Legal technology in the Soviet period is its peculiarity. Stages of development of domestic legislative technology

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 space and uniformity of presentation 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 design, i.e. samples or standard schemes, in which normative regulations are expressed (for example, the corpus delicti).

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.

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 USA there is no uniform regulation of labor technology and they are issued most often on the basis of construction 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 interpretation - on acts of bodies state power, management, judicial and prosecutorial authorities, 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. It is time for its legal force and significance in the system 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 instructions of the highest executive authorities. 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 adopted in the context of presidential decrees and are designed, if necessary, to regulate 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 normative and legal acts that are issued various organizations to regulate their internal issues and apply to members of these organizations. Within the framework determined by acts of the highest legal force, intra-organizational regulations regulate a wide variety of relationships that arise in specific activities government agencies, enterprises, military units and other organizations.

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1. Basic approaches to legal technology in world science. Legal technology as an independent academic discipline. Subject, object, tasks of legal technology.
2. The relationship between the concepts of “legal technique” and “legislative technique”. Types of legal technology: pluralism of opinions.
3. Legal practice, legal tactics, legal technology, legal strategy and legal technology: the relationship of concepts.
4. Development of legal technology in pre-revolutionary Russia. Analysis of elements of legal technology in “Russian Truth”, Code of Laws of 1497, 1550, Council Code of 1649. Carrying out systematization of legislation, its significance for Russian state.
5. Legal technology in Soviet period, its feature. Playback regulations all-Union legislation at the republican level. Use of structures. Connection, fragmentation, sending as techniques of legal technique of the Soviet period.
6. Foreign experience in legal technology. Features of the construction of legal acts.
7. Problems of understanding legislation. “Broad” understanding and “narrow” understanding. The structure of legislation, its peculiarities in the Russian Federation.
8. Concept and types of legal acts. Regulatory legal act, law enforcement and interpretative act: concept, characteristics.
9. Law as a type of normative legal act: concept, characteristics. Kinds federal laws. The principle of the rule of law. Law of the subject of the Russian Federation. Model legislative act.
10. Regulations. Decrees and orders of the President of the Russian Federation. Legal acts of heads of constituent entities of the Russian Federation, administrations of constituent entities of the Russian Federation. Government acts Departmental acts. Local acts. Problems of subordinate lawmaking.
11. Acts of judicial bodies of state power. Acts of local government.
12. Requirements for the language of a legal act.
13. General linguistic rules.
14. Syntactic requirements.
15. Terminological rules.
16. Classification of terms. Basic requirements for terminology.
17. Legal presumption. Legal fiction. Legal prejudice. Legal axiom.
18. Requirements for the logic of a legal act.
19. Requirements for the style of a legal act.
20. Structural units of acts. Title, preamble, appendix, links, footnotes, notes.
21. Requirements for details of legal acts.
22. Concept, nature and object of legislative technology. The structure of legislative technology.
23. The concept of lawmaking, its relationship with rulemaking, lawmaking, legal formation.
24. Types of lawmaking and their features.
25. Principles of lawmaking in modern Russia, their significance for legal technology.
26. Lawmaking process and its stages. Requirements for the lawmaking procedure.
27. Examination of a normative legal act. Principles of legal expertise. Methodology of legal examination.
28. Information support for law-making work.
29. Lawmaking errors and their types.
30. Trends and problems in the development of federal legislation in modern Russia.
31. Factors influencing the law-making process. Objective and subjective in law.
32. Regional law-making, its peculiarities.
33. Problems and trends in the development of lawmaking in the constituent entities of the Russian Federation.
34. Techniques for publishing normative legal acts.
35. The concept of exercise of law. Forms of implementation.
36. Legal implementation and techniques for drawing up legal implementing documents.
37. An agreement as a type of legal implementation document, its structure, content and meaning.
38. Law enforcement activities, concept and types. Requirements for the enforcement procedure.
39. Judicial activity as a type of law enforcement.
40. Judicial acts and techniques for their preparation. Structure of judicial acts. Language of presentation.
41. Legality, validity, motivation, fairness of acts of judicial bodies of state power.
42. Concept, objects, subjects of systematization. Purpose, meaning and principles of systematization of legislation.
43. Codification and general rules for its implementation.
44. Consolidation: concept and general rules for its implementation.
45. Incorporation: concept, subjects, general rules.
46. Accounting for legal acts, accounting methods and their significance.
47. Scientific approaches to understanding interpretation. Meaning, necessity and reasons for interpretation.
48. Interpretive technology, its structure.
49. Subjects of interpretative activity, the meaning of the results of their interpretation.
50. Judicial interpretation, scientific approaches, meaning and features.
51. Development of ideas about the quality and effectiveness of legislation in the history of world political and legal thought.
52. Concept and criteria for the quality of law.
53. The concept of the effectiveness of legal norms. The relationship between efficiency and social value, usefulness, and economy of legal norms.
54. Types of effectiveness of legal norms.
55. Factors that reduce the effectiveness of legal norms. Legal conflicts.
56. Gaps in the law, their types and ways to eliminate and overcome them.
57. Legal nihilism and idealism as psychological factors reducing the effectiveness of legal norms. Deformation of legal consciousness.
58. Legal culture, legal education, legal training.

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E.O. CHINARYAN, Candidate of Legal Sciences, Associate Professor of the Department of Family and Juvenile Law, Russian State Social University e-mail: [email protected] The study of historical experience and the specifics of the development of legislation at different stages of the existence of domestic statehood and the legal system allows us to note some of their features and trace the dynamics of improving domestic legislative technology, as well as identify the main stages of its development.

UDC 340.113.1(091)

Magazine pages: 153-157

E.O. CHINARYAN,

Candidate of Legal Sciences, Associate Professor of the Department of Family and Juvenile Law of the Russian State Social University e-mail: berendeevaeo @mail.ru

The study of historical experience and the specifics of the development of legislation at different stages of the existence of domestic statehood and the legal system allows us to note some of their features and trace the dynamics of improving domestic legislative technology, as well as identify the main stages of its development.

Key words: legislative technique, lawmaking, theory and practice of lawmaking.

Stages of Development of the National Lawmaking Methods

Chinarjan E.

Research of historical experience and features of development of the legal system at various stages of the national statehood and legal framework allows to define and follow the dynamics of improvement of lawmaking methods, as well as to identify the main stages of development of the national legislative methods.

Keywords: legislative equipment, right creativity, theory and practice of lawmaking.

Understanding the features of the development of modern legislative technology should be based on a study of historical experience and the specifics of its development throughout the existence of domestic statehood and the legal system, in which the following main stages can be distinguished.

The first stage is the formation and development of the domestic tradition in legislative technology. This is a fairly long period, which takes several centuries (XII-XVII centuries). It is characterized by the dominance of customary law and the gradual formation of domestic law, as well as the archaic technique of systematization of law, which consisted mainly in giving written form to the norms of customary law, uniting disparate norms of law, judicial practice and custom within the framework of a systematized act. This is exactly how the legislative monuments of that time were compiled - Russian Pravda, Pskov Judicial Charter, Code of Laws of 1497, Code of Laws of 1550, etc. Analyzing the monuments of Russian law, which are considered the most typical for a particular era in terms of means, techniques and rules preparation of legislative acts, it is necessary to note some of their features, which allow us to trace the dynamics of improving legislative technology.

Firstly, the relative isolation of the Russian state from Western European states was determined by the fact that the Russian legal system experienced very little influence from the legal systems of these states, which could not but contribute to the development of original approaches to the legislative technique of normative acts. 19th-century historian and jurist K.D. Kavelin in the article “A Look at the Legal Life of Ancient Rus'” wrote: “An amazing thing! On one continent, separated by several nations, Europe and Russia lived for many centuries, alienating each other, as if deliberately avoiding any close contact. Europe knew nothing about us and did not want to know; we didn't want to know anything about Europe. There were meetings, but rare, somewhat official, distrustful, too strained to bring about a real rapprochement.”

Secondly, from the 11th century, complex processes of the formation of the national Russian language began, which were completed around the end of the seventeenth century. The formation of the national language took place under the conditions of mutual influence of the two written languages ​​that existed at that time: Old Russian (a folk-literary language) and Church Slavonic (the language of high literature, or high style). As a result of the interaction of these two languages, experts believe, by the 14th century the official business style of the Russian language began to take shape - the so-called command language, with the help of which “legal and administrative practice begins to develop written documentation in the modern sense of the word.”

Thirdly, none of the legal monuments of the 11th -12th centuries. has not reached us in its original, primordial form. We have only those sources that have survived only in lists, the earliest of which date from the thirteenth to fourteenth centuries. The oldest known list of Russian Truth is currently considered to be the list included in the Novgorod helmsman, dating back to 1282. Therefore, the language and technique of the most ancient legal monuments can only be judged by lists that were influenced by the legislative technology of their time.

The second stage is the active interaction of domestic tradition and Western European legislative technology (XVIII - mid-XIX centuries). Within of this period The arsenal of domestic developers of regulatory legal acts has been replenished with a number of new legislative techniques. Regulatory acts begin to indicate the year, month, and date of their signing, which, given the significant increase in the number of regulatory documents, had a large practical significance. For the first time, interpretations to articles appeared that served as notes and were designed to relieve the text of the normative act and make it easier to perceive.

The third stage is associated with the beginning of bourgeois reforms in the 60-70s of the 19th century and continued until the establishment of the first domestic parliament in 1906. The judicial reform of 1864, which for the first time created an independent court in Russia, marked a sharp turn in the entire legal life of Russia, primarily in the very understanding of law, which could not but affect the methods of developing legal problems: the servile description of existing laws and regulations is being replaced by their critical analysis . This contributed to the intensification of legal research, including in the field of legislative technology. Thus, if in the post-reform years, when presenting certain issues of legislative technology, the concepts of “legal dogma”, “legal hermeneutics” and “legal mathematics” were used, reflecting still very contradictory ideas about them, then at the final stage of the stage under consideration, the concept of “legislative technology” was formed.

The fourth stage lasted from 1907 to 1917 and was associated with the start of activity State Duma as a representative body vested with legislative powers. The Duma's lawmaking contributed to the development of legislative technology and increased interest in its theoretical and practical aspects. During this period, the rules for using the methods of structuring the texts of normative acts that had developed before the creation of the State Duma changed significantly, which was reflected in greater laconicism of the titles of acts, unification of the design of their operative part, and a moderate number of notes to articles and appendices. The structural organization of legislative texts acquired more and more originality in comparison with acts of executive authorities, in which numerous shortcomings associated with the technique of their structuring were not eliminated so decisively.

The fifth stage - the Soviet development of legislative technology - can be divided into several periods.

The first period - 1920-40s - the creation of the first Soviet regulations.

There had not yet been any serious work devoted to legislative technology in the first years of Soviet power; there was no time to engage in actual scientific activity. IN AND. Lenin, P.I. Stuchka, D.I. Kursky and others statesmen(some of them were also lawyers by training) took part in the creation of the first Soviet codes. In a speech at the next party congress in 1922, V.I. Lenin formulated the tasks for improving legislative work: “We must ensure that the All-Russian Central Executive Committee works more energetically, meets in sessions that should be longer. Sessions should discuss draft laws that are submitted to the Council of People's Commissars without mandatory need. It’s better to postpone it and let local workers think carefully and demand more strictly from the drafters of laws, which is not being done here.”

The degree of simplicity and clarity of a normative act was determined depending on who it was intended for and at what educational and cultural level the users of the law were. In the 1930s and 40s, laws served as propaganda for the new social system, people's power and its policies, although compared with the first years of Soviet power, the tendency towards declarativeness began to be gradually overcome.

Considering the typical techniques of legislative technology of the Soviet period, it should be noted that its system consisted of rules, techniques and methods characteristic of sectoral legislation. Depending on membership in industries, on the hierarchical relationship of acts, their types, content, on the political and ideological state of society, various methods of constructing regulations and legislative acts in general were used, and their forms were modified.

The next bright period in the development of legislative technology in our country was the 1950-70s. The renewal of Soviet legislation began, which caused increased interest in the problems of legislative technology. The works of scientists I.L. were devoted to issues of legislative technology. Braude, L.I. Dembo, D.A. Kerimova, M.I. Kovaleva, A.S. Pigolkina, R.M. Hamrakulova and others. Most of these works examined individual issues of legislative technology, less often - the problems of a complex of such issues were studied in relation to branches of law. There are practically no works entirely devoted to legislative technology that would address issues of the form of legislation within any one branch of law.

A significant place in the study of the concept of legislative technology belongs to the works of A.A. Ushakova. He dealt with the problems of defining legislative technology, its method and methodological foundations, the language of the law and the concept of legislative stylistics.

In the abstract of the candidate's dissertation A.A. Ushakov expressed his understanding of legislative technology; in his opinion, “all questions related to the general doctrine of the legislative system, its structure, its construction are resolved by a special area of ​​legal knowledge. Let’s call it legislative technique.”

During this period, a serious attempt was made to theoretically substantiate the so-called legislative style. The language of the law stands out as a special style of speech.

The problems of the language of law and legislative stylistics are a topic whose solution is possible only by merging two sciences - jurisprudence and linguistics. Stylistics is a branch of linguistics. This science appeared in the late 1950s, and its definition was first formulated by Academician V.V. Vinogradov.

Among the studies of legislative technology of this period, the works of A.S. are of great interest. Pigolkina. He defined legislative technique as “a system of norm-making practice-based and theoretically grounded rules and techniques for creating draft normative acts that are perfect and appropriate in form and structure, ensuring the most complete and accurate compliance of the form of normative regulations with their content, accessibility, simplicity and easy visibility of normative material, comprehensive coverage of regulated issues.” This definition absorbed all the most valuable works of its predecessors; for the first time, a definition of legislative technique as a system of rules and techniques was given, although earlier this idea was expressed in the work “Legislative Technique”. A.S. Pigolkin believed that rules are developed both by practice and theory. In his definition, he emphasized the role of legislative technology in solving problems of the relationship between the form and content of law, and listed the main requirements that apply to the form of laws.

The next period in the development of the concept of “legislative technology” is the 70-90s of the twentieth century. At this time, previous knowledge is seriously concretized and supplemented and new theoretical developments are carried out. Special mention should be made of the works of S.S. Alekseeva, M.I. Kovaleva, D.A. Kovacheva, D.A. Kerimova, A.S. Pigolkina, Yu.A. Tikhomirova, A.A. Ushakova. A serious debate is unfolding over the definition of the concept of “legislative technique”. S.S. Alekseev defines legislative technique as follows: “These are the means and techniques used in the development and systematization of normative acts. The most significant significance here belongs to the technical means and techniques used in codification (codification technology).” From this definition it follows that the author refers to legislative technology as methods and means of constructing laws, as well as means and methods of codification. This is a fairly broad interpretation, since it includes such a concept as codification.

Attention should be paid to the fact that some scientists, for example, I.L. Braude, A.A. Ushakov, R.M. Hamrakulov, identify the concepts of legal and legislative technology. S.S. Alekseev, considering the theoretical problems of legal technology, noted that it consists of legislative (law-making), codification technology and the technology of individual legal acts. In his opinion, legal technology includes procedural (procedural) actions related to the use of technical means and techniques, as well as organizational and technical issues of preparing draft regulations, the procedure for amending them, the procedure for their repeal, etc. On the same page A.S. also stood in position. Pigolkin, who argued that “legislative technology, being integral part legal technology can be briefly defined as a set of rules and techniques for preparing draft regulations.” It follows from this that legislative and legal technology, although two similar concepts, are different and one includes the other.

The concept of legislative style continues to be developed. Both lawyers and linguists deal with this issue. Most researchers identify an independent style used in the office work of government agencies, in the economic sphere, in diplomatic and legal relations. This style is used when formulating normative acts that are part of the book and written fund of the literary language. It is called differently: official-rhetorical, business, official-business, official-documentary. “At the same time, if the colloquial and everyday style performs the function of communication, the artistic and journalistic style performs the function of influence, then the official documentary style, together with the scientific one, performs the function of message.”

When presenting legislative thought in the form of a normative act, language and means are used that are developed specifically for the sphere of lawmaking, i.e., used primarily or even exclusively in this area, which gives reason to distinguish from formal business style its legislative version. This is due to the fact that the volume of the legislative style is quite large, it is distinguished by special social tasks facing the law, a specific way of displaying the subject and is characterized by special compositional and stylistic means, and a special vocabulary.

The immediate subject of this style is not the language of laws in general, but the language of laws as a special style of speech. Legislative stylistics should reflect the development of the language of laws, its historical fate, place in the system of styles of modern literary language, connection with other styles, meaning in society and place in literary language. Having an applied purpose, legislative stylistics will help the legislator assess the suitability and appropriateness of using certain words and grammatical structures to express legislative thought, taking into account semantic and stylistic overtones, detect, correct, and prevent language errors in the activities of the legislator and all those who deal with the law . Legislative stylistics should develop recommendations of a practical nature, define the concept and features of speech stylistics of a legal norm. Ultimately, its essence comes down to the study of the technique of using words to express legal categories and concepts, the ability of the legislator to use linguistic means in legal construction.

Legislative stylistics is a branch of legislative technology, as it studies technical means, techniques with the help of which the legislator solves the problem of verbal expression of legal norms.

Analyzing the regulations of the 1970-90s from the point of view of legislative technology, it can be noted that the overload of Soviet regulations with ideological and political vocabulary is on the decline. The preamble begins to play a socio-political role in a legislative act. With the de-ideologization of public life in the USSR (second half of the 80s - 1991), the preambles of regulatory acts gradually lose their ideological and propaganda functions, their provisions focus primarily on the goals of adopting a specific law and the subject of its regulation.

Thus, the Soviet period became a time of active creative development theoretical foundations and practical aspects of legislative technology. During the existence of Soviet power, both the attitude towards laws and the ways of formalizing regulatory material in them changed. The initial denial of law and the prospects for its development in a socialist society was replaced by the formation of the concept of socialist law and the development of its theoretical foundations. The language of legislation was gradually improved, issues of the development of legislative technology were actively developed in the legal doctrine, and its basic concepts were formulated. In general, the approaches to legislative technology and its theoretical foundations proposed by scientists of the Soviet period remain largely unchanged today and are used in the process of lawmaking.

Bibliography

1 Kavelin K.D. Our mental structure: articles on the philosophy of Russian history and culture. - M., 1989. P. 11.

2 See: Vvedenskaya L.A., Chervinsky P.P. Theory and practice of Russian speech. - Rostov n/d, 1997. pp. 155-157.

3 Kortava T.V. Moscow official language of the 17th century as a special type of written language. - M., 1998. P. 16.

4 See: Ivanov V.V. Historical grammar of the Russian language. 2nd ed. - M., 1983. P. 26.

5 Lenin V.I. Full collection op. T. 33. P. 276.

6 See: Dembo L.I. Problems of codification of Soviet law. - L., 1947. No. 4; Braude I.L. Essays on legislative technology. - M., 1958; Ivanov V.I. Legislative technology and new criminal legislation // Soviet state and law. 1959. No. 9; Kovalev M.I. On the technology of criminal legislation // Jurisprudence. 1962. No. 3; Pigolkin A.S. Improving legislative technology // Soviet state and law. 1966. No. 1; Ignatov A.N. Improving the Special Part of the Criminal Code of the RSFSR // Ibid. 1972. No. 5; Kuznetsova N.F. The effectiveness of criminal law norms and the language of the law // Socialist legality. 1973. No. 9.

7 See: Ushakov A.A. On the concept of legal technology and its main problems // Uchen. zap. Perm. state University (legal sciences). 1967. T. 19. Issue. 5; On the method of legal technology (on the principles and techniques of study) // Ibid. 1963. No. 104; Methodological foundations and legislative period in Soviet lawmaking // Ibid. 1966. No. 147; On the codification of Soviet legislation // Ibid. 1969. T. 14. Book. 4. Part 1; Essays on Soviet legislative stylistics. - Perm, 1967.

8 Ushakov A.A. The most important codification works in the first phase of the development of the Soviet state: abstract of thesis. dis. ...cand. legal Sci. - L., 1953. P. 21.

9 Pigolkin A.S. Preparation of draft regulations: organization and methodology. - M., 1966. P. 10.

10 See: Legislative technology / ed. YES. Kerimova. - L., 1965. P. 16.

11 Alekseev S.S. Problems of the theory of law: a course of lectures: in 2 volumes - Sverdlovsk, 1973. T. 2. P. 143.

12 See Alekseev S.S. Decree. op. T. 2. P. 143.

13 Pigolkin A.S. Preparation of projects... P. 5-6.

14 Gorshkov A.I. Theoretical foundations of the history of the Russian literary language. - M., 1983. P. 63.

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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 the 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.

1. 13. The place of the theory of state and law in the system of social and legal sciences.
2. 4. Legal technology in the Soviet period, its peculiarities.
3. 4). The history of the formation of theoretical ideas about legal technology.

Termination of a normative act means its loss of legal force. The normative act ceases to have effect as a result of:

The expiration of the period for which it was adopted (such as, for example, laws on the tariffs of contributions to state social extra-budgetary funds adopted for a specific year);

Direct repeal of this act (usually the rule on the loss of force of any normative act is contained in a special normative legal act, for example, in the law on the enactment of the Tax Code);

The adoption of a new normative act of equal or greater legal force, regulating the same range of social relations. In such cases, a normative act that has not been officially repealed or its individual norms actually loses force due to the publication of a new normative act establishing a different procedure for legal regulation (thus, with the adoption of part one of the Civil Code of the Russian Federation, which established the institution of trust management of property, the Decree actually lost force President of the Russian Federation dated December 24, 1993 N 2296 “On Trust Property (Trust)”, and with the adoption of the Tax Code, the provisions of Article 22 of the Law “On Income Tax c individuals", establishing measures of liability of tax agents for violation of this law, since such liability is provided for in Art. 123 Tax Code).

Effect of regulatory legal acts in space

The limits of the validity of normative legal acts in space are the limitation of the validity of a normative act only to the territory covered by the sovereignty of the state or the competence of the corresponding law-making body.

These limits are determined on the basis of territorial and extraterritorial principles.

In accordance with the territorial principle, the effect of a normative legal act extends to the entire territory within the state or administrative boundaries of the activity of the law-making body.

Thus, federal laws and other regulatory acts of federal authorities are valid throughout the entire territory of Russia, acts of constituent entities of the Russian Federation only on the territory of these constituent entities of the Russian Federation, and acts of municipal entities are applied only within the boundaries of these administrative units.

The extraterritoriality of a normative legal act means the spread of legal acts of a given subject of lawmaking beyond the territorial boundaries of the activity of this subject.

In other words, the application of the legislation of foreign states on the territory of the Russian Federation is in some cases permitted, but only to the extent permitted by national legislation and defined in an interstate agreement.

For example, in accordance with the legislation of the Russian Federation, when considering civil disputes over property, the court must apply the legal acts of those foreign states on whose territory the disputed property is located.

Effect of regulatory legal acts on the subject

The scope of action of normative acts on the subject is determined by the range of social relations that are regulated by this act, the branch of legislation to which it relates, and the type (general or special) of the legal norms contained in it.

The norms of the Constitution of the Russian Federation have unlimited effect on the subject - they directly apply to all legal relations arising in the state. The effect of industry codes and laws is limited to the scope of the subject of this branch of legislation. So, in accordance with Art. 2 of the Civil Code, the norms of civil law apply to property and personal non-property relations between equal entities and do not apply to property relations based on power subordination - tax, financial, administrative.

There are exceptions to this rule when the law provides for the possibility of applying the provisions of one branch of legislation to relations regulated by another branch. For example, according to Art. 11 of the Tax Code, the institutions, concepts and terms of civil, family and other branches of legislation used in this Code, if they are not defined in the Code itself, are applied in the meaning in which they are used in these branches of legislation.

Within the boundaries of the same branch of legislation, special rules have priority over general ones.

The essence of this rule is as follows. A regulatory act may contain general provisions for a certain range of social relations (for example, for relations related to the conclusion and execution of a purchase and sale agreement) and at the same time provide for special rules specifically established for specific cases (for example, for the purchase and sale of real estate). In situations relating to this particular type of relationship, special rules will primarily apply. So, according to Art. 454 of the Civil Code, the general provisions on purchase and sale apply to a real estate purchase and sale agreement as a type of purchase and sale agreement, unless otherwise provided by the rules of this Code on this type of agreement.

Effect of regulatory legal acts on a circle of persons

As a general rule, it is recognized that regulatory legal acts apply to all persons located in the territory of application of this regulatory legal act and who are subjects of the relations provided for by it, including those that apply to foreigners and stateless persons operating or residing in this territory.

Thus, most tax laws define the circle of persons (subjects) to whom the provisions of this law apply. For example, the subjects of the law on income tax are tax payers, defined as enterprises and organizations (including budgetary ones) that are legal entities according to the legislation of the Russian Federation, including credit and insurance organizations, as well as enterprises with foreign investments created on the territory of the Russian Federation, international associations and organizations carrying out entrepreneurial activity. Therefore, any of the listed persons, if they carry out entrepreneurial activities, will be subject to the law on income tax.

From general rule There are also exceptions, for example, in relation to foreign persons entitled to legal diplomatic immunity. For example, such persons cannot be subject to penalties for violating the criminal and administrative legislation of Russia.

Realization of the right- this is the embodiment in real life and people’s behavior of the content of legal norms. The implementation of the right is carried out by the participants of the emerging legal relations (subjects) themselves in the following ways:

- compliance with prohibitions- with this form of exercise of the right, the subject refrains from actions prohibited by the normative act, does not violate the established prohibitions (for example, the Taxpayer does not prevent access to its territory by a tax authority official conducting an audit);

- performance of duties- with this form of realization of the right, the subject takes active actions aimed at fulfilling the obligations established for him by the normative act (the taxpayer pays the tax, the tax authority keeps records of taxpayers, the seller transfers the goods to the buyer);

- use of rights- this form of exercise of the right in which the subject uses the opportunities provided to him by the legal norm (the taxpayer submits an application for a refund of the overpaid amount of tax, the owner leases the item, the tax authority conducts an on-site audit).

Topic 2: “Topic 2: “Legislative technique: concept and basic elements”

Lecture 2: History of the development of legislative technology. Basic concepts and elements.

History of the development of legislative technology in pre-revolutionary Russia. Legislative technology of the Soviet period. Foreign experience of legislative technology. The nature and purpose of legislative technology. Rules of legislative technology. The main elements of legislative technology: cognitive (evaluation of law and law as ways of social life and its reflection), normative structuring of the text of the law, means of documenting a bill, rules for preparing a bill, etc.

The question of the development of legislative technology is usually considered in two aspects: first - practical development this technique in preparing laws; the second is its scientific development. If practically some forms of legislative technology arise along with the first laws, then the scientific understanding of this type of activity appeared quite late, at the end of the 23rd century. or at the beginning of the 19th century. In the West, this problem was dealt with by Jeremy Bentham (1748-1832), and in Russia it became especially relevant in connection with the codification of Russian laws carried out by M.M. Speransky (1772-1839). The underestimation of the theoretical significance of this problem is evidenced by the fact that not a single Russian encyclopedia contains a definition of the concept of legislative technology.

For the first time, the norms of customary law of Ancient Rus' were recorded not in law, but in treaties between Russians and the Greeks (Byzantium) in 911, 944 and 971. They included separate rules of criminal and inheritance law. It can be assumed that this was the initiative of the Greeks, accustomed to laws, i.e. written law, while Rus' lived according to unwritten customary law. The originals of the treaties have not survived, and their texts remain only in chronicles. The language of these texts is so different from the modern one that all their publications are accompanied by translations into a modern language. Treaties are not divided into articles; this division was introduced into them by researchers for ease of use. It is possible to note the appearance of some basic legal terms in the texts of contracts. So, in Art. 6 of the treaty of 944 talks about liability for theft “according to Greek law and according to the charter and according to Russian law.”

You should pay attention to an interesting nuance: the adjectives “Greek” and “Russian” come after the noun “law”, which is typical for Latin, and not for Russian. This is also a manifestation of Byzantine influence, since the Byzantines dealt with Roman laws written in Latin.

The first legislative act of Ancient Rus' was “Russian Truth”, which exists in short, lengthy and abbreviated editions and in many lists. The initial version is considered to be a short edition, the first articles of which are attributed to Yaroslav the Wise and dated back to 1016, while the appearance of a lengthy edition dates back to the reign of Vladimir Monomakh. This monument of legislation of the 11th-12th centuries. regulates issues of criminal law and procedure.

Like treaties, “Russkaya Pravda” was not divided into articles; they are also included in it in our time by researchers for ease of use. A method of legislative technique, of course, is the normative construction of sentences in the text. The hypothesis and disposition are clearly visible in it, which is expressed by the words: “If..., then...”. The word “even” corresponds to the present “if” or “if”. Sometimes instead of “asche” the words “azhe”, “auger”, “and izhe” are used. If the sentence does not contain these words, its normative character is preserved, which can be shown by the example of Art. 1: “to kill your husband’s husband, then take revenge on your brother’s brother...”. This norm regulated the blood feud that existed at that time. But already in a lengthy edition, following the reproduction of the first article, the second says that the sons of Yaroslav and their husbands abolish blood feud and replace it with ransom - vira. It is added that otherwise Yaroslav’s norms continue to apply.

In addition to this new method of legislative technique, article headings are introduced in a lengthy version. Yes, Art. 3 has the heading “On Murder”, followed by articles related to this type of crime. Unlike the short edition, where such articles are scattered (vv. 1, 19-27, 38), here they are collected together. Headings are also introduced for other parts of the text, for example, “About the servants,” “About the gang,” “About the vault,” etc.

One of the major all-Russian acts should be considered the Code of Law of 1497, which had the title: “In the summer of 7006, the month of Septembria, the Great Prince Ivan Vasilyevich of All Russia laid to rest with his children and the boyars in court.” It exists in one list. In the introduction to the publication of this Code of Laws, the opinion is expressed that it was the first major codified act in Europe and may have prompted the creation of “Carolina” in Germany, since the Code of Laws of 1497. V Western Europe reported the ambassador of the German Emperor Sigismund Herberstein.

The Code of Law also does not have a division into articles; it was made during the first publication of the text by M. Vladimirsky-Budanov. Since the text contains cinnabar initials, L.B. Cherepnin proposed his own division into articles, based on them, but in existing publications the division of M. Vladimirsky-Budanov is preserved. The Sudebnik adopts the use of headings introduced in the lengthy edition of Russkaya Pravda, but this is also not done clearly enough. Thus, the title “On legal literacy” is given in Art. 15, 22 and 40, and the heading “On field duties” is in Art. 4 and 68. The headings show that the Code of Law includes at least the following four previously issued decrees: o governor (Article 20), o riding (Article 30), governor o city court (Article 37) and o tatyakh (Article 39). The decrees were included in the Code of Laws in their entirety without reworking or adapting their text to the new norms.

Probably, this imperfection of legislative technology explains the repetition of headings and content in a number of articles. The normative nature of the construction of sentences in the Code of Laws is preserved, but it is not as clear as in Russkaya Pravda, since it does not use the expressions “if... then...”, and mostly phrases begin with the conjunction “a”.

The language of the Code of Law still requires translation, and since this is an act regulating judicial activity, it contains mainly criminal law and procedural terms. Only in Art. 46, 47, 58 and 70 discuss civil law relations, and therefore this terminology is sparse. There is a term “loan”, but there is no term “claim”. The inheritance is no longer called “ass”, but “status” (Article 60). In the same article there is the term “spiritual letter”, meaning “will”. The terms “plaintiff” and “defendant” are widely used, but in the absence of a clear line between criminal and civil proceedings, they are also used in criminal cases.

In the first years of the reign of Ivan the Terrible, the Zemsky Sobor adopted the Code of Laws of 1550. It was found in 1714. historian B.H. Tatishchev and exists in 40 lists. Its language is so close to modern that the text is published without translation. The introduction to its publication says: “...The code of law of 1550 stands at a much higher level of development of codification technology than all previous Russian legislation.” The higher legislative technique was expressed primarily in the fact that this was the first Russian legislative act, divided into articles and having a preamble. Articles are indicated in Arabic numerals without any other words or symbols. But at the same time, it does not contain headings of articles or groups of articles. This is difficult to explain, taking into account the desire of the drafters of the Law Code, noted in the introduction, to group articles according to their content.

Based on the Law Code of 1550. The text of the Law Code of 1497 is based, but edited, with changes and additions. Let's turn to Art. 56 of the Code of Law of 1497, which reads: “And a slave will be captured by the Tatar army, and he will run out, and he will be free, but the old sovereign will not be a slave.” In Art. 80 Code of Laws 1550 this norm is stated as follows: “And a slave will overwhelm the army, and he will run out and he will be hungry, but the old sovereign is not a slave. And that slave will want to go to his old sovereign, and that slave will be revealed to the boyars, and the clerk will sign on the old fortress, and taxes will be collected at an altyn per head. And when a slave runs with his sovereign, or runs alone without his sovereign, and does not overwhelm the army, and that slave will come out from those lands again to Moscow, and he will be a slave to the old sovereign according to the old servitude, besides the one to whom the sovereign grants something, will give him a free charter.” . If the first article only talks about Tatar captivity, then the new one talks about captivity in general, i.e. the norm is given more general character. Probably, when applying the original article, cases arose when a slave wanted to return to his master, and this is provided for in the new edition. Finally, new edition strives to prevent the possibility of legalizing the escape by reference to captivity, i.e. the possibility of abuse of the established norm.

Interesting article 97 and 98 Code of Laws of 1550; the first establishes the principle that the law does not have retroactive force, and the second is as follows: “And there will be new cases that are not written in this Code of Laws, and like those cases from the sovereign’s report and from all the boyars to the verdict of the arbiter, and those cases in this Attribute to the Code of Law.” Here one can see a clear understanding that no law can provide for everything and its further additions are inevitable, and that these additions should be included in the Code of Laws. In the introduction, this article is assessed as follows: “Particularly noteworthy is Article 98, which establishes the rule - to include each new legislative act in the all-Russian code of laws. This is, in essence, the first norm known to us in Russian law that reflects the direct process of developing laws. All subsequent Russian legislation for about 100 years was developed in precisely this way.”

B legal terminology Sudebnik 1550. contributed little that was new. True, the term “suit” finally appeared (Articles 28 and 44), the term “king” (in the preamble), attached to the term “Grand Duke”. To distinguish the degrees of kinship, the term “nephew” appeared, replacing the expressions “brother” and “sister’s son” used in “Russkaya Pravda”. The next Code of Law of 1589, dating back to the time of Fyodor Ioannovich, does not provide anything new, since its lengthy edition fully included the Code of Law of 1550. But further development of legislative technology can be found in the Consolidated Code of Laws, created at the beginning of the 17th century, but never officially adopted. This codification, connecting three previous codes of law, is attributed to False Dmitry or Vasily Shuisky.

Soviet period

Legislative technology in the Soviet period was given great importance. The methods and rules that define it have been improved from year to year. The present time has received a rich heritage in the form of a formed system of methods and techniques for drawing up and formalizing a legal normative act.

Legislative technique, being one of the components of lawmaking, cannot be characterized as absolutely formal, independent of the influence of a specific historical period activity. Issues of legislative technology are often covered during the development process. theoretical problems o the essence and social content of law. The form of the law, as a rule, correlates with its content. The obviousness of this can be illustrated by the fact that the first laws of the Soviet government were issued in the form of decrees, which seemed to emphasize the revolutionary content of the norms contained in them. Over time, such forms of normative legal acts as principles, principles, and laws appeared. And this is understandable, since we were talking about the most appropriate ways of translating the will of the dominant class in society into legislation.

At the same time, it is necessary to realize that legal technology- this is an independent phenomenon with its inherent qualitative features that make up its content, necessary for any legal matter of any system and regime and having the ability to adapt to their specific features.

In Soviet legal literature, the substantive works of M.M. are devoted to issues of legislative technology. Grodzinsky, I.L. Vraude, H.H. Polyansky, D.A. Kerimova, A.F. Shebanova, Yu.K. Tolstoy, O.S. Ioffe, A.S. Pigolkina, D.A. Kovacheva, A.A. Ushakova, G.I. Shatkova, a large number of articles by theorists and specialists in branch legal sciences S.S. Karinsky, V.I. Nikitinsky, O.H. Sadikova, E.I. Astrakhan and others.

Using the phrase “legislative technique”, I would like to note that we're talking about not only about the techniques and rules that guided the construction of the laws of the USSR or the union and autonomous republics. The analysis covers all categories of legislative acts, which, in accordance with the official doctrine, include resolutions of the Supreme Councils, decrees of the presidiums of the Supreme Councils and those that formed the basis of Soviet legislation - resolutions of the Councils of People's Commissars, the Council of Labor and Defense, and Councils of Ministers at various levels.

Considering the typical techniques of legislative technology of the Soviet period, it should be noted that its system consisted of rules, techniques and methods characteristic of sectoral legislation, and of those universal techniques that were used in the preparation of polythematic regulations. Depending on belonging to branches or institutions of legislation, the hierarchical correlation of acts, their types, content, to a large extent on the state structure of society, its political and ideological state, various methods of constructing regulations and legislative acts were used, their forms varied and modified.

Most characteristic of the legislative technology of the Soviet period method of reproducing regulatory requirements. It was used quite often and consisted of placing in a legal act regulatory requirements included in previously adopted legislative acts. The use of this technique in some cases contributed to a more successful presentation of legal regulations in normative acts, in others it was considered undesirable. The reproduction of normative provisions was observed in acts of both different and equal legal force.

Republican bodies reproduced in the acts they issued certain normative provisions of all-Union legislation, supplementing and developing them in accordance with their competence. This practice was a natural consequence of the federal structure of the USSR and, as a rule, was justified when creating large codified acts - codes. When adopting a code or other act of the republic, issued in pursuance of the law of the USSR, the resolution of the Government of the USSR, the reproduction of all-Union provisions was considered as a method of law-making of the republic, ensuring the pursuit of a single line in the state, economic and cultural construction of the USSR and the union republics. It provided an opportunity for a comprehensive review of legal regulatory material.

The normative provisions of constitutions and foundations, included in the texts of the relevant acts of the republics, acted not only as all-Union normative instructions of direct action, but at the same time as republican legislation. In practice, as a rule, it was not the all-Union directive that was applied directly, but the article of the republican act that was formulated and adopted on its basis.

In the legislative practice of that time one can also find indirect reproduction of regulations. Thus, some provisions of the USSR Constitution of 1936 were reproduced in the constitutions of the union republics, in the fundamentals of legislation, and then in republican codes. For example, the Constitutional principles of publicity of trial proceedings and ensuring the accused’s right to defense (Article 111 of the 1936 Constitution) were reproduced in an amended version in Part 1 of Art. 12 (publicity of the trial) and Part 1 of Article 13 (ensuring the accused the right to defense) of the Fundamentals of Criminal Proceedings of the USSR and Union Republics.