character of the activities at that particular agency.

Moreover, some other federal agencies of state authorities, e.g., the Ministry of Defence, the Ministry of Emergencies (MChS), the Ministry of Education and Science, the Ministry of Agriculture, the Ministry of Public Health, the Federal Migration Service, and the Federal Antimonopoly Service, do not have such Memorandums at all. These agencies, in their corruption prevention documents, refer to Federal Law No. 79-FZ «On civil service» and Federal Law No. 273-FZ «On corruption prevention» and to the prohibitions and rules of conduct for civil officers that are specified by these laws.

For example, the Ministry of Defence produced the following regulatory documents to address corruption prevention issues: - Decree of the Minister of Defence of the Russian Federation dated 11.05.2010 No. 444 «On the procedure of reporting to the Minister of Defence of the Russian Federation about attempts to impel members of the Military Forces of the Russian Federation into law infringements connected with corruption»; - Decree of the Minister of Defence of the Russian Federation dated 22.04.2011 No. 555 «On the adoption of the Code of Ethics and Official Conduct for Federal civil servants of the Ministry of Defence of the Russian Federation»; - Decree of the Minister of Defence of the Russian Federation dated 28.06.2011 No. 1050 «On the procedure of reporting to the employer representative about attempts to impel a federal civil servant of the Ministry of Defence of the Russian Federation into law infringements connected with corruption»; - Decree of the Minister of Defence of the Russian Federation dated 10.06.2013 No. 445 «On the approval of the composition of the Committee of the Ministry of Defence of the Russian Federation on the compliance with requirements for official conduct for federal civil servants and for regulating conflicts of interest».

All federal agencies of state authorities produced similar documents.

At the same time, the above listed agencies did not issue Memorandums. It was the Ministry of Labour of Russia that was obliged to monitor how federal state agencies prepared their Memorandums and report the results of its monitoring to the Presidium of the Council on Corruption Prevention under the President of the Russian Federation. Evidently, this assignment was not duly executed.

Herein we must emphasize the following point: The lawmaking process is characterized by a number of distinguishing activities, such as the elaboration, adoption, introduction of additions and amendments, or cancellation of regulatory legal acts; in contrast, the process of the duplication of the same regulatory legal acts in different agencies cannot be interpreted as lawmaking, because, in the course of this work, new norms are not created, but are merely copied from certain documents that already are in effect.

In the adoption of regulatory legal acts, the principle of economy in lawmaking activity must be borne in mind. In the first place, this principle implies the elimination of duplication in regulatory legal acts, as well as the mutual provision of

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44 information by different legal entities during the stage when a legislative proposal is being prepared. The economic efficiency requirement means that the number of acts concerning the same subject-matter should be reduced to a minimum to achieve the improved readability of regulatory materials, to make its application process easier, and to optimally facilitate recordkeeping and filing functions.

Presumably, it will increase efficiency if, during the development of regulatory legal acts on the federal level, lawmakers generate acts that are universal in form and cover practically all spheres of social life in such a way that they have an interdepartmental (interindustry) character. The application of this approach would allow the elimination of the duplication of the same document in all federal agencies of state authorities.

The regulatory legal act will have a unified form and its validity will be extended to all agencies without exception.

This approach can be exemplified by a regulatory legal act that was developed by the Ministry of Labour and Social Development of the Russian Federation and the Ministry of Energy in 2001. This act is called the «Interindustry job safety rules (safety regulations) for the maintenance of electric installations»; it regulates the relationships that relate to this matter and is valid for all agencies and branches.

It is a unified document that eliminates the duplication that results from the development of many identical regulatory legal acts by federal authorities that may differ from each other only in the names of the regulatory bodies.

This means that civil officers would have more time to work for the benefit of the country instead of participating in the pseudo-lawmaking process of duplicating regulations.

Indeed, if it becomes necessary to develop a regulatory legal act that will relate to a certain agency’s specific character, such an act will be easy to develop on the basis of the corresponding interdepartmental document by «giving it another brush», so that it exhibits the true and correct view of the specific conditions that exist in a particular branch. Then, accordingly, a regulatory legal document that is, in fact, new, will be adopted that will adhere to all of the requirements and principles of lawmaking.

References 1 Arzamasov Yu.G. Teorija i praktika vedomstvennogo normotvorchestva v Rossii: monografija. – Moscow: Jurlitinform, 2013. [Theory and Practice of Departmental Rule-Making in Russia: Monograph.]

2 Atamanchuk G.V. Teorija gosudarstvennogo upravlenija. – Moscow: Omega-L, 2004. – P. 99. [The State Administration Theory.]

3 Baranov V.M. Kontseptsija zakonoproekta. – Nizhnii Novgorod, 2003.

[Concepts of Draft Legislation.]

4 Batishcheva M.A. Sluzhebnye razoblachenija i konflikt interesov // Sovremennye issledovanija sotsialnykh problem. – 2012. – № 9 (17). [Official Disclosures and Conflict of Interest // Modern Studies of Social Problems.]

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5 Boshno S.V. Normativnye pravovye akty Rossiiskoi Federatsii. – Moscow, 2004. [Regulatory Legal Acts of the Russian Federation.]

6 Veklenko S.V., Panov S.L. Printsipy protivodeistvija korruptsii // Vestnik Voronezhskogo Instituta MVD RF. – 2010. – № 3. – P. 20-24. [Principles of Counteracting Corruption // Herald of the Voronezh Institute of the Ministry of Internal Affairs of the Russian Federation.]

7 Grib V.G., Oks L.E. Protivodeistvie korruptsii. – Moscow: MFPA, 2011.

[Counteracting Corruption.]

8 Dedov D.I. Konflikt interesov. – Moscow: Volters Cluver, 2009. [Conflict of Interest.]

9 Kutafin O. Istochniki konstitutsionnogo prava RF. – Moscow, 2004.

[Sources of RF Constitutional Law.] 10 Pamjatka ob ogranichenijakh, zapretakh, trebovanijakh k sluzhebnomu povedeniju i preduprezhdeniju korruptsionnykh pravonarushenii, svjazannykh s prokhozhdeniem federalnoi gosudarstvennoi grazhdanskoi sluzhby v Ministerstve truda i sotsialnoi zashchity Rossiiskoi Federatsii. – Moscow: Mintruda, 2012.

[Memorandum on the restrictions, prohibitions, requirements for official conduct and on the prevention of law violations connected with corruption in federal civil service in the Ministry of Labour and Social Protection of the Russian Federation.]

11 Decree of the Minister of Defense of the Russian Federation dated 10.06.2013 No. 445 «On approval of the composition of the Committee of the Ministry of Defense of the Russian Federation on compliance with requirements for official conduct for federal civil servants and the regulation of conflicts of interest».

12 Decree of the Minister of Defense of the Russian Federation dated 11.05.2010 No. 444 «On the procedure of reporting to the Minister of Defense of the Russian Federation about attempts to impel members of the Military Forces of the Russian Federation into law infringements connected with corruption».

13 Decree of the Minister of Defense of the Russian Federation dated 22.04.2011 No. 555 «On adoption of the Code of Ethics and Official Conduct for Federal civil servants of the Ministry of Defense of the Russian Federation».

14 Decree of the Minister of Defense of the Russian Federation dated 28.06.2011 No. 1050 «On the procedure of reporting to the employer representative about attempts to impel a federal civil servant of the Ministry of Defense of the Russian Federation into law infringements connected with corruption».

15 Tikhomirov Ju.A., Kotelevskaja I.V. Pravovye akty: uchebnometodicheskoe i spravochnoe posobie. – Moscow, 2004. [Legal Acts: Guidance Manual and Reference Aid.] 16 Tolstik V.A. Ierarkhija istochnikov rossiiskogo prava. – Nizhnii Novgorod, 2002. [Hierarchy of the Russian Law Sources.]

17 Federalnyi zakon ot 27 ijulja 2004 g. № 79-FZ «O gosudarstvennoi grazhdanskoi sluzhbe Rossiiskoi Federatsii». [The Federal Law dated 27.07.2004 No. 79-FZ «On civil service for the Russian Federation».]

46

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COMPARISON OF METHODS OF ANTI-CORRUPTION EXPERT EXAMINATION ESTABLISHED BY THE RF GOVERNMENT AND ADOPTED BY THE RF CONSTITUENT ENTITIES DOI: http://dx.doi.org/10.14420/en.2013.5.7

Tengiz MerabovichTatishvili, Ph.D. Candidate of Political Science and Law Department of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration, e-mail: 000-5555@mail.ru.

Alimbek Tuzemovich Khidzev, Ph.D. Candidate of Political Science and Law Department of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration, e-mail: alimbek.hidzev@gmail.com.

Abstract.

Keywords:

The article makes comparative study of methods of anti-corruption analysis of regulatory legal acts and draft regulatory legal acts established by the RF government and methods of regulatory bodies of the Russian Federation constituent entities. Within the framework of the paper the methods are considered as exemplified by several RF constituent entities, comparative study is made between them, their major faults, distinctive features and contemporary trends are revealed. methods of anti-corruption expert examination of regulatory legal acts, corruptogenic factors, anti-corruption expert examination, expert examination of laws, corruption, anti-corruption enforcement, constituent entities of the Federation, law-making process, lawmaking.

As noted by Kirill Kabanov, Chairman of the non-governmental organization the National Anti-Corruption Committee, the size of the Russian corruption market in 2012 exceeded the fantastic amount of 300 billion dollars.1 This corresponds to approximately 10 trillion rubles, which is comparable with the Russian budget Kirill Kabanov, Chairman of the National Anti-Corruption Committee // lenta.ru. URL: http://lenta.ru/ conf/kkabanov.

1

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revenue for 2014 of about 13 trillion rubles.

The causes of this ubiquitous corruption and its deep roots in Russian society are system-based and interrelated with all spheres of life – political, social, economic etc. An unambiguous answer to the question of how to root out corruption and its accompanying phenomena is not possible, because corruption is not a one-time phenomenon; on the contrary, it has a long historical train behind it. There is a point of view that, as philistines say, the day-to-day realities of life are unimaginable without corruption. This points to how closely and tightly that phenomenon is entwined with daily life.

At the same time, it is beyond question that corruption in the sphere of the management of the state is an undoubted evil, a «scourge to society», trampling on the canons of civil rights and equitable principles, blunting the effectiveness of the management of the state and bringing about a growth in bureaucracy and officialdom in their worst manifestations. All of this suggests the undoubted need for the enforcement of anti-corruption measures. Although legal authors have often talked of how the problem of corruption leads to the failure of law enforcement, the legal analysis of the texts of legal regulations and of draft legal regulations now presents itself as a real countermeasure against corruption. The procedure for this analysis is called the methodology for the anti-corruption expert examination of legal regulations and draft legal regulations.

The methodology for anti-corruption expert examination is understood to be that adopted by the RF Government Decree of February 26, 2010 No 96, «On the anti-corruption expert examination of legal regulations and draft legal regulations.

Methodology for anti-corruption expert examination of legal regulations and draft legal regulations» (which will be known hereafter as the Methodology).

The Methodology is followed by the federal bodies of state power, the bodies of constituent entities, local self-government authorities and independent experts accredited for the anti-corruption expert examination of legal regulations and draft legal regulations, in the course of the anti-corruption expert examination of legal regulations and draft legal regulations. The Methodology lists certain corruptogenic factors which may be detected in a regulatory legal act during an anti-corruption expert examination and which are the criteria for the assessment of the subsequent corruption risk they may entail. These characteristics are the following: а) corruptogenic factors giving a law enforcement official unnecessarily wide limits of discretion or the possibility of an abusive application of exceptions from the general rules, such as: - a wide margin of judgement; - the determination of legal competence according to the formula «has a right»; - a selective change to the extent of rights; - an excessive freedom for subordinate rule-making; - the passing of legal regulations beyond the scope of reference; - the filling of a legislative vacuum with the help of subordinate acts, in the absence of a legislative delegation of jurisdiction for this purpose; - the absence or incompleteness of administrative procedures; and - the rejection of tendering (auction) procedures. b) corruptogenic factors consisting of indefinite, exigeant and/or burdensome

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48 demands on citizens and organizations, such as: - the presence of overstated demands on a person to allow him to realize a right that belongs to him; - the abuse of the rights of an applicant by bodies of state power or local self-government authorities (or their functionaries); and - juridico-linguistic uncertainty.

The Methodology can be considered to be a document describing a sequence of actions and a method to be used for analysis in the assessment of the corruptogenicity of a regulatory legal act. Alongside with this, the federal bodies of state power do not limit the public authorities of the RF constituent entities.

It is certainly true that the legal acts of the public authority of an RF constituent entity cannot conflict with legal acts of federal significance. Nevertheless, the methodology adopted at the level of an RF constituent entity may provide for additional arrangements for anti-corruption analysis – for example, an extended list of corruptogenic factors.

An analysis of the legislation of the RF constituent entities can lead one to the conclusion that in most cases there is no separate act containing a methodology for anti-corruption expert examination. Moreover, in the cases in which such a document exists, the legislators have not provided any substantial changes or additions. Let us give some concrete examples.

In the Republic of Bashkortostan the anti-corruption expert examination of draft legal regulations is performed by the legal department of the administration of the urban district of the city of Ufa in the Republic of Bashkortostan, simultaneously with legal expert examination within the framework of the administrative regulations of the urban district of Ufa.1 A particular aspect of the methodology for anti-corruption expert examination in the Republic of Bashkortostan is the performance of anti-corruption expert examination simultaneously with legal expert examination.

In the Republic of Buryatia, anti-corruption expert examination is also performed «in the course of legal expert examination».2 The decision on the performance of anti-corruption expert examination is taken by the same body that issued the normative act: «…expert examination of the corruptogenicity of decrees of the President of the Republic of Buryatia and decrees of the Government of the Republic of Buryatia is performed under separate instructions of the President of the Republic of Buryatia and the Government of the Republic of Buryatia…».3 In Krasnodar Territory, a Procedure for the performance of anti-corruption expert examination of legal regulations and draft legal regulations has been adopted by the Legislative Assembly of the Krasnodar Territory, which is contained in the Decision of June 23, 2010, No 2034-P, «On the procedure for the performance of anti-corruption expert examination of legal regulations and draft Art. 2.1 of the «Procedure for the performance of anti-corruption expert examination of the Decisions of the Head of Administration of the urban district of Ufa City in the Republic of Bashkortostan (and their drafts) of normative nature, regularized by the Decision of the Head of Administration of the urban district of Ufa City in the Republic of Bashkortostan», No 6524 of December 25, 2009.

2 Art. 3 Ch. 2 of the Decree of the Government of the Republic of Buryatia of October 28, 2009 No 398, «On the procedure for the performance of anti-corruption expert examination of normative legal acts and draft normative legal acts».

3 Ibid.

1

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legal regulations adopted by the Legislative Assembly of the Krasnodar Territory».

Basic features are listed in this procedure that distinguish this methodology from the Methodology.

Anti-corruption expert examination of legal regulations is performed in the course of monitoring legislation under the instructions of the Chairman of the Legislative Assembly of the Krasnodar Territory, and takes place in the course of the legal expert examination, in accordance with Articles 71 and 72 of the Regulations of the Legislative Assembly of the Krasnodar Territory.1 Anti-corruption expert examination of the drafts of legal regulations is performed by the legal administration in accordance with the Methodology. Anticorruption expert examination of a regulatory legal act is performed within 30 days of the day on which a Decision is made to bring it into force. According to the results of the anti-corruption expert examination of the regulatory legal act, the legal administration will draw up conclusions in which it specifies: - the grounds for the performance of the anti-corruption expert examination; - reference details for the regulatory legal act (type of regulatory legal act, date of its adoption or signing, its registration number and its name); - any corruptogenic factors that were detected (with a precise explanation of their location in the regulatory act); and - the proposals for the elimination of the corruptogenic factors that were detected.

In some cases the conclusion reflects the negative consequences which could occur if the corruptogenic factors that were detected were not eliminated.

If no corruptogenic factors are detected, a corresponding record is made in the conclusion. The same procedure is followed for draft legal regulations.

An anti-corruption expert examination of a draft regulatory legal act is performed by specialists who have played no part in its development. In the course of the anti-corruption expert examination of a draft regulatory legal act, a representative of the subject of the right of legislative initiative can be brought in to give explanations about the draft. The anti-corruption expert examination of draft legal regulations is performed within 14 days of the date on which the draft is put forward for expert examination. The results of the anti-corruption expert examination of a draft legal regulation are reflected in the conclusion of the legal administration. The result of the anti-corruption expert examination is a basic part of the conclusion of the legal expert examination of a draft regulatory legal act, and occupies a separate place.

If a disagreement arises about the assessment of the corruptogenic factors specified in the conclusion, the committees of the Legislative Assembly of the Krasnodar Territory form working groups to prepare an agreed decision.

After the aforementioned steps have been taken, there is a reference to the Methodology.

In the Kemerovo Region, an issue such as the «failure to set the term for the adoption of a regulatory legal act, the adoption of which is provided by the draft subject to expert examination», was classified as a corruptogenic factor, but the methodology developed by the Centre for Strategic Developments (CSD) in 2004 Approved by the Decision of the Legislative Assembly of the Krasnodar Territory of December 8, 2004, No 1174-P. 1

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50 did not classify the non-adoption of a legal regulation as a corruptogenic factor.

At the present time, according to a decision of the Board of Administration of the Kemerovo Region of April 23, 2010, No 160, «…anti-corruption expert examination of legal regulations and draft legal regulations is performed in accordance with the Methodology for anti-corruption expert examination of legal regulations and draft legal regulations approved by the Decree of the Government of the Russian Federation of February 26, 2010 No 96».

The methodology of the Khanty-Mansijsk Autonomous District has been developed on the basis and in furtherance of a memorandum to experts on the primary analysis of the corruptogenicity of a legislative act (Centre for Strategic Developments, 2004). Acting on the basis of these developments of the CSD, the Methodology nevertheless included as a corruptogenic factor the conflict of legal regulatory acts. To detect a conflict, it is necessary to sift not only the legal regulation which is being examined, but also the regulatory acts at various levels on similar matters, and in order to detect a conflict between the acts an expert has to decide whether statutory rules for the selection of a higher priority regulation exist and how clear they are. If there are no such rules, he has to draw the conclusion that a corruptogenic factor is present. According to the Supplement to the Decision of the Governor of the Khanty-Mansijsk Autonomous District – Yugra of December 8, 2011 No 175 Article 2, «An anti-corruption expert examination is performed in accordance with the Methodology for anti-corruption expert examination adopted by the Decree of the Government of the Russian Federation of February 26, 2010 No 96, «On the anti-corruption expert examination of legal regulations and draft legal regulations»».

An anti-corruption expert examination of acts adopted by local selfgovernment authorities is performed, as a rule, by the legal services of a corresponding local self-government authority. For acts adopted by representative bodies of municipalities, an expert examination can be performed by the legal service not only of the staff of a representative body of the municipality, but also by the staff of a local administration taking part in the coordination of the draft decision with the representative body. It is also possible to organize a common joint internal non-departmental anti-corruption expert examination.

According to the memorandum on the performance of the anti-corruption expert examination of municipal regulatory acts of Astrakhan, «…primarily it should be determined whether the subject of legal regulation of the acts relates to matters of local significance or delegated powers or is classified by federal laws, by laws of the constituent entities of the Russian Federation, or by charter of a municipal unit as a power of local self-government authorities.

Secondly, it is recommended that the expert determines exactly what kind of local self-government authority (in accordance with the structure and powers of local self-government authorities determined by the charter of the municipal unit) is responsible for the regulation of the legal relations.

Thirdly, the limits of legal regulation for the local self-government authorities within the framework of those legal relations should be determined (as a rule, they are reflected in the preliminary statement of an act).

After determining the competence of the local self-government authority that adopted the act, the regulatory legal act should be considered with reference to other regulatory legal acts regulating legal relations in the particular sphere.

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After this, one should go on to a direct analysis of corruptogenicity (an anticorruption expert examination) of the regulatory legal act….»

On the basis of the materials presented above, the following conclusions can be drawn: 1 As a universal pattern for the performance of an anti-corruption expert examination, the Methodology adopted by the RF government in 2010 is used.

2 In some cases, as described above, the legislative bodies of the constituent entities adopt acts that are supplemental to the Methodology, but the list of corruptogenic factors is, as a rule, not supplemented. The changes relate, to a large extent, to procedural elements, and are connected with specific aspects of a region.

3 The information presented in official information from governmental and municipal bodies often refers to an obsolete methodology of performance of anticorruption expert examination that was laid down by the RF Government Decree of 2009.

As a general principle, the Methodology for the anti-corruption expert examination of legal regulations and draft legal regulations is a basis for the performance of an anti-corruption expert examination, and the authorities of the RF constituent entities are often oriented towards that legal act. The Methodology was initially developed in 2009 and underwent changes in 2010, resulting in the reduction of the number of corruptogenic factors included in the methodologies of the various constituent entities. Undoubtedly, the Methodology is not ideal, but in the absence of other anti-corruption legal acts it seems advisable for it to be further improved.

References 1. Kabanov K., Chairman of the National Anti-Corruption Committee // Lenta.ru URL: http://lenta.ru/conf/kkabanov.

2. Decision of the Legislative Assembly of the Krasnodar Territory of June 23, 2010 No 2034-P, «On the Procedure for the performance of anti-corruption expert examination of legal regulations and draft legal regulations adopted by the Legislative Assembly of the Krasnodar Region».

3. Decree of the Government of the Republic of Buryatia of October 28, 2009 No 398, «On the procedure for the performance of anti-corruption expert examination of normative legal acts and draft normative legal acts».

4. RF Government Decree of February 26, 2010 No 96 «On anti-corruption expert examination of legal regulations and draft legal regulations».

5. Decision of the Governor of the Khanty-Mansijsk Autonomous District – Yugra of December 8, 2011 No 175, «On approval of the Procedure for the performance of anti-corruption expert examination of normative legal acts of the Khanty-Mansijsk Autonomous District – Yugra and draft legal regulations of the Khanty-Mansijsk Autonomous District – Yugra and revocation of some Decisions of the Governor of the Khanty-Mansijsk Autonomous District – Yugra».

6. Decision of the Legislative Assembly of the Krasnodar Territory of June 23, 2010 No 2034-P, «On the Procedure for the performance of anti-corruption expert examination of legal regulations and draft legal regulations adopted by the Legislative Assembly of the Krasnodar Territory».

7. Supplement No 2 to the Procedure for performance of anti-corruption

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52 expert examination of Decisions of the Head of Administration of urban district Ufa City of the Republic of Bashkortostan (their drafts) of normative nature // Decision of the Head of Administration of urban district Ufa City of the Republic of Bashkortostan No 6524 of December 25, 2009.

8. The Regulations of the Legislative Assembly of the Krasnodar Territory approved by decision of the Legislative Assembly of the Krasnodar Territory of December 8, 2004 No 1174-P.

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Е ННЫ ВО ПРАОВРЕМЕТВА И С УДАРС ГОС

COMPARATIVE LAW RESEARCH PUBLIC AND PRIVATE LEGAL ACTS (COMPARATIVE STUDY OF THE USA AND THE RF) DOI: http://dx.doi.org/10.14420/en.2013.5.8

Ruslan Yuryevich Magomedov, Military serviceman, Process Engineer (oil products quality control), Head of Fuel Materials Service of military unit, Ph.D. candidate of Russian Presidential Academy of National Economy and Public Administration, e-mail: magomedov_r_u@bk.ru.

Abstract.

Keywords:

This paper presents a comparative legal analysis of legal acts of the Russian Federation and the United States of America, researches the notion and characteristics of normalization, including various approaches to its understanding in the Russian and American legal systems, studies the main types of the US Congress legal acts – bills – in the context of their orientation (private and public), shows the difference of the US private and public bills in historical and modern aspects. The article’s final part presents the author’s reasoning on possibilities of using the American legislative practices in the Russian practice. The author comes to the conclusion about impossibility and untimeliness of assimilation of the American practices in the Russian practice, despite a steady tendency of legal systems of the two states towards rapprochement. legal act, legislative act, law, normalization, legal norms, bill, private bill, public bill, US Congress, orientation of legal regulation.

1 Normativity plays many roles in state and social life. Normativity, as a concept and an attribute of legislation, includes order, levels, and standards.

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54 When considering their legal implications, the predominant role of norms and regulations is that they secure social communications associated with the formation, alteration, and termination of legal relations. They result in a parameter that is socially designated. The function of normativity as a legislative property, in establishing a formal frame for social relations, characterizes a certain political and social structure, the ideals and priorities of a nation’s evolution, and the peculiarities of the secured or stimulated norms and regulations in the field of public relations; it also demonstrates the level of regularity, the standards, and the features of the politically organised society of the present age. If we understand that normativity is an essential element of legal evolution, then the development of legislation and the formation of its political and informative core, as well as its social and regulatory substance, cannot take place without choices being made regarding a politically acceptable model for social regulation, a mode for the manifestation of state regulatory control, and the subject matter to which lawmakers should attend.

As we know, the resolutions that are adopted to enable legal regulation are commonly called legal acts. They establish a code of conduct for a wide circle of addressees or for just one individual. These norms have a binding character. The legal act, which is understood to be a document that establishes the content of a resolution of a particular matter and that is generally valid, is one of the chief tools for the juridical regulation of activities within a national state, its territorial constituents, or a corporation.

Depending upon whether a particular legal act is oriented toward many addressees (general law directivity) or toward an individual (individualised directivity), all regulating legal acts are divided into normative and non-normative acts. This division reflects important juridical legal relations because it generates a certain binding effect.1 Despite the fact that legal theory expressly defines the attributes of the regulatory legal act, law enforcement practice periodically necessitates the official correction of some of its distinctive features, characteristics or qualities.

The Supreme Court of the Russian Federation has made an effort to disclose and indicate the properties that it recommends should be considered in distinguishing the kind of regulatory legal act that is subject to appeal in the federal court.2 The Supreme Court identifies the following set of essential features that characterise a regulatory legal act: 1) it was enacted by an authorized agency of state power, a local authority or a civil servant; Jurtaeva E.A. Normativnost’ zakonodatelstva: sovremennye moduljatsii v rossiskom pravotvorchestve // Zhurnal rossiiskogo prava. – 2012. – № 11. – P. 28-39. [The Normative in the Context of Legislation: Contemporary Modulations in Russian Lawmaking // The Russian Law Magazine.]

2 Postanovlenie Plenuma Verkhovnogo Suda Rossiiskoi Federatsii ot 29 nojabrja 2007 № 48 «О praktike rassmotrenija sudami del ob osparivanii normativnykh pravovykh aktov polnostiju ili v chasti». [The Decree of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2007 No. 48 «On the practice of investigating cases concerning the litigation of regulatory legal acts, fully or in a part».]

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2) it was enacted in accordance with the established order; 3) it contains legal norms (rules of conduct) that are binding on an unspecified set of people; 4) the norms (rules) it contains are designed for repeated application; 5) the legal norms (rules of conduct) specified by the regulatory legal act must be directed either at the legal regulation of the process of the formation of certain social relations, or at the alteration / termination of legal relations that already exist.

The attributes of the norms of a legal act, in legal theory, are conventionally established with reference to the legal regulations that the act contains. If the legal orientation of the legal document contains rules of law (legal norms), this is considered to be grounds to treat it as a regulatory legal act.1 Accordingly, to acknowledge a particular legal document as a regulatory legal act, it is necessary to confirm that its legal orientation, by its juridical content, is a legal norm, which means that it has the following attributes: a general regulatory orientation (directivity); an obligatory character; and authorised enactment.

The general regulatory orientation of a normative act is understood as follows: The provisions established by the act are designed to be continuously in force (their efficacy is unreserved by one or several particular actions); they are directed at a non-personified (not specified in terms of persons) set of subjects; and they are designed for an indefinite number (unlimited set) of cases (i.e., whenever we refer to legal relations that are settled by a legal norm). Traditionally, this set of attributes, which characterise a legal rule, has been considered sufficient to determine the main parameters of the general regulatory directivity of the act. However, the list of attributes above does not address whether it is factually possible to enforce the efficacy and the application of the specific norm specified by the act as a normative regulator.

Furthermore, norms and regulations dictate that there is another attribute that they must have, i.e., the generality of a legal regulation: One legal norm, when it is issued, provides for the regulatory control of the legislative corpus as a whole; it does not require repeated enactment on other rule-making levels or in other acts.

One of the attributes of a norm is the binding character of the regulatory legal act. It manifests itself as a rule of procedure that provides for the juridical protection of the fact that the norm is observed and performed: Non-observance, non-performance or non-application of an established obligation entitles interested parties to apply to authorised agencies and persons, including the court, with claims to restore the factual efficacy of the norm.

Regulatory control in Russia, where legislation principally adheres to the characteristic properties of the continental system of law, is exercised in such Boshno S.V. Normativnyi pravovoi akt: razvitie priznakov v pravoprimenitelnoi praktike // Arbitrazhnyi I grazhdanskii protsess. – 2009. – №№ 4, 5, 6. [Regulatory Legal Acts: Evolution of Attributes in Law Enforcement Practice // Arbitration and Civil Procedure.]

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56 a way that, in the establishment of the normative system, direct links and correlations are simultaneously formed and structured between norms – those that are defined absolutely and in part, general and special norms, and versatile and specialized norms. Concepts in the continental system of law are defined directly within the context, which does not imply the establishment of any kind of mediation mechanism.

2 One of principal sources of law in the USA is the so-called statutory law, which is composed of legal norms that are established by the legislative bodies of the state. During the entire time that they have existed and functioned, the US parliament (Congress) and the legislative (representative) bodies of the legal entities that comprise the American federation (the states), have been executing an important function, i.e., they have been taking part in the development of the legal norms that regulate life in society. These norms inevitably are integrated into the restatement (code of norms) and are established by the judicial branch in the context of performing investigations and reaching determinations in concrete cases (judicial precedents).

As is well known, contemporary American legislation comprises the following forms of legal acts: the federal Constitution, the constitutional acts of the constituent entities of the federation (the states), and the federal and regional laws. In addition, it is important to note that codes of laws exist both on the federal level (consolidated law) and on the level of the individual states, which, taken as a whole, can be defined as the systematised assemblage of the legal acts (laws) of the USA and are framed according to different classification criteria.

In addition, another source of American law comprises the legal acts of a normative character that are adopted by various bodies having executive power.

The emergence and evolution of this source of law has resulted from the legal opportunity of the executive power to delegate the authority (the phenomenon of a transference of power) of legislative power to regulatory bodies that exist on the federal level and are under its purview. In law enforcement practice, however, administrative acts (decrees, directives, and instructions) that theoretically are adopted for the purpose of providing more specialised and detailed elaboration of corresponding federal legislative acts are instead, in many instances, merely substitutes for federal legislation.

In the context of the matter under consideration, we consider it necessary to give special attention to the normative (legal) acts of the US parliament (Congress).

Such normative acts are usually called bills. It is commonly supposed that the bill is a legislative proposal that is adopted in identic editions by both chambers of the American parliament. It is these very acts, after they pass through all of the legislative stages (and obtain the President’s approval and are published), that achieve the legal status of law (statute). There is an opinion that US bills, as normative acts of the highest legal efficacy, are a tribute to British tradition, dating

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back to colonial times.1 However, the USA not only adopted Great Britain’s conception of the bill; it also adopted its system as a whole: As in British practice, it is customary to classify all bills adopted by the American Congress into those that are private and those that are public. Such a division in the Acts of Parliament already had existed in medieval England.

Let us consider the essential characteristics for each of these kinds of legal acts: 1) Public bills represent standard (as understood by the continental system of law) legislative proposals that concern the adoption of general universal rules of conduct that are matters of public interest and address the needs of the nation as a whole. In contemporary US (and British) legislation, such bills are adopted primarily in reference to matters of federal legislation and various aspects of state administration, i.e., those matters that are of concern to the whole society and meet the requirements of norms and regulations.

2) Private bills are legal acts related to the activity of a person (a private individual), which is understood as either a physical or legal person; they function, in fact, as acts having individual application. Originally, such acts were adopted exclusively upon personal requests directed to one of the chambers of the Parliament. Consequently, such acts were applied for the purpose of satisfying the specific need they for which were adopted. There is a belief that the first such private bill in Anglo-American legislation was an Act of Parliament that was adopted in 1266; the bill prohibited, under the threat of spiritual and secular punishment, the worship of the Earl of Leicester as a saint or a holy man because the church had pronounced an anathema on him and he had died under a curse.

So, it would be correct to state that, presently, private bills are legislative proposals that regulate matters that affect the interests of a certain group of people or the interests of the public that populates a designated area.

Furthermore, there are different procedures for the adoption of private and public bills. The procedural norms in this sphere serve as illustrative evidence that American legislators are fully aware of some incongruence between the legal nature of private bills and the nature of conventional legislative acts.

The main differences in the procedural questions that concern the adoption of the two types of bills are as follows: First, only the members of one of the houses of Congress can initiate legislation to introduce a private bill, whereas not only members of Congress, but also cabinet ministers can initiate the introduction of public bills in Congress (moreover, cabinet ministers exercise this right more often, and their legislative proposals are given a higher priority than other proposals when appointments are made for readings).

Second, to adopt a private bill, a simplified procedure is applied in which a Politicheskaja sistema SShA: Aktualnye izmerenija. – Moscow: Nauka, 2000. [The Political System of the USA: Topical Dimensions. – Publishing House «Science».]

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58 clause-by-clause discussion of a legislative proposal is excluded, whereas the content of a public bill is elaborated in detail, both in plenary meetings and within the framework of House committees.

Third, private bills can be adopted by a lesser quorum as compared with public bills (in fact, not infrequently, they are adopted directly by the legislative committees of a corresponding profile).

Moreover, private and public bills are never read during the same House session, as they are contained in different appointment calendars. For example, the House of Representatives of the United States Congress allocates separate days for sessions in which private bills are read and those in which other kinds of legislative proposals are considered.1 As is known, the House of Representatives has four appointment calendars: - The Union Calendar, which determines the schedule for the readings of public bills that in some way refer to finances, assignments, and budgetary funds.

It is assumed that such bills can be initiated only by the government, and they have the privilege to be brought up for proceedings any time the House conducts a session; - The House Calendar, which determines the readings schedule for public bills other than those in the first category (public bills that do not refer to financial matters); - The Private Calendar, which determines the readings schedule for private bills that have entered the House; - The Consent Calendar appoints the readings schedule for insignificant and uncontroversial legislative proposals; both private and public bills can fall into this category.

In the Senate of the US Congress, the appointment procedure is much the same.2 Based on the properties of private bills listed above and the procedures that are followed to adopt them, we find that it is possible to conclude that they represent a «power extension» in which the authority that is generally attributed to law enforcement bodies is assumed by the national parliamentary body. In other words, the private bill serves as a peculiar method to transfer a function that is normally performed by the judicial branch to the legislative branch. The very existence of private bills places emphasis on the systemic features of the common law; it practically «enables» such a situation because no real and final separation of powers exists (although it has been declared by the Constitution of the US): New (novel) rules of law are adopted by the courts, while the parliament issues law enforcement acts.

3 In contemporary jurisprudence, matters that are related in some way Chudakov M.F. Konstitutsionnoe Pravo SShA. Osnovnye instituty. – Moscow, 2003. [The Constitutional Law of the USA. Principal Institutions.]

2 United State Senate. URL: http://www.senate.gov/pagelayout/committees/d_three_sections_with_ teasers/committees_home.htm.

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to problems involving the interaction and rapprochement of different legal frameworks are very topical indeed. Many researchers attribute this to the fact that presently, the fundamental types of legal frameworks are moving closer and closer together. This phenomenon is called convergence in law. At the same time, it is necessary to keep in mind that the notion and content of legal convergence are highly controversial and unspecified. This is proven by the fact that neither science nor the practice of law has produced a unified approach concerning a general interpretation of such a development. Legal convergence is sometimes correlated with the processes of globalisation, integration, and unification.

Corresponding questions have been repeatedly raised and debated in connection with the rapprochement of the legal frameworks of Russia and the USA, especially in the consideration of the issue of Russia as a WTO member, as this organisation was built upon the principles of the American system of law.

Thus, in answering the question of whether we really need this borrowing, particularly when it concerns types of legislative acts, one may base an answer upon the following reasoning: In effect, the American system, which divides laws into private and public bills, is an extension of the powers of the supreme legislative body of the state. We mean that the private bills of the US Congress present a peculiar form of individual law enforcement acts that are issued by the legislator, rather than by the body that enables legislation, as it should be. The way in which the private bill appeared was logically predetermined by the evolution of the system commonly referred to as the law of precedent (other names for this system are: law of practice, case law, decisional law, judicial legislation, judiciary law, and magisterial law). The reason for this is that, in the context of this system, all acts of all public authorities acquire a generally binding character, and, as a consequence, they acquire the status of norms and regulations, and for this reason, the division of powers related to enactment of legal acts has been lost, which is very characteristic of civil or continental law. Furthermore, in view of modern trends in the US legal framework, the law is gaining more influence as compared with judicial precedent, and consequently, Congress undertakes functions that it did not formerly perform; it now adopts not only acts that have universal efficacy in terms of their initial orientation (public bills), but also acts that were originally adopted for a limited set of people, and that later acquire the attribute of being compulsory for all (private bills).

We assume that the aforementioned practice does not fit within the framework of the Russian system of law and the Russian interpretation of what is normative. The introduction of public and private bills into Russian legislative practice appears to be an unjustified accretion of the powers of the Russian parliament; this practice would authorise it to engage in functions that have been alien to it, namely, by authorising it to adopt law enforcement acts. In addition, the use of a simplified procedure to enact statutory legal acts can lead to more significant problems if the issue of compliance with the rules and norms of the juridical technique is taken into consideration; with regard to the content of statutes, the refusal to discuss a legislative proposal in detail can lead to the emergence of

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60 statutory wording that is not sufficiently elaborated. It can also result in insufficient correlation between the norms specified in a certain legislative proposal and the norms of other legal acts.

Therefore, we consider that the borrowing of the described American system by the Russian system of law is contrary to its ethos and can result in the loss of its distinctiveness.

References 1. Boldyrev O.Ju. Nekotorye problemy i osobennosti osparivanija normativno-pravovykh aktov v Rossiiskoi Federatsii // Konstitutsionnoe i munitspalnoe pravo. – 2013. – № 2. – P. 64-71. [Some Problems and Peculiarities of the Contestation of Regulatory Legal Acts in the Russian Federation // Constitutional and Municipal Law.] 2. Boshno S.V. Normativnye pravovye akty Rossiiskoi Federatsii: nauchnoprakticheskoe izdanie. – Moscow: Globus, 2005. [Regulatory Legal Acts of the Russian Federation: Academic and Practical Guide.]

3. Boshno S.V. Normativnyi pravovoi akt: razvitie priznakov v pravoprimenitelnoi praktike // Arbitrazhnyi I grazhdanskii protsess. – 2009. – №№ 4, 5, 6. [Regulatory Legal Act: The Evolution of Attributes in Law Enforcement Practice // Arbitration and Civil Procedure.]

4. Konstitutsii zarubezhnykh gosudarstv: uchebnoe posobie / compiled

by V.V. Maklakov. – Moscow: Izdatelstvo BEK, 2001. [Constitutions of Foreign States: Study Guide.]

5. Konstitutsija Rossiiskoi Federatsii: [prinjata vsenarodnym golosovaniem 1993 g.] // Rossiiskaja gazeta. – 2009. – January 21. [Constitution of the Russian Federation: adopted by a nationwide vote in 1993.]

6. Politicheskaja sistema SShA: Aktualnye izmerenija. – Moscow: Nauka, 2000. [The Political System of the USA: Topical Dimensions. – Publishing House «Science».]

7. Postanovlenie Plenuma Verkhovnogo Suda Rossiiskoi Federatsii ot 29 nojabrja 2007 g. № 48 «О praktike rassmotrenija sudami del ob osparivanii normativnykh pravovykh aktov polnostiju ili v chasti». [The Decree of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2007 No. 48 «On the practice of investigating cases concerning the litigation of regulatory legal acts, fully or in part».]

8. Pravovye akty: otsenka posledstvii: nauchno-prakticheskoe posobie / A.V. Kashanin, Ju.A. Tikhomirov, S.V. Tretijakov and others; executive editor Ju.A. Tikhomirov. – Moscow: Jurisprudentsija, 2011. [Legal Acts: An Impact Assessment – Academic and Practical Guide.]

9. Chudakov M.F. Konstitutsionnoe Pravo SShA. Osnovnye instituty. – Moscow, 2003. [The Constitutional Law of the USA. Principal Institutions.]

10. Jurtaeva E.A. Normativnost’ zakonodatelstva: sovremennye moduljatsii v rossiskom pravotvorchestve // Zhurnal rossiiskogo prava. – 2012. – № 11. – P. 28-39. [The Normative in the Context of Legislation: Contemporary Modulations in Russian Lawmaking // The Russian Law Magazine.]

61

ERN LAW MOD D N A TES STA

COMPARATIVE STUDY OF LICENCING ACTIVITIES IN THE FIELD OF NUCLEAR ENERGY USE IN THE RF AND THE USA DOI: http://dx.doi.org/10.14420/en.2013.5.9

Olga Nikolayevna Doronina, Candidate of Legal Sciences, Assistant Professor, Deputy Head of Division of State Administration and Law, Assistant Professor of the Department of State and Municipal Service Legal Groundwork of Russian Presidential Academy of National Economy and Public Administration, e-mail: ondoronina@gmail.com.

Shamil Vladimirovich Tarba, Master of Jurisprudence, Chief Specialist of Division of Project and Survey Work of the Department of Project and Survey Work, R&D Organization and Permitting Activities of OJSC «Rosenergoatom Concern», e-mail: s_tarba@mail.ru.

Abstract.

Keywords:

The paper considers and analyses Russian and foreign practices of organization of licensing activities in the field of nuclear energy use. On the basis of the analysis, recommendations are made on reduction of term of NPP licensing. The problem of reduction of NPP construction time limits is an actual one for the State Atomic Energy Corporation «Rosatom», because on 20.09.2008 the Government of the Russian Federation approved the Program of activities of the State Atomic Energy Corporation «Rosatom» for a long-term period (2009–2015), according to which it is planned to construct, at least, 10 nuclear power plant units. In order to fulfil that program, it is necessary to optimize current time limits and schedules of NPP construction taking into account international practices. Licensing of the activities in the area of nuclear energy use plays a critical role in that process. atomic power engineering, State Atomic Energy Corporation Rosatom, Rosenergoatom, effectiveness of nuclear power engineering, licensing in nuclear power engineering, environmental impact, ecology, electric power generation, nuclear power engineering, public hearings in atomic power engineering, state policy in the field of nuclear energy use, atomic legislation.

Nuclear power is an alternative to using organic fuel for generating electric power. Fossil fuel reserves are depreciating, while using it as an energy source harms the environment. Requirements of the Kyoto Protocol signed by most countries of the world have been enacted. In compliance with these requirements, thirty nine industrial States undertake to reduce emissions of carbon dioxide and

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62 five other substances, which, when released in the atmosphere, pose a threat of rising temperatures on Earth.

Emissions into the Earth’s atmosphere are mostly caused by burning fossil fuel. Due to coal-fired power plant operations, 24 billion tons of carbon dioxide are emitted annually into the Earth’s atmosphere. More and more environmentalists are coming to the conclusion that nuclear (atomic) energy use constitutes the best way to reduce carbon dioxide emissions into the atmosphere.

Key advantages of nuclear (atomic) energy compared against other means of electric power generation include: - low and sustainable prices for electric power (as opposed to fuel costs); and - minimum environmental impact.

Over the last years, oil prices have dramatically increased, bringing about an increase in price for electric energy produced by thermal power plants using fossil fuel.

According to estimates of the Organization for Economic Cooperation and Development (OECD), nuclear energy is remarkably lower in cost than electric energy generated using oil, coal and gas, due to its high mining and transporting costs.

When comparing nuclear fuel against coal and gas, electric energy prices are roughly the same, provided that the costs of mining and transporting are low.

A comparison of production costs of electric energy generated using various kinds of fuel is shown in Chart 11.

Chart 1. Comparison of production costs of electric energy produced using various kinds of fuel Electric energy price stability in the long run is the key advantage of nuclear power. As illustrated in Chart 1, the structure of electric energy production costs is fundamentally different from the pricing structures of other energy industries. This Центы США/квт час / US Cent per kilowatt-hour; Топливо / Fuel; Эксплуатация / Operation; Инвестиции / Investments; Нефть по высокой цене / High-priced oil; Нефть по низкой цене / Lowpriced oil; Газ по высокой цене / High-priced gas; Газ по низкой цене / Low-priced gas; Уголь по высокой цене / High-priced coal; Уголь по низкой цене / Low-priced coal; Атомная энергия / Nuclear energy.

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is because the production cost for nuclear energy is mainly determined by capital investments to nuclear power plant construction rather than fuel costs, unlike oil, gas and coal. This fuel component in the total cost of electric energy generated by a nuclear power plant does not exceed 25 per cent, while in the case of thermal power plants using fossil fuel, it equals to 50 to 80 per cent. This results in highly sustainable prices for nuclear energy against fuel price fluctuations, which is demonstrated in Chart 2.

Chart 2 illustrates the effect of fuel (gas, coal, uranium) price duplication on the production costs of electric energy generated through these energy sources.

Such enhancement of fuel component results in the growth of electric energy production costs for nuclear power plants by 9 per cent, for coal-fired power plants by 31 per cent, and for gas-fired ones by 66 per cent1.

Chart 22. Effect of fuel (gas, coal, uranium) prices duplication on electric energy production cost Atomic (nuclear) energy is one of the red-hot sectors of the global economy.

Atomic (nuclear) energy development is boosting the growth of a wide variety of new disciplines in research and innovation, engineering and physical science etc., and is intended to meet the growing needs of mankind for fuel and energy when non-renewable resources are limited.

According to the Power Reactor Information System (PRIS) database of the International Atomic Energy Agency, 435 power units are currently operating worldwide generating about 17 per cent of the global energy production, while 69 power units are under construction. According to Yukiya Amano, Director General of the International Atomic Energy Agency, the capacity of nuclear power plants operating worldwide is equivalent to 372 GW and is expected to increase by 80– 90 GW3.

Activities related to nuclear energy use exhibit specific features, one of them being increased hazard when compared against other global industries, bringing about a cross-border radiation effect. Licensing activities in the sphere of nuclear energy use should be regarded as one of the fundamental factors ensuring proper JSC Atomstroyexport. URL: http://www.atomstroyexport.ru. Стоимость вырабатываемой электроэнергии, евро/МВт час / Electric energy production cost, Euro per megawatt-hour; Газ / Gas; Уголь / Coal; Атомная энергия / Nuclear energy; Базовая цена / Basic price; Изменение стоимости топлива в % / Percentage of fuel prices change.

3 Nuclear News Agency. URL: http://atominfo.ru.

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security, both nationally and globally. This is why the activities of nuclear (atomic) energy operators are subject to licensing and tight governmental control.

Pursuant to the Federal Law as of November 21, 1995, No.170 «On nuclear energy use», «a permit (license) authorizing to perform works in the field of nuclear energy use is understood to be a properly executed document, confirming the right to exercise certain kinds of activities, provided that the safe use of atomic energy objects and works is secured. Any activity in the field of atomic energy use subject to licensing by safety government control agencies is not allowed without permit (license) for exercising thereof».1 The safety issues that were entrenched in the Federal Law «On State Atomic Energy Corporation «Rosatom»2 not only retained continuity with the Federal Law «On nuclear energy use»3, but were considerably enhanced by defining in Federal Law the status, mission, authorities, functions, activities, rights and obligations of State Corporation «Rosatom»4.

The term «licensing activity» was first seen in the Law of the RSFSR «On entrepreneurs and entrepreneurial activities»5, which provided State regulation for businesses by licensing certain types of nuclear energy use activity. The specific list of entrepreneurial activities was supposed to be defined by the Government of the Russian Federation.

Over 50 federal laws were adopted over the next three to four years with respect to licensing to one extent or another, while the Government of the Russian Federation approved several dozens of statutes and regulations on licensing procedures. This created substantial difficulties for both the licensing authorities and for the applicants.

The Federal Law «On licensing of certain kinds of activities»6 constituted a new step of statutory regulation of licensing business activities. This law determined the scope of licensing authorities, extended the powers of federal executive agencies in this area, implemented the court procedure for license revocation, defined the list of licensed activities and reduced the number of these activities to 208.

In order to eliminate the faults contained in the Federal Law «On licensing of certain kinds of activities»7, the laws were subsequently improved through the enactment of Federal Law «On licensing of kinds of activities»8 which reduced the number of licensed activities to 50.

The groundwork for licensing activities in the field of atomic energy use was set out in the Federal Law «On atomic energy use». It established that the licenses for exercising certain kind of activities were to be issued to operators performing works and providing services in the sphere of atomic energy use.

Federal Law of 21 November 1995 No. 170-FZ “On nuclear energy use”.

Federal Law of 01 December 2007 No. 317-FZ “On State Atomic Energy Corporation “Rosatom”.

Federal Law of 21 November 1995 No. 170-FZ «On nuclear energy use».

4 Federal Law of 01 December 2007 No. 317-FZ «On State Atomic Energy Corporation «Rosatom».

5 Law of the RSFSR of 25 December 1990 No. 445-I «On entrepreneurs and entrepreneurial activities» (repealed).

6 Federal Law of 25 September 1998 No. 158-FZ «On licensing of certain kinds of activities» (repealed).

7 Federal Law of 25 September 1998 No. 158-FZ «On licensing of certain kinds of activities» (repealed).

8 Federal Law of 04 May 2011 No. 99-FZ «On licensing kinds of activities».

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The introduction of Regulation No. 865 «Concerning approval of the Statute on licensing activities in the sphere of atomic energy use»1 set out the procedures for granting new and renewed licences, as well as listing the types of licences in the sphere of atomic energy use and listing the licenced activities.

Regulation No. 280 «On licensing activities in the sphere of atomic energy use»2 was also approved, enabling businesses to obtain one combined licence for several kinds of activities, for instance, placing and constructing a facility for atomic energy use, rather than requiring a separate license for each of these activities.

Under Russian law, licensing both in the sphere of atomic energy use and with respect to separate kinds of activities is comprised of the following steps and actions: - obtaining licenses, re-issuing the documents to confirm the possession of the license; - revoking licences; - making amendments as to the terms of license validity being the integral part thereof; and - control and supervision of licensees’ compliance with the licensing requirements effected by the licensing authorities.

Pursuant to Regulation No. 401 «On Federal Service for Environmental, Technological and Nuclear Supervision»3, the licensing authority in the sphere of atomic energy use is the Federal Service for Environmental, Technological and Nuclear Supervision (Rostechnadzor)4.

Rostechnadzor grants licenses for activities related to nuclear materials and radioactive substance use, as well as for many other activities established by Regulation No. 280 «On licensing activities in the sphere of atomic energy use»5.

Most organizations of the Rosatom State Corporation and their partners are licensed by Rostechnadzoк. The procedure for granting and terminating licenses is established by the Regulation on Rostechnadzor.

The licensing procedure can be shown by an example of Rosenergoatom Concern OJSC. Licenses for these kinds of activities are granted pursuant to Chart 3.

Regulation of the Government of the RF of 14 July 1997 No. 865 «Concerning approval of the Statute on licensing activities in the sphere of atomic energy use» (repealed).

2 Regulation of the Government of the RF of 29 March 2013 No. 280 «On licensing activities in the sphere of atomic energy use».

3 Regulation of the Government of the RF of 30 July 2004 No. 401 «On Federal Service for Environmental, Technological and Nuclear Supervision».

4 Regulation of the Government of the RF of 30 July 2004 No. 401 «On Federal Service for Environmental, Technological and Nuclear Supervision».

5 Regulation of the Government of the RF of 29 March 2013 No. 280 «On licensing activities in the sphere of atomic energy use».

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Chart 31. Demonstration of the licensing procedure by an example of Rosenergoatom Concern OJSC One of the first steps towards obtaining a Rostechnadzor license is to arrange and conduct public hearings. The procedure for conducting public hearings is governed by the Regulations for Scheduled Business and Other Activities Environment Impact Assessment in the Russian Federation approved by the Decree of Goscomecologiya RF «On approval of Regulations for Scheduled Business and Other Activities Environment Impact Assessment in the Russian Federation»2, implemented for the purpose of Federal Law «Concerning environmental expert evaluation»3.

The Federal Law «On nuclear energy use»4 also provides for general public participation in discussing state policy in the sphere of nuclear energy use and establishing the procedure and arrangement for discussing matters related to nuclear energy use.

The terms of the public hearings exist in the laws of the Russian Federation within Environment Impact Assessments (EIA) of planned commercial and other activities and within the Supporting Materials for Licenses (SML).

In compliance with clause 1.1 of the EIA Regulations and within the scope of EIA, «…public hearings constitute complex measures conducted within scheduled business and other activities environment impact assessment aimed at awareness of the public in order to reveal and consider social preferences in the context of impact assessment procedure». Лицензия / license; РТН / Rostechnadzor; Комплекс документов / Case of documents; ОВОС / EIA; Обсуждение ОВОС / EIA discussion; МОЛ / SML; Обсуждение МОЛ / SML discussion; ГЭЭ / State environmental expert evaluation; Положительное заключение ГЭЭ / Positive state environmental expert evaluation; Протоколы общественных обсуждений / Public discussions.

2 Decree of Goscomecologiya RF of 16 May 2000 No. 372 «On approval of Regulations for Scheduled Business and Other Activities Environment Impact Assessment in the Russian Federation».

3 Federal Law of 23 November 1995 No. 174-FZ «Concerning environmental expert evaluation».

4 Federal Law of 21 November 1995 No. 170-FZ «On nuclear energy use».

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Within the SML and in accordance with clause 1 article 14 of the Federal Law «Concerning environmental expert evaluation»1, State environmental expert evaluation shall be conducted upon availability of the following materials subject to expert evaluation: - documents containing the materials of the EIA; and - public discussions of the SML as subject of the state environmental expert evaluation arranged by local authorities.

According to Rostechnadzor guidelines, the advised structure of supporting materials for licenses should comprise the following: - environment impact evaluation due to carrying out licensed activities in the sphere of nuclear energy use; and - details relating to the involvement of public decision-making with respect to licensed items in the sphere of nuclear energy use.

Further, in accordance with Chart 3, the minutes of the EIA public hearings are included into the EIA materials constituting a part of the SML. The SML is also subject to public hearings and is submitted to the State Environmental Expert Evaluation in order to obtain expert testimony. State Environmental Expert Testimony is to be enclosed with the license granting materials according to clauses 10 and 11 of Regulation on licensing and forwarded to Rostechnadzor for the purposes of obtaining a license.

It is stated by the Regulations on Rostechnadzor that a license is granted for a minimum term of three years. As a matter of practice, the licenses issued by Rostechnadzor are valid on average for a period of five years, which is far less than the nuclear energy facilities useful lifetime.

Applications for renewing a current license due to expire are subject to the same procedure as applying for a new license, including the expert evaluation, as no simplified procedure is provided by the Regulations for extending existing license term. This results in multiple licensing of the same activities and nonproductive expenses of operating and other companies for preparation and expert evaluation of the documents of application.

The licensing practices in the sphere of nuclear energy use were imported to Russia from foreign countries. In foreign practice, license law is detailed and calls for serious attention and study by Russian specialists. The experience of the United States of America (USA) to improving laws in the sphere of nuclear energy use will be discussed for illustrative purposes.

In the USA, the Nuclear Regulatory Commission (NRC) established by the Energy Reorganization Act of 1974 is responsible for the legal regulation and licensing of all aspects of nuclear energy industry, and conducting inspections in order to ensure compliance with the nuclear industry regulation principles.

The NRC is an independent regulating conventional commission headed by five members who are appointed for a term of five years by the President of the USA following Senate approval. Each member of the Commission has equal powers to resolve issues within the NRC’s authority.

The NRC works out policies and rules for regulating nuclear reactors and the safety of the materials, and constitutes a licensing authority. Powers of the

1

Federal Law of 23 November 1995 No. 174-FZ «Concerning environmental expert evaluation».

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68 NRC are provided by Title 10 of the Code of Federal Regulations (CFR)1.

Up until 2006, the licensing procedure in the USA was regulated under similar rules as in the Russian Federation by Federal Regulations 10 CFR 50.

Just as in Russia, in order to get a nuclear power plant unit licensed in the USA, it was necessary to satisfy a three stage process, namely: obtaining a license for site preparatory works (or placement as referred to in Russia), construction and operation. Unlike Russia, where each power unit on the site had to be licensed, the license was granted for the site as a whole. The licensing process would take from four to ten years. In the late 1980s some power units licensed for construction in the USA could have been put into operation. However, after a longstanding struggle for obtaining an operation license that proved unsuccessful, investors gave up further attempts to put these power units into operation and withdrew their funds from nuclear industry financing. This resulted in the USA nuclear industry being stagnate for more than twenty years.

In Spring 2001, following the energy crisis in the USA, a nuclear energy development program was adopted, however investors were not eager to invest in nuclear industry. In order to attract investors to nuclear power plant construction projects, the USA Government, along with supervising authorities, reviewed the legislative framework related to licensing. In 2006 a new Federal Law 10 CFR 52 was enacted, enabling investors to obtain combined licenses for a term of forty years that comprised all of the licensing stages. Under the new law, the entire process of obtaining a combined license was likely to take two to three years. As soon as this law was enacted, investors gained guarantees that power units would be put into operation and generate expected profits. The scheme of obtaining a license in the USA is illustrated by Chart 4.

1

United States Nuclear Regulatory Commission. URL: www.nrc.gov.

Doronina O.N., Tarba S.V. «Comparative study of licencing activities in the field of nuclear energy use in the RF and the USA»

69

Chart 41. Obtaining a license in USA Amendments to the USA nuclear laws stimulated considerable inflow of investments to the nuclear industry and lifted some other sectors of national industry providing tens of thousands of citizens with employment for years to come.

At the beginning of 2012, the Executive Office of the current President of the USA, President Barack Obama, extended credit to Southern company for the sum of $8,3 billion for construction of Units 3 and 4 of the Vogtle Nuclear Power Plant, which will become the first new power units in the USA for the last 30 years. They are expected to be operational in 2016 and 2017 respectively.

The issue of constructing two more reactors at the V.C. Summer Nuclear Station by 2016 and 2019 is currently under consideration. It is estimated that the construction of new nuclear station units will generate about 5000 jobs at the facility during the peak construction phase, as well as 800 high-paying jobs within the stations life span. Additionally, the US government has agreed to allocate $170 million of research grants to over seventy institutes engaged in research and development in all types of technology, future reactor concepts through security technologies.2 Having compared the Russian and the American experience in nuclear power plant construction, it is important to note that improving laws in the sphere Нынешний процесс согласно закону 10 CFR Part 52 / Actual process under 10 CFR Part 52; Получение разрешительной документации на размещение / Obtaining permits and authorizations for placement; Комбинированная лицензия / Combined license; Сооружение / Construction; Пусконаладочные работы (подтверждение соответствия проектным решениям) / Commissioning (confirmation of compliance with design solutions); Эксплуатация / Operation; Сертификация проектной документации / Certification of design documents; Временные рамки: от 2 до 3 лет / Time frame: 2-3 years. Прежний процесс согласно закону 10 CFR Part 50 / Former process under 10 CFR Part 50; Получение разрешительной документации на сооружение / Obtaining permits and authorizations for construction; Получение лицензии на сооружение / Obtaining license for construction; Строительство / Construction; Получение разрешительной документации на эксплуатацию / Obtaining permits and authorizations for operation; Получение лицензии на эксплуатацию / Obtaining license for operation; Эксплуатация / Operation; Временные рамки: от 4 до 10 лет / Time frame: 4-10 years.

2 Russian nuclear society. URL: http://www.atomic-energy.ru.

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70 of nuclear energy use is a priority in order to enhance the efficiency of nuclear power plant construction in the Russian Federation, and to optimize the entire work cycle related to the pre-design stage, designing, constructing and putting nuclear power plant units into operation.

These improvements will considerably reduce construction time frames, financial and labor expenditures and provide a competitive advantage to the Rosatom State Corporation on the global nuclear energy market.

References 1 Nuclear News Agency. URL: http://atominfo.ru.

2 Law of the RSFSR of 25 December 1990 No. 445-I «On entrepreneurs and entrepreneurial activities» (repealed).

3 JSC Atomstroyexport. URL: http://www.atomstroyexport.ru.

4 Regulation of the Government of the RF of 14 July 1997 No. 865 «Concerning approval of the Statute on licensing activities in the sphere of atomic energy use» (repealed).

5 Regulation of the Government of the RF of 29 March 2013 No. 280 «On licensing activities in the sphere of atomic energy use».

6 Regulation of the Government of the RF of 30 July 2004 No. 401 «On Federal Service for Environmental, Technological and Nuclear Supervision».

7 Regulation of the Government of the RF of 20 September 2008 No. 705 «Concerning long-term program of State Atomic Energy Corporation «Rosatom» for the period of 2009 – 2015» (as amended and supplemented of 23.11.2009).

8 Decree of Goscomecologiya RF of 16 May 2000 No. 372 «On approval of Regulations for Scheduled Business and Other Activities Environment Impact Assessment in the Russian Federation».

9 Russian nuclear society. URL: http://www.atomic-energy.ru.

10 Federal Law of 01 December 2007 No. 317-FZ “On State Atomic Energy Corporation «Rosatom».

11 Federal Law of 04 May 2011 No. 99-FZ «On licensing kinds of activities».

12 Federal Law of 21 November 1995 No. 170-FZ «On nuclear energy use».

13 Federal Law of 23 November 1995 No. 174-FZ «Concerning environmental expert evaluation».

14 Federal Law of 25 September 1998 No. 158-FZ «On licensing of certain kinds of activities» (repealed).

15 United States Nuclear Regulatory Commission. URL: www.nrc.gov.

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ER LAW MOD ANDTES STA

COMPARATIVE STUDY OF LICENCING ACTIVITIES IN THE FIELD OF NUCLEAR ENERGY USE IN THE RF AND THE USA DOI: http://dx.doi.org/10.14420/en.2013.5.10

Marina Vasilyevna Markheym, Doctor of Legal Sciences, Professor, Head of Constitutional and Municipal Law Department of Juridical Institute of National Research University «BelGU», e-mail: markheim@bsu.edu.ru.

Pavel Aleksandrovich Derevyanko, Candidate of Legal Sciences, Teaching Assistant of Constitutional and Municipal Law Department of Juridical Institute of National Research University «BelGU», e-mail: p.a.derevyanko@ gmail.com.

Abstract.

Keywords:

The article considers the CIS countries’ approaches to securing of paternity at the constitutional level as well as variants of determinations of law concerning paternity in some Western states. constitution, legal equality, paternity, motherhood, childhood, legal equality of parents, CIS countries, masculinism.

Research on the constitutional regulation of paternity in various countries allows a classification to be made, revealing particular differences in certain states, and suggesting the direction for the development of the rules on paternity.

The variation in the contemporary approaches to regulating paternity relationships can be demonstrated in the most illustrative way using the example of the CIS countries.1 These countries were all related to the USSR Constitution practices, and started developing as independent states after the collapse of the USSR. By adopting its own constitution, each CIS country introduced the relevant rules according to its own principles, including the rules of international law. To a greater or lesser extent, this had an effect on the constitutional formality of the rules on paternity regarded in the context of the general principle of legal equality.

An analysis of the constitutions of eleven CIS countries has shown that paternity as a target for protection is mentioned in five of them (those of Azerbaijan, Belarus, Kazakhstan, Russia, and Ukraine). In these same states, equal gender rights and equal rights for spouses are also covered.

In the remaining six countries (Armenia, Kyrgyzstan, Moldova, Tajikistan, Agreement on Establishment of the Commonwealth of Independent States (Minsk, 8 December 1991) // Informatsionnyy vestnik Soveta glav gosudarstv i Soveta glav pravitelstv SNG «Sodruzhestvo» [Information Bulletin of the Council of Heads of States and the Council of Heads of Governments of CIS «Commonwealth»]. – 1992. – No. 1. – P. 6.

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72 Turkmenistan and Uzbekistan) the word «paternity» does not appear in the constitution. Five of the constitutions confine themselves to the area of equal rights either for spouses (Armenia, Moldova) or for men and women (Tajikistan, Uzbekistan). Both these are covered in Turkmenistan’s constitution. In Kyrgyzstan these aspects are not mentioned at all.

We consider it interesting to take a more specific look at the approaches of the states in which paternity is entrenched in the constitution.

Clauses III and IV of article 34 of the Constitution of the Republic of Azerbaijan1 provide that «maternity, paternity and childhood are protected by the law…» [emphasis added] and that the «rights of wife and husband are equal.

Care and education of children constitute both a right and a responsibility of the parents».

According to article 32 clause 1 of the Constitution of the Republic of Belarus,2 «marriage, the family, motherhood, fatherhood and childhood shall be under the protection of the state» [emphasis added], and «a husband and a wife shall be equal in family relations». Article 32 clause 2 states the existence of rights for parents, but there is no direct reference to these rights being equal.

However, we believe that the said rule, insofar as it pertains to the equal rights of spouses, can be interpreted to extend to equal rights of parents, especially since these provisions in this statute are contained in the same article. At the same time, we consider the wording about spousal equality to be technically loose, as parents are not necessarily spouses, even though their rights with respect to their child should still be equal. The same can be observed concerning the wording «equality in family relations». Family relations are not always present between the parents of a child. However, this circumstance does not affect the equality of the parents’ rights with respect to their children.

It is important to emphasize that the Constitution of Belarus is the only one to entrench the rule that «the House of Representatives shall consider draft laws, including the ones… regarding marriage, the family, childhood, maternity, paternity…» [emphasis added] (art. 97).

It is provided in article 27 clause 1 of the Constitution of the Republic of Kazakhstan3 that marriage and family, motherhood, fatherhood and childhood shall be under the protection of the state, while it is established in article 27 clause 2 that care of children and their upbringing shall be a natural right and responsibility of parents.

In accordance with article 7 clause 2 of the Constitution of Russia4, «… state support shall be provided to family, maternity, fatherhood and childhood…» [emphasis added]. The incorporation of this provision into the chapter «The Constitution of the Republic of Azerbaijan of 12 November 1995 (as amended) // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»].

URL: http://base.spinform.ru/show_doc.fwx?rgn=2618.

2 Constitution of the Republic of Belarus of 24 November 1996 (as amended) // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»].

URL: http://www.base.spinform.ru/show_doc.fwx?rgn=19903.

3 Constitution of the Republic of Kazakhstan of 30 August 1995 (as amended) // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»].

URL: http://base.spinform.ru/show_doc.fwx?rgn=1162.

4 Constitution of the Russian Federation of 12 December 1993 // Rossiyskaya Gazeta. – 2009. – 21 January.

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Fundamentals of the Constitutional System» constitutes a supplementary guarantee for fatherhood in Russia.

It is contemplated under article 51 paragraph 3 of the Constitution of Ukraine1 that family, childhood, motherhood and fatherhood are under the protection of the state, while paragraphs 1 and 2 state the equal rights and obligations of spouses in the marriage and family as well as parents’ obligation to sustain their children.

We suggest that the said provisions should be interpreted by analogy with what is suggested above with respect to Belarus.

To summarize, it should be noted that in all the constitutions studied, paternity or fatherhood is cited in logical connection with maternity or motherhood and childhood. Marriage and family, as also mentioned in this context, constitute ideal, but not necessary, conditions, as a man can still be a father without having any family or marital relations with the mother of his child.

In four out of the five CIS constitutions in which paternity is mentioned, paternity is guaranteed by the state, and in one of these (Azerbaijan) it is guaranteed by the law. The first variant is considered to be more desirable because of its wider extent, the law being merely one of the instruments available to the state.

Various aspects of paternity are emerging and changing over time, due to the growing number of divorces, which aggravates the problem for parents exercising rights with respect to their children.

In many Western states, a «masculinism» trend has emerged, which we define as a man-friendly concept intended for the study of social problems, or a belief that social gender equality calls for the elimination of prejudice and discrimination against men as well as against women, a gender stance that is complementary to, not opposite to, feminism.2 Within the frames of masculinism, the focus is upon paternal rights with respect to children, especially after a divorce. The representatives of this movement insist that, following a divorce, children are still in need of both natural parents and, therefore, that divorced fathers should not only have rights but should also have the opportunity to exercise their rights in practical terms.3 Foreign laws regulating fathers’ rights upon divorce are based upon the general principle of the shared custody of children by both the mother and the father.

In 1975 in Finland, the Paternity Act was adopted. Under this law, shared custody survives a divorce, until a decision or statement to the contrary. The law relies upon the principle of the child retaining a relationship with both parents, whether or not they are married or living together. It is necessary to have especially good reasons to deprive a parent of his or her parental rights. Even cases of child abuse or a parent failing to perform his or her guardian’s obligations may still not Constitution of Ukraine of 28 June 1996 (as amended) // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»]. URL: http://base. spinform.ru/show_doc.fwx?rgn=8689.

2 Muzhskoy almanakh [Men Almanac]. URL: http://www.menalmanah.narod.ru.

3 Nikolayeva Ya. G. Ottsovstvo posle razvoda: obzor issledovaniy zarubezhnykh uchenykh [Paternity upon divorce: review of foreign scientific research] // Aktualnyye problem semey v Rossii [Pressing challenges of families in Russia] / under the editorship of T.A. Gurko. – Moscow: Institut sotsiologii RAN [Institute for sociology of the Russian Academy of Sciences], 2006.

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74 be sufficient grounds.

The principal laws of Sweden governing parental rights and obligations, particularly after divorce, include the Family Law (1949). Under this law, if the parents are married, the child from birth is in the custody of both his or her parents; if they are not married, his or her mother has sole custody. The child remains in the shared custody upon divorce, unless the shared custody is annulled by the court at the request of one of the parents, on the initiative of the court or upon request by the social security commission. The court may entrust custody of the child to one of the parents if this is in the child’s interests. When considering the best option, the court must put special emphasis on the child’s needs, and take into account the need to retain a close and warm relationship with both parents.

If the other parent is also unable to bring up the child, the court shall assign the custody to one or two guardians specially appointed by the court.1 It is important to make it clear that Swedish family laws suggest a high level of involvement for both parents in the process of bringing up their children after a divorce. Shared custody is of such great importance that recent amendments to the laws, made in 1998, enable the court to award shared custody against the will of one of the parents. Thus, a man not residing with his family because, for instance, he has abused his ex-wife or partner, may have contact with the children in order to create a positive image of a father and to obtain social recognition.2 In the UK, the Children Act of 1989 contains a description of the forms of care for children and the obligation of the parents or other persons to bring up the child. The responsibility to take care of the child, to bring him or her up morally, physically and psychologically, is given to the mother and the father equally. After a termination of relations (separation) or divorce, the parents continue to bear their obligations.3 In the USA, two forms for the shared custody of children are practised upon divorce, one legal and one actual. The first means that the children reside predominantly with one of their parents, but that the mother and the father take joint decisions concerning their education and upbringing. The second presumes that the children, whenever possible, live with each of their parents in turn (for example, with their mother during term-time and with their father during vacations).

In the case of «separate custody», the children are divided between the parents: mothers usually take the girls, while fathers tend to take the boys. However, according to research, separate custody often has an adverse effect on brothers and sisters and should be used only as a last resort.4 In the Russian Federation, according to article 61, clause 1 of the Family Code, fathers and mothers exercise equal rights and bear equal responsibilities with respect to their children (parental rights). All matters related to the upbringing and education of the children are to be decided by the parents by mutual Biblioteka Permskogo pravozashchitnogo tsentra [Library of the Human Rights Center of Perm].

URL: http://www.prpc.ru/library.

2 Eriksson M. Custody, residence and contact // Children who see daddy hit / B. Metell (Ed.). – Stockholm: Forslagshuset Gothia, 2001.

3 Biblioteka Permskogo pravozashchitnogo tsentra [Library of the Human Rights Center of Perm].

URL: http://www.prpc.ru/library.

4 Gurko T. A. Roditelstvo: sotsiologocheskiye aspekty. [Parenthood: sociological aspects] – Moscow: Tsentr obshchechelovecheskikh tsennostey [Universal Human Values Center], 2003. – P. 58.

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75 agreement, having regard to the children’s best interests and to the children’s opinions. If there is a dispute, the parents (or one of them) have the right to seek a resolution in court or from the custody and guardianship authorities (article 65, clause 2).

If the parents separate, the children’s residence is defined by agreement between the parents. Where no agreement is in place, the argument between the mother and the father is resolved by the court for the benefit of and with respect to the opinion of the children. In this case, the court considers the affection of the child for each parent, his or her brothers and sisters, his or her age, the moral and other qualities of the parents, the relationship between each parent and the child, and the opportunity to create conditions for the upbringing and development of the child (article 65, clause 3).

However, the practice following divorce in Russia indicates a lack of compliance with these family law provisions, with respect to both mothers and fathers. We accept the position of T .A. Gurko that, in Russia, the problems of the relationship between fathers and children after divorce, as well as the legal regulation of such relationships, «are still pending and give space for further research».1 The need to match the domestic law with the practice of fathers implementing their rights towards their children accentuates the call for the development of the doctrine of this complex problem.

References 1 Biblioteka Permskogo pravozashchitnogo tsentra [Library of the Human Rights Center of Perm]. URL: http://www.prpc.ru/library.

2 Gurko T.A. Roditelstvo: sotsiologocheskiye aspekty. [Parenthood: sociologic aspects] – Moscow: Tsentr obshchechelovecheskikh tsennostey [Universal Human Values Center], 2003.

3 Constitution of the Republic of Azerbaijan of 12 November 1995 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://base.spinform.ru/show_doc. fwx?rgn=2618.

4 Constitution of the Republic of Belarus of 24 November 1996 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://www.base.spinform.ru/show_ doc.fwx?rgn=19903.

5 Constitution of the Republic of Kazakhstan of 30 August 1995 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://base.spinform.ru/show_doc. fwx?rgn=1162.

6 Constitution of the Russian Federation of 12 December 1993 // Rossiyskaya Gazeta. – 2009. – 21 January.

7 Constitution of Ukraine of 28 June 1996 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://base.spinform.ru/show_doc.fwx?rgn=8689.

8 Muzhskoy almanakh [Men Almanac]. URL: http://www.menalmanah. narod.ru.

1

Gurko T.A. Op. cit. – P. 59.

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76 9 Nikolayeva Ya.G. Ottsovstvo posle razvoda: obzor issledovaniy zarubezhnykh uchenykh [Paternity upon divorce: review of foreign scientific research] // Aktualnyye problem semey v Rossii [Pressing challenges of families in Russia] / under the editorship of T.A. Gurko. – Moscow: Institut sotsiologii RAN [Institute for sociology of the Russian Academy of Sciences], 2006.

10 Agreement on Establishment of the Commonwealth of Independent States (Minsk, 8 December 1991) // Informatsionnyy vestnik Soveta glav gosudarstv i Soveta glav pravitelstv SNG «Sodruzhestvo» [Information Bulletin of the Council of Heads of States and the Council of Head of Governments of CIS «Commonwealth»]. – 1992. – No. 1.

11 Eriksson M. Custody, residence and contact // Children who see daddy hit / B. Metell (Ed.). – Stockholm: Forslagshuset Gothia, 2001.

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LAW AND MODERN STATES Comparative Studies Journal 2013, № 5 Editorial Staff: Editor-in-chief – Boshno Svetlana, Doctor of Legal Sciences, Professor Deputy editor-in-chief – Vasyuta Galina, Ph.D. (Psychology), Associate Professor Deputy editor-in-chief – Dogadailo Ekaterina, LLD, Ph.D. (Jurisprudence), Associate Professor Layout, makeup – Grinenko Elena Infotainment – Khidzev Alimbek, Tatishvili Тengiz Translators: Gudimova Lidiya – Director on Business International Development PIBD USA (Washington, D.C.) Zolotarevskaya Polina – Head of Translation Division Ural Chamber of Commerce & Industry (Chelyabinsk) Kayumov Stanislav – Ph.D. (History), Leading Expert of Translation Division Ural Chamber of Commerce & Industry (Chelyabinsk) Kulagina Maria – Paralegal assistant at Semenko Lawyer’s Office, Legal adviser at Holdsway Ltd (Moscow) Proofreading of English translation: Proof-Reading-Service.com. Ltd, Devonshire Business Center, Works Road, Letchworth Garden City, Hertfordshier, SG6 1GJ, United Kingdom

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