Legal technology in the Soviet period is its peculiarity. Development of legal technology in pre-revolutionary Russia. Concept and types of legal acts

The beginning of the development of UT can be considered the treaties between Rus' and Byzantium (911, 944). These agreements are characterized by some elements of UT, in particular: 1) a certain language for drawing up these agreements - including the rules of the Greek language. After the word “law” there were Greek adjectives. or Russian, which is typical for the Latin language. 2) the presence of basic legal terms (for example, “liability for theft”).

Elements of UT in Russian Pravda: 1) Normative construction of sentences in the text, from which one can see a hypothesis, disposition, sanction. 2) Entering the title of the articles (however, they are not clear enough). 3) Terminological dictionaries appear (debt, purchase, sale, plaintiff).

Features of Sudebnikov 1497, 1550: 1) Division into articles with headings (however, there was a repetition of headings and their content in a number of articles). 2) the text was divided into chapters, which were numbered. 3) In the Code of Laws of 1550, the division of legal norms occurred according to thematic focus.

In the Council Code of 1649: 1) division into 25 chapters, numbered in Roman numerals. 2) The chapters had their own headings and the number of articles in them (however, the numbering was not continuous, but separately for each chapter). 3) the number of articles in chapters varies, from one to 287 articles. 4) There is a Preamble in the Code, but it is voluminous (up to one chapter) and difficult to understand. 5) In a rule of law, the elements (hypothesis, disposition, sanction) are more clearly visible, and the hypothesis is separated from the disposition or sanction by “:” or the pronoun “that”. 6) The language of presentation of the material has become more understandable. 7) Legal terminology is being improved, new terms appear, cat. used in modern jurisprudence (bailiff, duty).

Under Peter 1, an attempt was made to systematize the disparate norms that existed along with the Code of Laws of 1649. Also, a similar attempt was made by Catherine 2, which led to: 1) gaps in the laws; 2) the emergence of difficulties in using laws issued at different times and their abundance; 3) incorrect interpretation of laws; 4) the discrepancy between the old laws and the new reality.

A new codification of Russian legislation was carried out only under Nicholas 1; a special commission was created under the leadership of Speransky in 1826, as a result of which. There was a publication of the complete Collection of Laws of the Russian Empire in 1830. It included all the laws issued with the Code of 1649 in chronological order (30,920 acts, including 45 volumes). Subsequently, two more systematizations were carried out and as a result, in 1833, 15 volumes of the Code of Laws of the Russian Empire were prepared. They were officially recognized as the only ones. The new elements of the UT here were: 1) Continuous numbering of articles in each volume, which was inconvenient and in the subsequent Code of 1842, continuous numbering was carried out for each act separately, as it is today. 2) Alphabetical, chronological and comparative instructions to the Code appear.

New trick UT was used in the Code of 1845, in cat. The General Part appears, i.e. general legislative provisions are highlighted. After the creation of a new representative body, the State Duma, interest in UT is increasing. During this period (after 1905), the scientific substantiation of the need for UT began, the scientific works of Nevolin “Encyclopedia of Law”, Rozhdestvensky “Encyclopedia of Law”, Speransky “Guide to the Knowledge of Laws” appeared.

4 . Legal technology in the Soviet period, its peculiarities.

During this period, they talked more about ST, although this concept covered not only the requirements for legal acts, but also for legal acts.

Features of UT of the Soviet period:

1) reproduction of normative regulations (at the republican level they accepted the provisions of all-Union legislation, developing and clarifying them).

2) the main Codes and current laws were characterized by complex articles, in which. normative provisions of a general nature and non-normative ones were combined.

3) in order to save volume and uniformity of presentation of normative material, the articles contained not one normative instruction, but several (up to 5-8 normative provisions).

4) Characteristic is the special technique of the UT-construction, i.e. samples or standard schemes in which normative regulations (for example, the corpus delicti) are presented.

5) highlighting the general part in the codified NA, and when compiling articles of the General Part, they used the “referral” technique. All normative regulations of the General Part applied to all articles of the Special Part, representing a single whole and acted in unity.

Works by: Kerimov, Tolstoy, Pigolkin, Kovachev and others.

LEGAL TECHNOLOGY AS AN INDEPENDENT DISCIPLINE. SUBJECT, OBJECT, TASKS AND GOALS OF LEGAL TECHNIQUE.

acts (PA).

Until today, UT has not been taught as a

academic disciplines are independent, but were only an integral part

general theory of state and law. In modern times arose

the need to systematize scientific knowledge about

preparation and adoption of laws and their application in practice.

UT is a set of principles, rules, means, techniques and

methods of adequate expression of a certain

regulatory content in the form of legal text

The subject of STC is the means, rules, techniques required for

here is a list of rules on what to do

project developers to prepare high-quality

project and ensure its successful completion in

law-making body.

All methods m/b are separated

1) methods for preparing the concept of legal acts

2) methods of designing legal norms and their mechanisms

implementation in specific relationships

3)techniques for preparing the text of legal acts

4) advantages of making forecasts of action effectiveness

projected norms of law

UT object - the text of the regulatory document, in relation to

the intellectual efforts of the legislator are applied.

The goal of UT is optimal regulation of social relations,

ensuring accessibility, simplicity, visibility of legal

material, achieving perfection and effectiveness of legal

1) ensuring unambiguous and adequate grammatical

interpretation of the newly created legal act as a whole.

2) ensuring clarity and accessibility of the language of the act

3) achieving its logical consistency as in

internal structure, and in connection with other acts

4) preventing whitespace and collisions

5) accuracy and certainty of the legal form used:

formulations, expressions, individual terms

2. The relationship between the concepts of “legal technique” and “legislative technique”. Types of legal technology: pluralism of opinions.

Legal technology is a set of requirements (means, rules,

techniques) required for the form and content of legal

acts (PA).

Legislative technology is the most important component (along with

law enforcement technology) legal technology. This is the totality

means, rules and techniques for development, design,

In legal science, the opinion is already firmly rooted that UT is not

chaotic set of rules. It is divided into types. Exist

There are different opinions on how many and what types of legal technology to highlight.

Moreover, no one denies the mandatory nature of the legislative

disagreements. Mainly disputes are about

classification criterion.

such a criterion as types of legal acts. In their opinion, UT

is divided into 2 types: legislative (law-making) and

technique of individual acts. This classification is too

general to accept it.

Another method of classification by type of legal work. N,

distinguish rule-making, law enforcement,

legal explanatory, systematization and doctrinal

legal technology.

The main criterion for classification can be the stages

(stages) legal regulation(lawmaking, action

rights, implementation of rights). However, sometimes the main stages

legal regulation is “overgrown” with auxiliary and

additional stages when it is necessary to carry out

other legal actions

Thus, there are 6 types of UT:

1) law-making technique

3) technology for systematizing NA

4) interpretive technique

5) law enforcement technology

6) law enforcement technology

Development of legal technology in pre-revolutionary Russia

The new technique of UT was used in the Code of 1845, in the cat. The General Part appears, i.e. general legislative provisions are highlighted. After the creation of a new representative body, the State Duma, interest in UT is increasing. During this period (after 1905), the scientific substantiation of the need for UT began, the scientific works of Nevolin “Encyclopedia of Law”, Rozhdestvensky “Encyclopedia of Law”, Speransky “Guide to the Knowledge of Laws” appeared.

4. Legal technology in the Soviet period, its peculiarities.

During this period, they talked more about ST, although this concept covered not only the requirements for legal acts, but also for legal acts.

Features of UT of the Soviet period:

1) reproduction of normative regulations (at the republican level they accepted the provisions of all-Union legislation, developing and clarifying them).

2) the main Codes and current laws were characterized by complex articles, in which. normative provisions of a general nature and non-normative ones were combined.

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Introduction

2. Elementyou are a legislative technician

Conclusion

Introduction

The rapid and large-scale development of the legal sphere of society leads to a sharp increase in the volume of the regulatory and legal array. Citizens and their associations, government bodies and business entities come into contact with the law on a daily basis. However, the quality of laws remains low, and to a large extent - due to a clear underestimation of the role of legislative technology. As a result, many legal conflicts arise in the process of lawmaking and law enforcement that could have been prevented. But the vast majority of civil servants, deputies, specialists and experts still do not know legislative techniques, and they are not taught this. However, the technology for developing laws itself requires serious updating today.

The purpose of this work is to explore the institution of legislative technology. To achieve this goal, we set ourselves the following tasks:

Give the concept of legislative technology, consider this concept in genesis;

Identify and analyze the main elements of legislative technology;

Consider the features of legislative technology in the Russian Federation.

At the end of the work, summarize the results of the research done.

1. The concept of legislative technology

In the literature on legal theory, legislative technique is traditionally considered in the context of lawmaking as one of its elements. Some legal scholars interpret it as a system of rules and techniques for preparing draft normative acts that are the most advanced in form and structure, ensuring full and exact compliance of the form of normative regulations with their content, accessibility, simplicity and visibility of normative material, and comprehensive coverage of regulated issues. Others - as a set of rules, means and techniques for the development, execution and systematization of normative acts in the context of sources of law and lawmaking. Its object is the text of a normative document, in relation to which the legislator expends intellectual effort. Sometimes the means of presenting the content of legal regulations, methods of formulating norms or provisions of legal acts, and means and methods of constructing legal acts differ. In general, legislative technology is recognized as an important factor in the optimization and effectiveness of legislation.

In Russia, issues of improving legislation began to be addressed in the second half of the 19th century. The increased attention of scientists and practitioners to the form of laws of that time is evidenced by the discussion that unfolded in the legal literature regarding the draft Code of Criminal Punishments of 1885. Thus, in one of the reviews of the draft it was written that: “A close acquaintance with the draft convinces that The simplification of legislation proposed by the project, by reducing to a minimum the number of definitions of theft of property, is achieved through the completeness, clarity and certainty of the law. For future judicial practice, the draft opens up the prospect of a number of difficulties, since the text of the law is too short to answer all the requests of law and life actions.”

The greatest interest of Russian lawyers in problems of legislative technology manifested itself in the period from 1900 to 1917, i.e. during the period when the bourgeois revolution was brewing in Russia. At this time, such Russian scientists as N.S. Tagantsev, F.P. were engaged in research into legislative technology. Butkevich, M.A. Unkovsky, P.I. Lublinsky

Simultaneously with the works of Russians, the works of European scientists such as I. Bentham and R. Iering were also published. P.I. Lyublinsky in his famous manual “Technique, Interpretation and Casuistry of the Criminal Code” wrote that, being a changeable creation of human hands, legal law finds its power in itself and only in this form is it an active will that creates order. Therefore, the word of the legislator is a task that can be perfectly accomplished only by a God-gifted person, who can create an intuitively sacred legal order, consisting in living correspondence with the soul of the people and real forces. He further noted that legal interpretation teaches us the art of developing the legislator’s thought and extracting the necessary content from it. But it is conceivable only if one is familiar with the technical techniques that the legislator used when constructing his norms. That is why P.I. Lublinsky believed that legal hermeneutics should be preceded by the study of legislative technology

Another well-known Russian legal scholar M.A. held a different point of view on the problems of legislative technology. Unkovsky. In one of his scientific works, he wrote that, undoubtedly, experience in legislative technology, gained through sitting for many years in the process of drafting bills, is far higher than the knowledge in this area possessed by persons who have recently entered the field of legislative activity, which in most cases are elected members of legislative chambers, but that such experience cannot be called sufficient is shown by the fact that those legislative acts that in different states came from the pen of legislators before the introduction of the electoral system into legislative institutions, also invariably upon their publication caused a great deal of confusion, requiring all sorts of additions and clarifications, both authentic, administrative and judicial.

How then can we compare such, so to speak, primitive type of experience with the knowledge that would arise from systematic acquaintance with the whole mass of legal issues arising from life, taken from different areas of law? different countries and different eras, and if this acquaintance does not occur incidentally with the development of various private bills, but pursues the special task of clarifying the general nature of the legislative and technical shortcomings of legislation, which are usually the causes of one or another kind of perplexity, and inventing the most advantageous methods of presentation for entire systems of laws them so that the entire complex of legislative norms of each given country is expressed in the most concise and clear form? Experience of the first kind is nothing more than some “trainedness” in the matter of legislative technology and, moreover, as already explained, very insufficient, judging by its results, while the knowledge that would be obtained through the above-mentioned systematic and special work would contain everything those guiding conclusions useful for presenting legislation in a clear and concise form that are generally possible to draw

When developing a modern definition of legislative technology, one must constantly remember that its main purpose is to solve problems of the relationship between the content and form of law. Its purpose is to give laws a form that would fully correspond to their content and meet the requirements of accessibility, simplicity and clarity.

Attention should be paid to the specifics of legal and technological techniques in different branches of legislation. Their distinction is due to the different objects and methods of legal regulation. For example, in constitutional legislation more norms - definitions, norms - goals and norms - principles are used, and the norms themselves often consist only of dispositions. In civil and criminal legislation, strict and detailed structuring of institutions and norms is traditional.

In our opinion, legislative technique is a system of rules designed and used for the cognitive-logical and normative-structural formation of legal material and the preparation of the text of the law. In this definition, six interrelated elements can be distinguished: cognitive - legal, normative - structural, logical, linguistic, documentary - technical, procedural.

Each of the elements contains a set of requirements - rules that must be strictly followed. Their application, taking into account the stages of movement of the bill, must be consistent and interconnected.

The cognitive element means determining the subject of legislative regulation, selecting and analyzing processes, phenomena and relationships that may be the object of legislative influence. It is justified to proceed from the following range of legally regulated relations:

a) their high social significance for society, the state and the citizen; b) stability; c) primary - regulatory regulation; d) predetermination of constitutions; e) competence of the subject of legislative activity.

Associated with these components is the correct choice of the form of a legal act, taking into account its place in the legal system and classification characteristics both official and doctrinal.

The cognitive aspect of preparing the law is related to its concept. This is an analytical normative model with options for legal behavior, with the approximate structure of an act, its connections with other acts, possible consequences and evaluation of the effectiveness of the action. Replacing concepts with all kinds of explanatory notes, etc. outwardly simplifies the process of lawmaking, but in reality only depreciates it.

What is important within the concept of law is the “set of concepts” that are intended to be used. These are, first of all, scientific and legal concepts developed by legal science and necessary for the correct construction of the law. Their underestimation and ignorance lead to mistakes and legal contradictions. Further, constitutional concepts should be applied correctly, without allowing arbitrary deviations from them.

Quite often, concepts and terms are recognized in some law. Is this necessary? Traditionally, within the framework of the continental law system, to which, we note, Russian law primarily belongs, not every law is accompanied by a set of its own concepts. They are already embedded in constitutions, codified acts and scientific doctrines. In our country, on the contrary, there is now a fascination with definitions as the “calling card” of the law.

The Water Code contains 30 basic concepts - such as “water”, “waters”, “groundwater”, etc. (Article 1). It is unlikely that they have a specific meaning that requires normative expression. The Air Code contains no norms or definitions at all, except for the concept of “specially authorized body” (Article 6). This circumstance led to their appearance in specific laws adopted within this area.

It is more correct, firstly, to introduce normative concepts only in basic laws (codes), secondly, to achieve a strict internal connection between norms - definitions and chapters, articles of the law, thirdly, to ensure the consistent and correct application of basic norms - definitions in other laws and other acts.

2. Elements of legislative technology

An analysis of the institution of legislative technology is impossible without considering its elements.

Legal terminology is a traditional element of legislative technology. Almost all scientists who have studied this issue agree with this. However, as A.S. correctly noted. Pigolkin, not every word used in a normative act is a term. A term can be defined as a word or an expression consisting of several words that denotes a strictly defined concept, limited by precise limits, firm boundaries. The legal term is a narrower concept in content.

A large legal dictionary gives the following definition of legal terms - these are verbal designations of state legal concepts, with the help of which the content of the legal regulations of the state is expressed and consolidated.

The following interpretation is more accurate: a legal term is a word or phrase that expresses a particular legal concept with extreme precision and has stability as well as unambiguity (at least tending to it).

Traditionally, in the scientific literature there are three types of legal terms:

Commonly used (characterized by the fact that they are used in an ordinary sense and are understandable to everyone, for example, law, person);

Special technical (reflect the area of special knowledge - medicine, economics, Agriculture etc., for example safety regulations);

Special legal (have special legal content).

S.S. Alekseev believes that only special legal terms belong to legislative (legal) technology.

Legal terms can be classified on the following basis:

1) by source of origin: Russian-speaking and foreign;

2) by degree of specificity: requiring interpretation and unambiguous;

3) according to the degree of complexity: single-component and multi-component.

The use of legal terms in legislative acts must meet certain requirements.

Clarity, i.e. legal norms must be understandable to everyone to whom they are addressed. The content of a legal term must be clear to the law enforcer; the term should not cause unjustified efforts both to understand and to explain its content. Each term used in law should ideally have its own, and only its own, original and, moreover, unique meaning. As a rule, an unclear term appears in legislation as a result of a mechanical transfer of this term in its general linguistic meaning into a normative act (the so-called model of the lexical-semantic formation of the term) and the legislator ignoring the difference between the general linguistic and special legal meanings of this term. As a result, logical violations usually arise in the text of the normative act.

Obviously, in order to ensure the clarity of the term, the developers of the text of a legislative act must follow the rule according to which any term used in the text of the act is presumed to have its general linguistic meaning, unless the developers themselves define otherwise and another definition of a specific term is not given.

Unambiguity, i.e. one and the same term should be used in one or another normative legal act only in one meaning. The text of the law should use simple words, terms and phrases that are widely used in everyday life and easily understood by people.

Sustainability, i.e. the term must retain its special meaning in each new regulatory legal act.

Unity of terminology, i.e. the terms used must be identical and not contradict the terms contained in other regulatory legal acts.

An element of legislative technique is the normative structuring of the text of the law. This means a clear sequence of operations. These should include actions to develop the composition of the act, establish it components, the formulation of names (headings) of legal regulations (norms), the use of references and other norms of “legal connections”, the determination of the methods and procedure for the entry into force of an act, the repeal and amendment of other legal acts. Let us explain this in more detail.

Taking into account many years of practice and scientific developments, the following rules can be recommended for developing the structure of the law: highlight the title, preamble, normative provisions, final and transitional provisions in the law as its constituent parts. These may be chapters and articles; sections, chapters and articles; parts, sections, chapters and articles. Such division is predetermined by the volume of normative material, but on the condition that the primary cell is a legal norm. Its design should be the criterion. It is better to divide articles into paragraphs with numbering.

A set of legal rules of behavior should be reflected as formulas for lawful and unlawful behavior. The issue of classification of legal norms has been developed in the legal literature. However, mistakes are still made.

An example of unsuccessful formulation of a norm is Art. 6 “Unified gas supply system” Federal Law“On gas supply in the Russian Federation.” It describes in detail what the Unified Gas Supply System is, whose ownership it is, and how it is regulated by the state. The “bloated” norm - definition has absorbed a number of specific norms - prescriptions.

The issue of references is very important in legislation. With their help, systemic connections between norms and acts are ensured. In practice, unfortunately, many mistakes are made in determining the types of references. Let us make the following explanations about this.

References to the norms of the law are acceptable when it is necessary to ensure a connection between its general and specific, special provisions. References to legal acts of higher legal force are justified when it is necessary to identify the legal source of a given law. References are possible to international acts ratified and approved by Russia and imposing obligations on it, requiring the adoption of domestic acts for their implementation. References to acts of lower legal force are justified when it is necessary to lengthen the “legal connection” and determine the grounds for issuing a new law or give instructions to adopt a by-law.

In terms of their scope, references can be made to a specific law as a whole or part of it, to a law in a broad sense, to legislation. They relate to both existing and proposed legal acts. Moreover, in all cases it is necessary to observe the measure, avoiding mistakes in choosing their types, as well as redundancy, ignoring or underestimation.

Legislative technique also includes such an element as the language of the law. We are talking about the broader phenomenon of the language of law as a special logical-lexical structure of speech. This problem has been developed in the legal literature. This is an understanding of legal language as a specific one, the words in which form sentences that make up comprehensive legal formulas. Brevity, concentration, unambiguity, ease of understanding are the most important requirements for this kind of language. On the other hand, one should strictly observe “language prohibitions” - avoid metaphors and figurative expressions, archaisms and dialectisms, foreign words and terms, simplifications and conventional phrases. Prescriptions are best expressed through the obligatory - prescriptive and ascertaining - prescriptive methods.

Legislative technology is also characterized by such an element as legal logic. In general, logic in law is absolutely necessary knowledge for both scientists and practitioners. The need to use formal logic in the law-making process is correctly noted, when the correct application of the law of identities allows one to avoid polysemy (polysemy) and other violations. No less important is the logical law of non-contradiction, the law of excluded middle, the law of sufficient reason.

An element of legislative technique is also a set of means for documenting a bill. These include: a clear title (name), general numbering, designation of parts of articles with an Arabic number or letter, designation of the date of adoption of the law by the State Duma and approval by the Federation Council, signing of the law by the President of the Russian Federation, authentication of the text, registration number, etc. All this is important in conditions for the use of information technologies in the legislative process.

An element of legislative technique is compliance with the procedural rules for preparing a bill. In this regard, let us briefly note the main points and sequence of compliance with the preparatory procedures:

a) preparation of the initial text;

b) discussion and agreement of the text;

c) obtaining opinions;

d) preparation of the required documents - an explanatory note, financial and economic justification, conclusion of the Government of the Russian Federation (Part 3 of Article 104 of the Constitution of the Russian Federation), a list of amended and repealed acts of federal legislation, etc. (Article 105 of the Rules of the State Duma);

e) introducing a bill in the prescribed manner;

f) taking into account other requirements of regulations.

The formation and sustainable application of rules of legislative technique are influenced by the methods of making them binding. For now, subjects of legislative initiative use “their own” rules. The Federation Council uses the “Dictionary of Legal Concepts”, the State Duma maintains an electronic database “Law”, and an electronic archive of documents has been created. There are reference books on drawing up acts of federal bodies state power. Let us recall that in the past the USSR Ministry of Justice adopted methodological recommendations on the procedure for preparing legislative and government acts. Now some ministries have their own rules of this kind.

Violations of the requirements and rules of legislative technology often serve as the basis for the veto of the President of the Russian Federation on adopted federal laws. As experts note, contradictory terms, failure to make changes to existing acts, grammatical and logical errors, and contradictions between the norms of different laws give rise to such presidential actions. A correct parliamentary response to them, of course, helps improve the quality of laws.

In the laws of the constituent entities of the Russian Federation, there is sometimes excessive diversity not only in terms of their content, but also in the composition of the texts themselves. An abundance of norms - definitions, duplicating and confusing terms, arbitrary structuring of the text, dubious designations of parts of the law, unsuccessful formulation of legal norms, ignoring systemic connections, erroneous references, references - these are the most typical technical and legal shortcomings.

For example, the Law of the Kaluga Region of June 27, 1996 “On the status of a social service worker in the Kaluga Region” contains a preamble, which is a kind of summary of the law. In Art. 1 contains a definition of social service, although there is Art. 2 about basic concepts and definitions. Some articles are divided into paragraphs with numbers, while others are divided into paragraphs. The law consists of four sections and 18 articles, and the title of section II “Principles and Fundamentals” is very ambiguous. Law Chelyabinsk region“On the radiation safety of the population of the Chelyabinsk region” is overloaded with concepts and definitions - there are 30 of them. All articles with headings are numbered, the internal division is numerical and alphabetic. Articles of laws of the Yamalo-Nenets Autonomous Okrug often do not have headings.

Applications to them began to appear in regional laws. This is legislative practice Voronezh region and St. Petersburg. For example, in the Law of St. Petersburg of May 5, 1999 “On the Zone economic development"Kronstadt" five articles. The first is about the creation of a zone, the second is about its territory, the third is about the approval of the Regulations on the zone, which is given in the annex to the Law, the fourth is about amendments to the Law on Tax Benefits.

3. Disadvantages of legislative technology of the Russian Federation

During the times of the USSR, many legal acts, not inferior in importance to laws, were adopted at the level of the Government, and in some cases - in the form of joint resolutions of party and Soviet bodies. In the late 1980s, this order began to be overcome, so that the legislative process became much more widespread. In the Russian Federation, this trend continues, but the very quality of laws leaves much to be desired. The following are some typical shortcomings inherent in the current legislative technique.

Anonymity of legislative acts. Adopted laws lack information regarding their authors, developers, and initiators, who may be individuals, groups, or organizations. In some cases, this makes it difficult not only to name them, but (which is much more important) to understand, interpret, and use them. In addition, anonymity reduces the responsibility of these persons for the proper development of laws and facilitates the submission of draft laws in a raw form to legislative institutions for consideration. Unfortunately, they often arrive in an unfinished form for final approval.

Language of laws. The names of some laws are unjustifiably drawn out, so referring to their titles is useless. Thus, the title of the famous Law No. 122 (“On the monetization of benefits”) takes up half a page. This alone makes its name indescribable. Moreover, it is presented in such a language that it is impossible to understand either from the first or from the third reading.

Legislators often forget that laws are written not for the executors alone, but, above all, for the people. Therefore, the language of the law must be understandable to ordinary people, and not just to specialists.

Unintelligibility of the law. Chapter IV of the Land Code on land allocation for capital construction applies the concept of “preliminary approval” in relation to a land plot intended for development. No explanation is given for this concept; It remains unclear whether there is a “final approval” and, if so, in what order it is carried out, whether approval refers only to the selection of a land plot or also to the (preliminary) approval of the construction project. Art. 31 on the selection of a building site begins with the procedure for its selection. At the same time, no distinction is made for situations when the land is free (for example, it is listed in the state reserve) and when someone owns it. It remains unclear whether the pre-approval procedure applies to cases where the developer already owns the land. In Art. 31(8) contains a warning to the “owner” not to develop a plot of land in respect of which preliminary approval has been taken. Presumably, this means the owner of the land, a stranger to the developer. But since this is not directly stated, the text of the law turns out to be unclear. Preliminary approval is assigned to the “executive body of the state.” authorities or local government." Which of them should be contacted if the land is in (outside) private ownership is a mystery. What to do if these bodies do not respond to the requests of applicants is also unclear.

It is unclear to whom these bodies should “patronize” by giving consent to “preliminary approval” - after all, they cannot make positive decisions regarding any requests! The law should indicate that those applicants whose projects are of significant public importance can expect positive decisions. In the United States, state laws directly name those organizations (for example, pipeline companies) whose harassment of other people's lands is justified by the public significance of the proposed facilities.

Confusion of concepts, inaccuracy of terms. Linguistic errors include confusion of concepts and inaccuracy of terms used. Yes, Art. 123 of the Water Code of the Russian Federation of 1995 establishes a system of payments for the use of water bodies. Among the first is the fee for the use of water bodies, and this fee is immediately deciphered as “water tax”. Thus, the economic payment (it is unclear in whose favor) is replaced by a tax payment. This substitution is not at all harmless, because tax authorities by their nature are not equipped to collect fees for water use (in the same way as for the extraction of minerals or for timber harvesting - although both are assigned to them by law).

In mining legislation, exploration drilling is equated to the use of subsoil, although this “use” requires only expenses from geological organizations.

Ambiguity of the concepts used. Since laws have to use special terms, the latter require clarification. Such an explanation is contained in a number of laws - either in articles where these terms are used, or it is included in a special article (if special terms are used in many articles of the law). However, glossaries created in this way are not always complete, so articles of laws include special terms that are not explained anywhere.

The explanations already given are not always qualified. In the same Water Code, the key concept for water management is “water body” in Art. 1 is explained as “the concentration of water on the surface of the land in the forms of its relief or in the depths, having boundaries, volume and features of the water regime.” In this definition, the very explanatory concept - water regime - requires explanation. In addition, the most important features of a water body that separate it from a well, temporary reservoir and watercourse, or from an industrial wastewater reservoir, sedimentation tank, swamp, puddle are not indicated: its economic and (or) environmental value and its ability to serve public needs. These last characteristics have not only a clarifying significance for legal regulation, but also a legislative feature: the question of the economic or other value of a particular accumulation of water cannot be decided at the federal level, which implies the need to expand the competence of regions in relation to water.

Contamination of laws with alien material. The main content of laws should be rights and obligations - both material and procedural (procedural). Practice allows the introduction of general declarations into laws, although the possibility of “deriving” from them by interpreting rights and obligations is controversial.

But many laws contain not so much the specified “legal matter” as “ educational material”, which serves to ensure that legislators themselves can understand the subject of regulation and the regulatory tasks that they set for themselves. Thus, they confuse the law with explanatory notes and other documents that should accompany the lawmaking process.

Often, articles of law contain only ideas on the topic of “how it should be.” At the same time, it is not indicated who and how should implement these ideas and what the sanctions are in case of non-execution (improper execution). Such articles are essentially declarations of intent and should not clutter up the text of the law.

Limits of the law. Legislators do not always ask themselves whether the law is capable of coping with the problem that worries them. If the subject matter of regulation is too varied and not amenable to formal definition, then (we can say) it is “inaccessible” to the law.

The way out of this situation is for regulation to be carried out not by law, but by a narrower (special) document, for example a professional code. An example is the recent agreement of the heads of television channels to reduce (eliminate) scenes of violence in their programs.

The legislator is (possibly) required to adopt a general rule that when considering such cases in courts (or administrative authorities), judges took into account the customs and rules adopted at the professional level in this area of public relations, as did Civil Code in relation to business customs (Article 5).

Branches of law, connection of norms and conflicts of law. The grouping of laws into special branches of law usually occurs in cases where laws that have a common subject of regulation are combined into a code. For example, land laws received the outlines of a branch of law with the adoption in 1922 of the Land Code of the RSFSR (and the land codes of other republics). The Code helps the user to review in one document the entire group of laws that interest him, and the legislator to check their mutual compliance and find gaps. Unfortunately, it is not customary to provide codes with subject indexes, although this would make them easier to use.

Some codes, for example the Civil Code, contain instructions that civil law norms adopted in other laws must comply with the Civil Code (Article 3). However, “reconciliation” of the relevant bills with the Civil Code often does not occur. Thus, the Ministry of Economic Development developed in 2005 a concept (and a draft law) on autonomous institutions in the field of medicine, education, sports, etc., with the aim of achieving their self-sufficiency and freeing up the state. budget from their full funding<*>. At the same time, it ignored that the Civil Code does not have the concept of an autonomous institution and that if such is recognized, it must be mentioned in the Civil Code. In addition, it did not take into account that the Civil Code defines the rights and obligations of (“merely”) institutions and that if autonomous institutions appear in the legislation, it will be necessary to distinguish these structures from already known institutions. IN otherwise confusion, disputes and conflicts at all levels are inevitable.

To better connect laws related to several branches of law, a technique is practiced such as cross-referencing related laws to each other. Such mutual references, explicitly or implicitly, are present, for example, in the Civil Code and in the Land Code of the Russian Federation. It is possible to transfer (borrow) norms from one Code to another. But in some cases both of these methods are ignored. Sometimes relations that can be regulated by related branches of law are simply bypassed.

Thus, when drawing up the Housing Code of the Russian Federation, the “land issue” was almost completely bypassed, although considerable problems exist with the improvement of households, and with their borders, and with the unauthorized placement of garages and other objects in courtyards, and with easements (the right of passage and passage of strangers persons). The Housing Code did not use the term “homeownership” itself; as far as we know, this was done deliberately “so as not to intrude” into related areas of law.

This position is completely flawed. Firstly, no one forbade the authors of the Housing Code from enriching land and civil legislation, since the new norms would not conflict with those already adopted. And secondly, the authors of the Housing Code did not take into account the concept of the main thing and its accessory, which is present in both the Civil and Land Codes. According to this concept, the courtyard (as well as the underground facilities that serve the house) is part of the residential building. The yard and the house form an economic complex, which is subject to legal regulation as a single whole.

Preparation of bills: understanding the actual state of affairs. Although the authors of bills usually know (at least in general terms) the subject of regulation, they resort to the help of experts. However, this is not always the case. In addition, even if experts are involved, in many cases this is not enough, because the experts themselves are usually specialists in relatively narrow areas that do not cover the entire scope of the bill.

In Russia, the so-called so-called Parliamentary hearings, the materials of which are published. This last technique allows you to do more than just listen to the opinions of knowledgeable people. He disciplines the latter, forcing them to prepare more carefully and factual material, and your argument presented at the Hearing. In addition, other interested parties, including those who can influence the course of discussions, have the opportunity to become familiar with published facts and opinions.

Currently, there is a poverty of literature covering this or that area of social relations; this makes it difficult to fully discuss the proposed bills. For example, when preparing the (recently adopted) Housing Code, it would be very useful to highlight the experience of managing housekeeping on the part of current housing cooperatives, homeowners' associations, as well as pre-existing housing cooperatives, but books or brochures on this topic are not known. Many people, even specialists, do not know the experience of relationships between current housing organizations and public utilities serving the housing sector. Thus, the forms of standard contracts that are used in these cases are not known.

Apparently, when preparing such an important document as the Housing Code, it would be necessary to order a series of brochures highlighting the accumulated experience from knowledgeable authors or institutions. Only in this case could one hope that the new law would not miss important unresolved problems and would not propose solutions that would diverge from the actual circumstances.

The long-established (but rarely used) method of publishing bills should be viewed in the same light, in order to collect additional information, as well as arguments for and against the solutions proposed there.

Invasion of federal laws into the competence of local authorities. Politicians and publicists have many times pointed out the inconsistency of a number of regional laws with the Constitution and laws of the Russian Federation. At the same time, the fact remains that a large number of federal laws, in violation of Art. 130 and 131 of the Constitution of the Russian Federation and paragraph 2 of Art. 11 of the Land Code of the Russian Federation interferes with the competence of local authorities.

For example, the same Land Code of the Russian Federation dictates to local authorities how they should value their land, to whom and under what circumstances they should sell it, etc.

Foreign experience in legislative technology is useful and very instructive. In many European countries, for many years, rules have been steadily applied not only to the ways of drafting legislative texts, but also to preparing them from the point of view the right choice the subject of regulation and the form of the act. The corresponding requirements have received universal recognition. Thus, on June 10, 1991, the Federal Minister of Justice of Germany approved the “Handbook on the compliance of laws and regulations with current law and their uniform design.” The recommendations provide characteristics of the criteria for determining the subject of regulation, concepts, basic and auxiliary means, the wording of legal regulations, the procedure for drawing up a primary law and an amending law, legal regulations and the promulgation of new versions of laws.

In Poland, France, the Czech Republic, and Hungary, there are technical and legal rules contained either in parliamentary regulations or in special documents of governments and ministries of justice. A kind of unification in this area is facilitated by the recommendations of the European Association for the Advancement of Legislation, the Council of Europe glossary on local self-government, etc.

What is appropriate to do? In our opinion, a set of issues should be resolved:

a) develop and approve by resolution of the Government of the Russian Federation “ General rules legislative technology". This will ensure a measure of uniformity that will help improve the quality of all legislative acts;

b) speed up the adoption of the Federal Law “On Regulatory Legal Acts” (after the first reading), which should contain the basic characteristics of laws. Thus, the foundations of the official system for preparing the texts of legal acts will be laid;

c) complete work on the Classifier of Legal Acts, which has been underway for several years;

d) introduce training for civil servants and deputies in the basics of legislative technology. This can be done in the advanced training system, IPC, etc. Such a special course is also possible in law schools;

Thus, the problems of legislative technology are becoming relevant in the context of the growing volume of lawmaking and the complex process of law enforcement. Their effective scientific and practical solution is extremely necessary.

Conclusion

legislative technique law conflict

concept of legislative technique,

elements of legislative technology.

In general, legislative technology can be defined as a system of historically established rules, techniques and means, based on the achievements of legal theory and proven by the practice of rule-making, used by government bodies in the process of constructing codes, individual laws, articles and their elements, in order to further improve their form. When developing a modern definition of legislative technology, one must constantly remember that its main purpose is to solve problems of the relationship between the content and form of law. Its purpose is to give laws a form that would fully correspond to their content and meet the requirements of accessibility, simplicity and clarity.

The basic rules of legislative (legal) technology are: unity of the content of the legal norm and the form of its expression; logical sequence of presentation, interrelation of regulatory requirements placed in the act; absence of internal contradictions; maximum compactness of presentation of legal norms with depth and comprehensiveness of reflection of their content; clarity and accessibility of the language of regulations; accuracy and certainty of wording and terms used in legislation.

The most important of the rules of legal technique is the unity of the content of a legal norm and the form of its expression. According to this rule, a rule of law must be stated through normative legal regulations, legal formulas of various types, allowing for a uniform and unambiguous understanding of its content. However, this rule is not followed in all draft technical regulations. Thus, most projects provide for an insufficient number of mandatory rules that establish legally binding specific minimum requirements security. Bills in most cases refer to various kinds of technological regulations, instructions, technical documentation, technical files, suggesting the establishment of safety standards in these documents, but without disclosing their nature.

It is necessary to fully prepare for the development and adoption of a new law, which should be an event in public life, become a turning point in a group of similar problems. This means taking an inventory of the regulatory legal framework, clarifying its negative and positive aspects, and the reasons for poor efficiency. The validity of a normative legal act requires the period necessary for officials and other law enforcement officials to study and master the act, implement it into practice, accumulate experience in compliance, begin analysis and generalization in order to eliminate possible gaps, contradictions, conflicts and other shortcomings.

List of used literature

1. Alekseev S.S. General theory of law. T. 2. M.: Legal literature, 1982.

2. Bashmakov A. Legislative technology and folk law // Journal of Min. Justice. 1904. No. 1.

3. Bentham I. Tactics of legislative assemblies. - St. Petersburg, 1907.

4. Large legal dictionary / Ed. AND I. Sukhareva, V.D. Zorkina et al. M.: INFRA-M, 1998.

5. Butkevich F.P. Civil Code. System and plan for codification of laws. - Warsaw, 1905.

6. Vlasenko N.A. The language of law. Irkutsk, 1997.

7. Legislative technology / Ed. Yu.A. Tikhomirov. M., 2000.

8. Ivlev Yu.V. Logic for lawyers: Textbook. Publishing house "Law College of Moscow State University", M., 1996.

9. Iering R. Legal technology. - St. Petersburg, 1906.

10. Constitutional legislation of Russia. M.: Gorodets. Formula of Law, 1999.

11. Lyublinsky P.P. Technique, interpretation and casuistry of criminal law. // Legal notes. fak. Petrograd University. - P., 1917. Issue. V. S. 2.

12. Lyublinsky P.P. Technique, interpretation and casuistry of criminal law. // Legal notes. fak. Petrograd University. - P., 1917. Issue. V

13. General theory of state and law. Academic course in 2 volumes." T. 2. Theory of law. M., 1998.

14. General theory of law. M.: Publishing house of MSTU im. N.E. Bauman, 1995.

15. Okunkov L.A., Roshchin V.A. Veto of the President, M.: Gorodets. Formula of Law, 1999.

16. Pigolkin A.S. Preparation of draft regulatory legal acts. M.: Legal literature, 1968.

17. Polenina S.V. Quality of law and effectiveness of legislation // Soviet State and Law. 1987. N 7.

18. A set of comments on the draft Special Part of the Criminal Code, developed by the editorial commission (Comments on the chapters of the draft on damage and theft of property). - St. Petersburg, 1890. T. 4.

19. Sorokin V.V. On the systematization of transitional legislation // Journal of Russian Law. 2001. N 7.

20. Tagantsev N. S. Russian criminal law. - St. Petersburg, 1902. T. 1

21. Theory of state and law. M., 1997.

22. Tikhomirov Yu.A., Kotelevskaya I.V. Legal acts. M.: Yurinformtsentr, 1999.

23. Unkovsky M.A. About the ambiguity of legislation as a social disaster, and about the nearest ways to eliminate it. - St. Petersburg. 1913.

24. Shugrina E.S. Legal writing technique. M.: Delo, 2001.

25. Language of the law. M.: Legal. lit., 1990.

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3.2.2. Groups and types of legislative sources of the Soviet period

Decrees of the first months of Soviet power

From the previous it should be clear that the system-forming variety Russian legislation In modern times there were constitutions that were documents of the highest legal force. Accordingly, the characterization of the sources of this period should begin with a consideration of the constitutions adopted under Soviet power. However, the first of the constitutions appeared only in July 1918, almost eight months after the overthrow of the Provisional Government and the transfer of power to the Bolsheviks. The legal vacuum between the fall of the old regime and the establishment of a new one was filled with a very diverse set of documents of different types in nature, self-names and structure. The dominant self-name of such documents was the word “decree”, borrowed from the terminology of the Great French Revolution, and the existence of this complex is limited to the period from the October armed coup to the adoption of the first constitution of the RSFSR, where a strict legislative procedure was first defined. IN national historiography These documents received the collective name “decrees of the first months of Soviet power.” Historical meaning the first decrees of the Soviet government are very large, since it was in them that the configuration of the political and social structure of “the world’s first state of workers and peasants” was determined, and from source studies they are notable primarily for the absence of a unified procedure for adoption, the variety of forms and breadth of topics (from issues of land management and military services until the organization of the automobile industry, nationalization Tretyakov Gallery and “declaring the chairman of the Murmansk Council an enemy of the people”), which fully corresponded to the extraordinary circumstances of the creation of these documents.

The specificity of the end of 1917 - the first half of 1918 was that the Soviet government had to solve not only administrative, but also propaganda tasks, attracting supporters both within the country and (ideally) outside its borders. This additional ideological task gave the texts a journalistic orientation, which is especially evident in the Decree on Peace of October 26, 1917, which is, in fact, not a law, but an appeal addressed to “all warring peoples and their governments” and written in frankly rally style:

Addressing this peace proposal to the governments and peoples of all the warring countries, the Provisional Workers' and Peasants' Government of Russia also addresses in particular the class-conscious workers of the three most advanced nations of mankind and the largest states participating in the present war, England, France and Germany. The workers of these countries rendered the greatest services to the cause of progress and socialism, and the great examples of the Chartist movement in England, a number of revolutions of world-historical significance carried out by the French proletariat, and finally, in the heroic struggle against the exclusive law in Germany and long-term exemplary for the workers of the whole world, the persistent, disciplined work of creating mass proletarian organizations in Germany - all these examples of proletarian heroism and historical creativity serve as our guarantee that the workers of the named countries will understand the tasks that now lie upon them to liberate humanity from the horrors of war and its consequences, that these workers are comprehensively determined and selflessly energetic by their activities they will help us successfully complete the cause of peace and at the same time the cause of liberation of the working and exploited masses of the population from all slavery and all exploitation.

It is noteworthy that the mechanism for implementing this declaration was not only not spelled out, but was not provided for in principle, which is extremely unusual for legislative sources. But among the first decrees there are also documents that are significantly more specific in content, indicating a certain elaboration of the regulated area. To a certain extent, such elaboration was reflected in the Decree on Land, which included the so-called Peasant Mandate on Land, which summarized “242 local peasant mandates,” and to an even greater extent in the Basic Law on the Socialization of Land, approved on January 27 (February 9), 1918 d. It is noteworthy that the Basic Law on the socialization of land did not declare such a sharp break with the “old world” as many other legislative acts of that time, but, on the contrary, contained references to the “historically established system of land use”, which reflected the awareness of the complexity of the tasks government controlled, especially on the scale of a country like Russia.

The enormous scale and spontaneous nature of the changes that took place in the first months of Soviet power affected the person in whose name its decrees were issued. The very first documents of this group - appeals “To the citizens of Russia”, “The revolution has triumphed”, “To the rear and the front” and several more, issued in the first hours after the coup - were signed by the Military Revolutionary Committee of the Petrograd Council of Workers' and Soldiers' Deputies, then the initiative passed into the hands of the delegates of the Second All-Russian Congress of Soviets, and on October 30 (November 12) a decree “On the procedure for approving and publishing laws” was issued, which determined that “until the convening Constituent Assembly» laws are considered and adopted by the Council people's commissars, signed by the chairman of the Council of People's Commissars or one of the people's commissars and either published in the "Newspaper of the Workers' and Peasants' Government" or transmitted by telegraph for publication locally. The Left Social Revolutionaries objected to the right of the Council of People's Commissars to independently issue decrees, demanding that the government be placed under the control of the soviets. However, on November 4 (17), 1917, this right was confirmed by a special resolution of the All-Russian Central Executive Committee (VTsIK). “The Soviet parliament of the working masses,” read the first paragraph of the said resolution, “can have nothing in common in its methods with the bourgeois parliament, where different classes with opposing interests are represented and where representatives of the ruling class turn regulations and orders into an instrument of legislative obstruction,” and This means, as stated in the second paragraph of the same document, it is impossible to “deny the Council of People’s Commissars the right to issue, without prior discussion by the Central Executive Committee, urgent decrees within the framework of the general program of the All-Russian Congress of Soviets.” A little later, on November 17 (30), the “Order on the relationship between the All-Russian Central Executive Committee and the Council of People’s Commissars” was issued, which stated that “according to the decision of the Second All-Russian Congress of Soviets, the Council of People’s Commissars is entirely responsible to the Central Executive Committee,” and at the same time it was recognized that that the Council of People's Commissars has the right not only to carry out “measures to combat counter-revolution,” but also to adopt “legislative acts, as well as orders of major general political importance,” submitting the latter “for consideration and approval of the Central Executive Committee.” Thus, the Council of People's Commissars became the center of lawmaking in the first months of Soviet power. A number of decrees, for example, the decrees “On compulsory training in the art of war”, “On the procedure for filling positions in the Workers’ and Peasants’ Red Army” and “On the period of service in the Red Army” (all on April 22, 1918), were issued not by the Council of People’s Commissars, but All-Russian Central Executive Committee. Finally, some decrees - “On donations” of May 20, 1918, Regulations on the revolutionary tribunal under the All-Russian Central Executive Committee of May 29, 1918, “On the organization and supply of the rural poor” of June 11, 1918 - were formalized as joint decisions of the All-Russian Central Executive Committee and SNK. Obviously, behind these fluctuations there was a search for the optimal mode of functioning of the Soviet state as a system.

Considered in their entirety, the decrees of the first months of Soviet power demonstrate the depth of the social upheavals that gripped Russian society in 1917.

Constitutions of the Soviet period

Next important step on the path to the formation of the Soviet state and the formalization of Soviet legislation was the adoption of the Constitution of the Russian Socialist Federative Soviet Republic. The constitutional commission created by the All-Russian Central Executive Committee in April 1918, chaired by Ya. M. Sverdlov, considered three projects - “ General provisions Constitution of the RSFSR”, prepared by the Bolsheviks, “Draft Constitution of the Labor Republic”, put forward by the Socialist-Revolutionaries-maximalists, and “Basic principles of the Constitution”, developed by the jurist and psychoanalyst M. A. Reisner and embodying the radical anarcho-syndicalist views of the so-called left communists. Having discussed these documents, the commission, which was dominated by the Bolsheviks, spoke out in favor of the first draft, which, with some amendments, was approved by the V All-Russian Congress of Soviets on July 10, 1918 as the first constitution of the RSFSR.

The spread of Bolshevism to the outskirts of the former empire entailed the adoption of the following constitutions - the Soviet Socialist Republic of Belarus (February 1919), the Ukrainian Socialist Soviet Republic (March 1919), the Khorezm People's Soviet Republic (April 1920), the Far Eastern Republic (April 1921), Soviet Socialist Republic of Azerbaijan (May 1921), Bukhara People's Soviet Republic (September 1921), Socialist Soviet Republic of Armenia (February 1922), Socialist Soviet Republic of Georgia (March 1922), Transcaucasian the Socialist Federative Soviet Republic (December 1922), the Khorezm Socialist Soviet Republic (October 1923), and finally the first Constitution of the USSR (January 31, 1924). Not all of the listed constitutions were typically Soviet and were consistently socialist in nature. On the contrary, the Constitution of the Khorezm NSR of 1920 recognized private ownership of the means of production, waqf land tenure, religious education, Sharia courts and customary law, and the Constitution of the Far Eastern Republic spoke of a multi-structured economy and did not contain the term “council” (although the functions of the meetings of authorized representatives and the People’s Assembly of the Far Eastern Republic largely coincided with the functions of councils, and the state was led not by the president, but by a collective body - the Government, elected People's Assembly approximately the same way as the All-Russian Central Executive Committee was elected in the RSFSR). There was no complete identity between the constitutions of the republics declared socialist Soviet: Let’s say, in the Constitution of the RSFSR a fixed number of people’s commissariats was established (17), and in the Constitution of the Ukrainian SSR the question of the number of people’s commissars and the subjects of their jurisdiction was left to the discretion of the All-Ukrainian Central Executive Committee. Finally, the Constitution of the USSR of 1924 was not an original legislative act, but the incorporation of two documents - the Declaration on the Formation of the USSR, proclaimed in December 1922, and a significantly expanded version of the union treaty adopted at the same time. Such liberties were reflected, on the one hand, by the spontaneous nature of state building in the first years of Soviet power, and on the other, by the Bolsheviks’ desire to attract the largest possible number of supporters, especially in those regions where there was no possibility of establishing a new order solely by force. However, victory in the Civil War made such compromises unnecessary, buffer and puppet states were eliminated, and constitutions were brought to a common denominator.

The first wave of such legal unification swept in the second half of the 20s in connection with the adoption of the Union Constitution of 1924 and the national-state delimitation of Central Asia, the second - after the adoption of the “Stalinist” constitution of 1936, the third - in the late 70s , after the adoption of the constitution of 1977. At the same time, both the all-Union constitution was the basis for the constitutions of the union republics, and the constitutions of the union republics became the basis for the constitutions of the autonomous republics. The result of the process was the emergence of a set of almost identical documents and complete unification of the country's legal field.

Constitutions were developed not only by the Soviet government and its satellite regimes. As examples of non-Bolshevik constitutions that appeared during the period Civil War in the territory of the future Soviet Union, we can note the Constitution (Statute of state structure, rights and freedoms) Ukrainian People's Republic dated April 29, 1918 and the Basic Laws of the All-Great Don Army, adopted by the Great Military Circle on September 15, 1918. As a rule, local state formations of a non-Bolshevik orientation ceased to exist before they managed to acquire their own legal system; however, the goal of a significant part of the white movements was not so much the establishment of a new order as the restoration of the old, including legislation Russian Empire, so that the legislative activity of the white government was often limited to the declaration of the restoration of tsarist laws. At the same time, such rulemaking is of great interest as a phenomenon of social psychology and evidence of a certain legal culture.

The most important feature of Soviet constitutions is their propaganda orientation. A kind of rally tone was already set in the first constitution of the RSFSR in 1918, which included the Declaration of the Rights of the Working and Exploited People, written by V.I. Lenin and approved by the Third Congress of Soviets. This declaration (and therefore the Constitution of 1918) stated in particular (Article 4):

Expressing an unshakable determination to snatch humanity from the clutches of financial capital and imperialism, which have covered the earth with blood in this most criminal of all wars, the Third All-Russian Congress of Soviets fully joins the policy pursued by the Soviet government of breaking secret treaties and organizing the broadest fraternization with the workers and peasants of the armies currently at war with each other. and achieving, at all costs, by revolutionary measures, a democratic peace of working people without annexations and indemnities, on the basis of the free self-determination of nations.

In some fragments the style of the legislator rose to Church Slavonicism:

The Russian Socialist Federative Soviet Republic recognizes labor as the duty of all citizens of the Republic and proclaims the slogan: “He who does not work, let him not eat”(v. 18.) [emphasis added. – D.D.].

At the same time, the constitution itself was proclaimed a temporary document adopted at transition period and designed to contribute ... to the establishment of the dictatorship of the urban and rural proletariat and the poor peasantry in the form of a powerful All-Russian Soviet power in order to completely suppress the bourgeoisie, eliminate the exploitation of man by man and establish socialism, in which there will be no division into classes, no state power (Article 9) .

This positioning of the document, repeated in the Constitution of the RSFSR of 1925, was influenced by the Marxist theory about the withering away of the state on the path to communism.

The texts of the all-Union Constitution of 1924 and the republican constitutions created after its adoption were kept in a stricter tone - the slogans remained only in the Declaration on the Formation of the Union of Soviet Socialist Republics:

Since the formation of the Soviet republics, the states of the world have split into two camps: the camp of capitalism and the camp of socialism. There, in the camp of capitalism, there is national enmity and inequality, colonial slavery and chauvinism, national oppression and pogroms, imperialist atrocities and wars.

Here, in the camp of socialism, there is mutual trust and peace, national freedom and equality, peaceful coexistence and fraternal cooperation of peoples.

On the contrary, the “Stalinist” constitution of 1936 returned some slogans (with stylistic changes) and even expanded their number:

Labor in the USSR is a duty and a matter of honor for every citizen capable of working, according to the principle “He who does not work, neither shall he eat.” The USSR implements the principle of socialism “From each according to his ability, to each according to his work” (Article 12).

Finally, the “Brezhnev” constitution of 1977 contained a detailed description of the “Fundamentals of the social system and policy of the USSR” (Articles 1–32), where the already familiar slogans were accompanied by detailed explanations:

The source of growth, social wealth, the well-being of the people and every Soviet person is the labor of Soviet people, free from exploitation.

In accordance with the principle of socialism “From each according to his ability, to each according to his work,” the state exercises control over the measure of labor and consumption. It determines the amount of tax on income subject to tax.

Socially useful work and its results determine a person’s position in society. The state, combining material and moral incentives, encouraging innovation and a creative attitude to work, contributes to the transformation of labor into the first vital need of every Soviet person (Article 14).

Under certain conditions, articles of this kind turned into a formidable weapon of reprisal against undesirables. In particular, words about workers and eaters served as a formal basis for the criminalization of the so-called parasitism, i.e., in fact, deriving livelihood from any activity other than officially permitted. It is obvious, however, that the inclusion of such aphorisms in the constitution pursued not only and not so much formal legal as propaganda objectives.

Periodic changes in Soviet constitutions also indicate the ideological orientation of the latter. A change in the fundamental law is not an extraordinary event, but, as a rule, it occurs against the background of political upheavals - wars, the establishment and fall of dictatorships, government crises, etc. In the Soviet Union and its republics, constitutions were changed in a situation of relative stability, signaling no a new stage in the development of society, but a gradual evolution of its ideological basis. If the content of the constitutions of the 1920s was determined by romantic ideas of world revolution, then the constitution of 1936 recorded the “successful construction of socialism” in one particular country. Against this background, the gap between the next major turn in the general line of the party, associated with the Khrushchev thaw, and the next constitutional reform, which took place only at the end of the 1970s, in a completely different political situation, is somewhat surprising. However, the constitutional commission, the result of whose work was the adoption of the all-Union Constitution of 1977, was convened by the Supreme Soviet of the USSR back in April 1962, and its long work is connected, on the one hand, with political changes caused by the resignation of N. S. Khrushchev, and on the other hand, with the general decline in the efficiency of the Soviet state apparatus in the second half of the 1960s - 1970s.

In general, the constitutions of the period 1917–1991 represent clear evidence of the ideological vicissitudes that accompanied the evolution of Soviet society and the state from the moment of its emergence to its collapse.

Codes and “Fundamentals of Legislation”

The next important type of Soviet legislation was codes , which combined legal provisions that operated in a particular area. The development of codes designed to establish new social relations began almost immediately after the Bolsheviks came to power, so the first document in this series - the Code of Laws on Civil Status, Marriage, Family and Guardianship Law - was approved by the All-Russian Central Executive Committee on September 16, 1918. The second became the Labor Code, adopted in December of the same year. The choice of areas that should have been rebuilt in the first place is indicative: maximum simplicity in the field of family relations and the protection of workers' rights constituted the fundamental and carefully worked out points of the program of the Russian Social Democrats.

In the 1920s, work on the codes continued. In 1922, the Criminal, Civil and Land Codes of the RSFSR appeared, a little later - the new Code of Labor Laws, the Code of Family and Marriage, the Forestry Code, the Customs Code, etc. In 1926, the Criminal Code of the RSFSR, which in its first edition turned out to be too short and therefore little applicable in practice, it was redesigned. It is noteworthy that if, when developing the foundations of family, labor or land law, the Bolsheviks aimed to break with the legal principles of tsarist times, which were labeled “bourgeois,” then the norms of criminal and civil law were widely borrowed from previous legislation and the experience of Western countries. This was due to both the lack of necessary experience among legislators and the complexity of regulating such legal relations. An appeal to the legal experience of the “old regime”, and in some situations to customary law, was inevitable in such a situation.

An important feature of Soviet codification was that the legislator had to not only form the foundations of the new socialist law, but also adapt these latter to the characteristics of the union state. The Union Treaty of 1922 and the Constitution of the USSR of 1924 (Article 1) established that civil and criminal legislation, regulation labor relations, land management, land use, exploitation of natural resources, healthcare and education constitute the joint competence of the USSR and individual republics, with the center determining the “fundamentals” and “general principles”, and the republics putting these general principles into practice. The implementation of such provisions gave rise to a specific type of legislative sources called "Fundamentals of Legislation" , which had the character of unique framework laws, the norms of which were developed and specified by the codes of the union republics. For example, the “Basic Principles of the Criminal Legislation of the USSR and Union Republics” approved by the Resolution of the Presidium of the Central Executive Committee of the USSR of October 31, 1924 contained only a general part that determined the limits of action of Soviet criminal legislation, statute of limitations, main types of punishments, aggravating or mitigating circumstances and etc. Specific elements of crimes were introduced in special parts of the criminal codes of the union republics, which could vary depending on local conditions. So, if, for example, “counter-revolutionary activity” in the Criminal Code of the RSFSR of 1926 was described by Art. 58, then in the Criminal Code of the Ukrainian SSR, adopted in 1927, the same corpus delicti was defined in Art. 54. In addition to the already mentioned “Basic principles of criminal legislation”, in 1924 the “Fundamentals of the judicial system” and “Fundamentals of criminal proceedings” were approved, and in 1928 the “General principles of land use and land management” appeared. The appearance of each of these documents presupposed the publication of the corresponding codes of the Union republics, which ensured both the unity of the country's legal framework and the adaptation of all-Union legislation to local conditions.

The codes of the 1920s bore the imprint of the time of their creation. In criminal law, a class approach was proclaimed, and the involvement of the accused “in the past or present in the class of persons exploiting the labor of others” was considered as an aggravating circumstance, and belonging to the working class or working peasantry as a mitigating circumstance. However, in civil law the specific features of the “new economic policy", including three types of property were recognized - state (nationalized and municipalized), cooperative and private, and private ownership could include:

...non-municipalized buildings, commercial enterprises, industrial enterprises, employing hired workers in an amount not exceeding that provided for by special laws; tools and means of production, money, securities and other valuables, including gold and silver coins and foreign currency, household items, household items and personal consumption, goods the sale of which is not prohibited by law, and any property not withdrawn from private circulation.

On the contrary, the concepts of collective farm-cooperative and personal property that were important for Soviet law in later times were absent in the codes of the 1920s. These features did not serve as an obstacle either to the curtailment of NEP at the end of the 1920s, or to the collectivization of agriculture, or to the industrialization of industry: new forms of ownership and methods of management received legal registration by introducing amendments to the codes. In turn, in the late 1950s and early 1960s, large-scale legal reform was carried out. First, new “Fundamentals of Legislation” were released, and then new republican codes in all areas of law. From the new Soviet codes, norms that became odious during the years of the cult of personality were removed (primarily the notorious Article 58), and provisions were included that regulated new legal relations and responded to new types of offenses (for example, Article 88 appeared in the Criminal Code of the RSFSR in 1960 , punishable for “violation of rules on foreign exchange transactions”). In addition, scientific and technological progress has made it urgent to adopt new codes in such areas as subsoil use and exploitation of natural resources, air transport, etc.

Perestroika and the associated change in the socio-economic structure caused adjustments to existing codes, mainly through amendments. In this adjusted form, Soviet codes continued to operate until the adoption of modern Russian laws.

Laws. Resolutions of the Presidium of the Central Election Commission and decrees of the Presidium of the Supreme Council

If the codes determined the general principles of functioning of an entire area of social life at once, then laws introduced or abolished certain measures and practices - compulsory military service, passport regime and so-called propiska, changes in the size and procedure for calculating pensions, individual labor activities, holding rallies and meetings, etc. If in the first years of Soviet power many legislative acts of such kind were called “decree” (although the terms “decree” and “order” were also used), then in the Constitution of 1936 the term “decree” was no longer used. As part of the general rejection of the revolutionary romance of the 20s, the word “law”, familiar to Russian ears, was returned.

Researchers note a decline in the intensity of Soviet lawmaking that occurred in the 1940s–1970s: according to S.V. Zhuravlev’s calculations, “over forty years (1938–1977),” only about 150 laws appeared, i.e., “three times less<…>than in the previous 20 years, from 1917 to 1937." To some extent, such dynamics can be explained by the stabilization of the social structure and the legal institutions that embody it, but another interpretation of this process is more likely - the growing influence of the bureaucratic apparatus, which increased the importance of various kinds of by-laws that replaced legislation as such. It seems that the reduction in the intensity of legislative work became the embodiment of the general bureaucratization of the Soviet state, caused by its fundamental lack of competitiveness.

Soviet legislation went through several stages in its development. The spontaneous revolutionary lawmaking of the first years of Soviet power gave way to the systematic formation of the legislative framework of the “country of victorious socialism,” and the socio-political and ideological changes of the Khrushchev “thaw” made it necessary to revise the existing legal provisions. At the same time, the logic of lawmaking was dictated, on the one hand, by the demands of life, and on the other, by the peculiarities of Soviet power as political structure. A systematic study of Soviet legislation as a historical phenomenon clearly demonstrates the level of efficiency of the state that gave birth to it.

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During this period, they talked more about ST, although this concept covered not only the requirements for legal acts, but also for legal acts.

Features of UT of the Soviet period:

1) reproduction of normative regulations (at the republican level they accepted the provisions of all-Union legislation, developing and clarifying them).

2) the main Codes and current laws were characterized by complex articles, in which. normative provisions of a general nature and non-normative ones were combined.

3) in order to save volume and uniformity of presentation of normative material, the articles contained not one normative instruction, but several (up to 5-8 normative provisions).

4) Characteristic is the special technique of the UT-construction, i.e. samples or standard schemes in which normative regulations (for example, the corpus delicti) are presented.

Works by: Kerimov, Tolstoy, Pigolkin, Kovachev and others.

5.Foreign experience in legal technology

UT in foreign law has a definition. Features that relate to the content and structure of acts. For example, the Belgian Constitution consists of 9 parts, indicated by Roman numerals, and each part consists of articles. Articles can either have divisions or be divided into paragraphs. The Greek Constitution: Parts 1, 2, and 3 have their own headings. Within the parts they are named sections and articles, the section is divided into separate norms.

The Spanish Constitution has a preamble, an introductory section.

A peculiar construction of the US Constitution, in a cat. In addition to the preamble, there are articles with Roman and Arabic numerals. In the United States, there is no uniform regulation of labor technology and they are issued most often on the basis of legislative and judicial practice. The name and style of acts are arbitrary; the name of the act may be descriptive. The preamble is used to explain the reasons for the adoption of the act. In the codes of laws of the United States and states, the requirements for the desired coincidence of an article and one legal regulation are closed. In the state of New York, there is a “General Interpretation of Legislation” law, which provides definitions of special terms.

In Poland there is a government decree on the rules of legislative technology. Please note the requirements: sequence, arrangement of instructions in the structural parts of the structure, where the more general ones are followed by the more specific ones.

The requirements for agricultural machinery in the Federal Republic of Germany have been developed in great detail. The Federal Ministry of Justice has the function of checking draft laws of Art. compliance with their current law and uniformity of use of linguistic means.

6. Concept and types of legal acts

LEGAL ACT- an official written document that has binding force, adopted by an authorized subject of law, expressing authority, giving rise to certain legal consequences, creating a legal state and aimed at regulating public relations.

P.a. there are certain stable characteristics:

a) this writingdocument of a certain kind, having a special form of expressing the information contained in it. This form assumes: structuring the text of the act and its construction according to the rules of legal technology (chapters, articles, elements, norms, etc.); formulating rules of behavior of a long-term or one-time nature; normative language; use of specifically legal concepts and terms; compliance with the mandatory details inherent in each act;

b) has official character, which is manifested in its publication on behalf of an authority, organization or state;

c) publication P.a. strictly allowed withincompetencies the subject authorized to accept it;

d) has target orientation. It expresses social interests in concentrated form. An act can express the state will (if the act is issued on behalf of the state), the will of a social community (the population of a particular territory), the command of the government (if the act is issued by a state body), consent and equal partnership relations;

e) intended to regulate social relations.;

f) is generally binding;

Possible different classifications P.a. based on certain criteria.

According to legal form the following types of PA can be distinguished: a) the Constitution of the Russian Federation, the charter of a subject of the Russian Federation; 6) a law with subtypes - Federal Law, Federal Law, code, general (basic) principles, fundamentals of legislation, federal law on the ratification of an international treaty, federal law on amendments and changes to the Constitution of the Russian Federation, law of a constituent entity of the Russian Federation; c) resolution and other acts of legislative bodies; d) decree and order of the President of the Russian Federation, senior officials of the constituent entities of the Russian Federation; e) resolution, order and other acts of the governments of the Russian Federation and its constituent entities; f) departmental P.a. with subtypes (acts of federal ministries, state committees and other federal executive authorities, executive authorities of constituent entities of the Russian Federation); g) P.a. self-government with subtypes of acts of local self-government and acts based on the results of elections and referendums; h) local (corporate) acts; i) decisions of courts and regulatory authorities; j) public law contracts and agreements; k) programs and declarations; l) regulations and charters; m) international legal acts.

Based on their normative nature: . are divided into normative legal acts, i.e. PA, containing rules of law regulating a certain area of social relations, and individual legal acts that give rise to rights and obligations only for those subjects to whom they are addressed.

By design method act and giving it legal force: a) primary acts - laws, regulations, etc., which directly acquire legal force and are put into effect, and b) secondary (approved) acts, which include, for example, instructions approved by order minister, regulation approved by a resolution of the head of administration, etc.

7. Regulatory legal act- an official document of the established form, adopted (issued) within the competence of an authorized state body (official) or through a referendum in compliance with the procedure established by law, containing generally binding rules of behavior, designed for an indefinite number of persons and repeated application. A normative legal act is an act of lawmaking, which is adopted in a special order, by strictly defined subjects and contains a rule of law.

According to the order of adoption and legal force, normative legal acts are divided into laws and by-laws.

Enforcement act- an official expression of the will of an authorized state body or official aimed at individual legal regulation of public relations.

Law enforcement acts are the result of law enforcement activities.

They can appear in the form of decrees, instructions, commands, sentences, court decisions, instructions, various kinds of orders and other acts. Among law enforcement acts, the most complex in structure and content are court decisions.

Signs of a law enforcement act:

1. Subordinate character . Law enforcement acts are issued on the basis of legal norms and must comply with them.

2. State-imperious character . Law enforcement acts are issued on behalf of the state by authorized state bodies and officials within their competence. The state controls the execution of the law enforcement act, using coercive measures if necessary. On the other hand, there is the possibility of appealing (protesting) law enforcement acts to a court or a higher government body.

4. Individual legal nature . Law enforcement acts contain specific instructions designed for one-time use in a specific factual situation. They are always addressed to specific addressees and are limited to one-time use.

5. Formalized nature . We are talking about strict compliance with the stipulated stages and procedures of preparation, examination, and issuance of law enforcement acts. Each act is issued in a specific form, has an appropriate name and mandatory details.

Interpretative act (act of interpretation of law) is a legal act that contains an explanation of the meaning of legal norms.

Features of acts of interpretation of law:

They represent an explanation of the meaning of legal norms;

They do not have independent meaning and act in unity with the norms that they interpret;

They are not a form or source of law.

Interpretative acts are divided into:

Depending on the types of official interpretation - into acts of normative (authentic and legal) and casual interpretation;

Depending on the bodies giving the interpretation - on acts of state authorities, management, judicial and prosecutorial bodies, etc.;

Depending on the subject of legal regulation - on acts of interpretation of criminal law, administrative, civil, etc.;

Depending on the nature - on material and procedural acts;

Depending on the form - decrees, resolutions, orders, instructions, etc.;

Depending on the legal nature, interpretive acts of lawmaking and interpretative acts of law enforcement are distinguished

8. Law- this is a normative act with the highest legal force, adopted in a special manner by the highest representative body of state power or directly by the people and regulating the most important social relations. According to their legal force and purpose, laws are divided into constitutional(consolidate the foundations of the social and state system and determine the basic legal principles of all current legislation) and ordinary(adopted on the basis of constitutional laws and regulate various aspects of society). Among the latter, codified and current ones stand out. According to the nature of their action, laws are divided into permanent, temporary and emergency. In the Russian Federation, as in any federal state, federal laws and laws of constituent entities apply. The current laws form a system of legislation. The highest legal force presupposes that no other legal act should contradict the law and can neither cancel nor change it; but the law can repeal or change any other legal act. The content of the law forms primary norms, which in some cases receive further specification and development in by-laws.

MODEL LAW - a legislative act of a standard nature, containing normative recommendations, as well as options for possible legal solutions (sometimes explanations of possible options, examples). The creation of m.z. is practiced in the USA (for states) and in the CIS (for member states).

M.Z., approved by the legislative body, acquire the character of an official legislative recommendation. Addressee M.Z. is the national legislative body, which has the right to use it in any form. It is possible to approve the act in its entirety as a national-state law, partial approval with additions, changes, or use as a guideline, as a basis for future legislative work. M.z. may be left without attention

9. Subordinate legal acts are law-making acts of competent authorities that are based on the law and do not contradict it. By-laws have less legal force than laws; they are based on the legal force of laws and cannot oppose them. Effective regulation of social relations occurs when common interests are consistent with individual interests. By-laws are precisely intended to specify the basic fundamental provisions of laws in relation to the uniqueness of various individual interests.

1. General by-laws. These are normative legal acts of general competence which apply to all persons within the territory of the country. Since their legal force and significance in the system of legal regulation, general by-laws follow the laws. Through by-laws, state management of society is carried out, economic, social and other issues of public life are coordinated.

General by-laws include rule-making regulations higher authorities executive power. Depending on the form of government, they are expressed in two types of by-laws.

Regulatory decrees of the President. In the system of by-laws, they have the highest legal force and are issued on the basis and in development of laws. The president's powers in law-making activities are determined by the country's constitution or special constitutional laws. They regulate the most diverse aspects of life related to public administration.

Government decree. These are by-laws regulations, adopted in the context of presidential decrees and designed, if necessary, to resolve more detailed issues of state management of the economy, social construction, healthcare, etc.

2. Local by-laws. These are regulatory legal acts of local representative and executive authorities. They are published by local representative authorities and local self-government bodies. The effect of these acts is limited to the territory subject to them. Regulatory regulations of local government authorities and management are mandatory for all persons living in a given territory. These can be regulatory decisions or resolutions of the council, municipality, mayor's office, prefect on a variety of local issues.

3. Gazette normative legal acts(orders, instructions). In a number of countries, certain structural units of government bodies (ministries, departments) are also vested with law-making functions, which are delegated by the legislature, the president or the government. These are normative legal acts of general effect, but they apply only to a limited sphere of public relations (customs, banking, transport, state credit, and others).

4. Intra-organizational by-laws. These are regulations and legal acts that are issued by various organizations to regulate their internal issues and apply to members of these organizations. Within the framework defined by acts of supreme legal force, intra-organizational regulations regulate a wide variety of relations that arise in the specific activities of government agencies, enterprises, military units and other organizations.

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