The concept and features of administrative regulations as a source of Russian law

Full Text

Introduction Like any system, law has also developed over the centuries. It should be noted that such development depended on both revolutionary and evolutionary reconstruction, related to economic, judicial, administrative, and other reforms. This development also consisted in the emergence of new sources (forms) of law, that is, a certain external expression of legal norms. An appeal to the history of Russian legislation shows that regulations, as certain forms of law, that is, sources of law in the «narrow» sense, appeared in Russia quite a long time ago. In fact, even in the Russian Empire, within the framework of the military department, service charters and instructions were called regulations. If we talk about the current legal system of Russia, regulations are represented mainly by the instruments of the Chambers of the Federal Assembly of the Russian Federation, regulations of the Government of the Russian Federation, as well as regulations adopted by federal executive authorities, in other words, administrative regulations. Moreover, one of the important elements of the ongoing administrative reform is introduction of administrative regulations into the system of sources of Russian law. At the same time, the analysis has shown that in the process of formation of administrative regulations in the legal system of the Russian Federation, two fundamental starting points can be hypothetically distinguished. In this regard, we should mention the President's Message to the Federal Assembly, dated 2003, when for the first time the need to improve administrative procedures was highlighted at such a high level. Administrative regulations were intended to become a means that would allow achieving the designated goal. Thus, the President has specified the vector for further development of administrative regulations within the Russian legal system. As for the formal aspect, the Decree of the Government of the Russian Federation On the Model Regulations of Interaction of Federal Executive Bodies[124] formed the legal basis for recognizing administrative regulations as sources (forms) of Russian law. The conducted legal analysis shows that this document legally instructs all federal state authorities to adopt regulations that would lay foundation for organizational activities of these bodies and determine the specifics of interaction with other state bodies. Thus, we may assert that the provisions of the administrative reform have formed the ideological and at the same time organizational basis for introducing regulatory legal acts into the Russian legal system (Arzamasov, 2013). The first document proclaiming a new plan for reforming the state apparatus was the Decree of the President of the Russian Federation No. 824 dated July 23, 2003 On Measures for Conducting Administrative Reform in 2003-2004, which aimed at eliminating such a negative phenomenon as duplication of powers and functions of various federal executive authorities[125]. In this connection, A.V. Yatskin drew attention to the insufficient level of scientific elaboration of issues related to legal regulation of the activities of executive authorities, standards for provision of public services and results management (Yackin, 2007:4). Thus, the solution of these problems was assigned to a new type of departmental regulatory legal acts - administrative regulations. Nowadays, administrative regulations are customary in almost all executive authorities, including at the federal, regional, and municipal levels. The significant prevalence of administrative regulations, as well as the importance of the functions performed by them, do not exclude certain shortcomings. The main attention in this matter should be focused on establishing the legal definition of administrative regulations, which would reflect all the basic characteristics (features) of these regulatory legal acts. It is also important to improve the legal and technical aspects of the development and adoption of administrative regulations. Features of administrative regulations Etymologically, the term “regulation” goes back to such meanings as “rule”, “routine”, “control”. The Law dictionary focuses on the normative nature of such act as administrative regulation. The subject of their regulation is the procedure for the activities and internal organization of the relevant body[126]. Another doctrinal definition of administrative regulations was presented by T.Ya. Habrieva, A.F. Nozdrachev and Yu.A. Tikhomirov (Naryshkin & Khabrieva (eds.), 2006:34). It runs as followed: Administrative regulations are regulatory legal acts that consolidate administrative procedures. The weak point of this definition is precisely its laconism, which does not allow listing all the specifically important features inherent in administrative regulations as sources (forms) of modern Russian law. Meanwhile, following the laws of logic, it is necessary to reveal the concept of administrative procedures. The most succinct definition was proposed by Professor B.M. Lazarev, who argued that administrative procedures are a kind of administrative process. Meaningfully, administrative procedures are consolidation of order and sequence of specific actions (Lazarev (ed.), 1988:5). A similar interpretation was proposed by A.V. Filatova, who defines administrative regulations as a set of certain actions and (or) decisions implemented in the process of exercising the powers of a state executive authority (Filatova, 2009:116). Investigating the legal nature of administrative regulations, A.F. Nozdrachev notes that regulations “contain procedural (technological) norms defining conditions, procedure, timing, and sequence of actions of the executive authority for implementing its competence and ensuring laws and administrative acts. This is the essence of administrative regulations and their fundamental difference from all other types of administrative acts” (Nozdrachev, 2011:10-11). Highlighting the features of administrative regulations, we should first note that they are types of regulatory legal acts. This characteristic largely determines other specific features of administrative regulations, revealing the peculiarities of the legal nature of the phenomenon under study. The features of regulatory legal acts include: 1 written in a strictly documented form, 2 established procedure for adoption, 3 adopted by the authorized entity, 4 in a legal force, generally binding, 5 multiply applied (Lysenko, Kramskoj, Ryazanova, 2015: 204). However, such description leaves important questions unanswered. For example, why regulation of important public relations is excluded from this list, being an integral characteristic of law in general, i.e., law as an element of the regulatory system, irrespective of the forms it is expressed in: in the form of a law, administrative regulation, judicial precedent, or regulatory contract. It is also worth noting that regulatory legal acts must represent a certain hierarchy[127], since they, as sources (forms) of law, have different legal force; this means that some of the regulatory legal acts conform with and does not contradict other, higher regulatory legal acts, and are adopted either on the basis of, or in their execution. Vertically oriented construction of normative instruments is an important way of structuring. The criterion of distribution in this case is the legal force of a regulatory legal act, which allows subordinating the content of some of them to others and making the legislation internally consistent. O.V. Anciferova defines the components of the Russian legal system as follows: the Constitution of the Russian Federation, which has the highest legal force, the laws of the Russian Federation on amendments to the Constitution of the Russian Federation, federal constitutional laws, ordinary laws, regulatory legal acts of ministries and departments, regulatory legal acts of local self-government bodies (Antsiferova, 2002:10). Closely related to hierarchy is such a formal feature of law as systemacity, which assumes the presence of a certain internal consistency and interaction of all elements. Only systemic law, without any contradictions between legal norms, can fulfill the tasks facing it. Only an authorized state body or official has the right to adopt regulatory legal acts; in some cases, it is also possible to adopt regulatory legal acts within the framework of the direct rulemaking of the people, e.g., referendum. The regulatory legal act is non-personalized, that is, it is not of an individual nature, since its effect extends to an unlimited number of persons. Only those who find themselves in the conditions provided for by the relevant norms are obliged to follow the provisions of the regulatory legal act, since the prescriptions do not have a specific addressee. In case of violation or disregard of a legal norm, the coercive nature of the law comes into force, ensuring its operation by the state in the person of authorized bodies and officials. The legal force of a regulatory legal act depends, as a rule, on the hierarchical position of the body that adopted the document, on the rulemaking and general competence of the lawmaking bodies of the state. Since administrative regulations are varieties of regulatory legal acts, they possess all their features (Frier & Petit, 2014). At the same time, it is important to take into account that administrative regulations are by-laws, therefore, these regulatory legal acts should be adopted on the basis of and in compliance with federal laws, presidential decrees and governmental acts. Administrative regulations are the result of lawmaking development; they allow specifying the provisions of regulatory legal acts that are higher in hierarchy. As N.A. Vlasenko notes, specification is a transition from law uncertainty to law certainty (Vlasenko, 2014: 68). In connection with the above, it is necessary to pay attention to the peculiarity of the continental legal family, which was highlighted by one of the most famous comparativists, Rene David. The Romano-Germanic legal tradition presupposes the existence of two blocks of acts within the framework of the so-called “written law”: firstly, these are legislative acts issued by a representative body, the parliament, and secondly, these are various acts issued by other state bodies. As Rene David asserts, this block, in turn, is divided into two groups. The first group is represented by acts adopted on the basis and in pursuance of law, whose existence, according to the researcher, does not create any problems, despite the huge number of such acts. However, the dynamic development of social relations shows that legislator objectively cannot foresee the full range of possible situations in the process of creating regulatory legal acts. Modern realities characterized by constant changes, the level of progress achieved in all spheres of public life force the legislator only to indicate a general vector in the process of legal regulation, leaving the specifics for the executive branch, urged to detail and clarify legislative provisions (David & ZHoffre-Spinozi, 2009:95-96). Among other things, administrative regulations are administrative acts, which is why they are binding[128]. Since administrative regulations, as noted earlier, establish administrative procedures, they are procedural acts. Administrative regulations are codified regulatory legal acts. This characteristic emphasizes their specifics of securing legal norms, as well as the structure of administrative regulations and their special legal structure. Codification is the most complete, deep, and radical form of law systematization, providing for a comprehensive revision of normative material and creation of a new, unified and codified act, characterized by a special internal structure. In her dissertation research E.S. Vershinina drew attention to the complex internal organization of legal regulations (Vershinina, 2010:99). Administrative regulations contain the following structural elements: general provisions, list of implemented administrative procedures indicating composition, sequence and timing of relevant actions, procedure, and forms of control over the execution of administrative regulations, pre-trial (out-of-court) procedure for appealing decisions and actions (inaction) of the body and officials involved in the implementation of relevant administrative procedures. Depending on the type of specific administrative regulations, the composition of these structural elements may vary, but in general it preserves the elements mentioned above. Examples can be both administrative regulations on state control (supervision) and administrative regulations on public services. The requirements for the structure of the two designated types of administrative regulations are set forth in the Decree of the Government of the Russian Federation No. 373 of May 16, 2011[129]. Such legal structure of normative acts hinders making unjustified decisions and (or) impose additional responsibilities that are not established in administrative regulations but suggest significant anti-corruption potential. Along with the general codification, which results in codes and fundamentals of legislation, there are also various types of special codification embodied into different types of subordinate regulatory legal acts (charters, regulations, rules). At the same time, administrative regulations occupy a large block among the codified regulatory legal acts of federal executive authorities, which allows to talk about a special regulatory law. It is important to indicate that this term is not synonymous with the so-called regulatory authority, which is a common phenomenon within the Romano-Germanic legal family. In countries such as France, Spain, and Italy, this concept is used to characterize the powers of the government in the field of issuing regulatory legal acts to govern a particular sphere of public relations; the legal force of such acts is lower than that of laws. The specificity of these acts lies in the fact that, in the strict sense of the word, they are not subordinate, since they are adopted on issues that do not have legislative regulation, nor on the basis and in pursuance of legislative acts. It is important to note that in France there is no provision for adopting laws on such matters (Marcou & Moderne, 2006). The analyzed acts in the French legal doctrine are called “autonomous” acts of executive power (Frier & Petit, 2014). At the same time, the concept of “regulations” is also found in foreign legal terminology, however, unlike the Russian legal system, it is used to refer to administrative acts adopted by the government. Exploring the nature of regulatory law, it is also advisable to refer to the concept of “decree law”, introduced into scientific circulation by V.O. Luchin. The researcher meant by this term a set of decrees emanating from the head of state; he noted the political nature of the analyzed phenomenon (Luchin, 1996). By analogy with this term, we use “regulatory law” to denote a set of public law norms that establish administrative procedures and regulate matters of internal organization of authorities, as well as various areas of implementation by authorities of their functions. In this regard, it is important to clarify that regulatory law is an abstract concept denoting the totality of administrative regulations in force within the legal system; regulatory law does not constitute any separate branch. Introduction of the proposed term into scientific circulation will facilitate the process of cognition of administrative regulations, as well as simplify their practical application. The analysis allows to propose the following definition of the concept under study: administrative regulation is a codified regulatory legal act, whose special legal structure mainly establishes administrative procedures and standards aimed at implementing a certain type of legal policy of the state, expressed both in written and electronic form. At the same time, this definition is based on the concept proposed by us in the article Administrative Regulations as a Type of Public Administration Acts[130]. It should be noted that legal policy is understood as the activity of state bodies and civil society institutions whose purpose is to build an effective mechanism of legal regulation that promotes the rights and freedoms of a man and citizen, formation of legal statehood and a high level of legal culture. At the same time, this activity is characterized by such features as systemacity, consistency, and scientific validity (Mal’ko, 2012:42). Summing up, we note that today the analyzed legal phenomenon of regulatory law is a new type of regulation of public relations, carried out with the help of an extensive system of various regulations from the highest state authorities to the local self-government bodies. Features of administrative regulations rulemaking legal technique The legal system of any state is in constant motion: new regulatory legal acts are being adopted, federal laws and by-laws are being amended or supplemented, and the process of regional and municipal lawmaking never stops. In such conditions, the issue of rulemaking legal technique is being updated with renewed vigor. With the development of legal thought, emergence of new concepts and research methods, it is essential to understand how to ensure formal accuracy of legal norms, as well as efficiency of law enforcement activities. Thus, specific rules for drafting legal norms are gradually being established among lawyers to avoid inaccuracies in formulations, gaps in law, collisions, and many other legal and technical faults[131]. It is worth noting that the rules of legal drafting did not appear out of nowhere but are the result of extensive legal practice that revealed various errors, inaccuracies and gaps in legislation, problems of compliance of subordinate acts with higher-ranking ones and many other technical and legal challenges. In order to achieve quality lawmaking activity, the rules of construction, registration and publication of regulatory legal acts were highlighted, including clarity, academic language, consistency, accuracy, absence of repetitions, coherence of parts of a regulatory legal act or several acts to each other. Moreover, a mandatory requirement for regulatory acts provides for specific details such as document number, date of issue, authority that enacted the instrument, name of the instrument and others. Regulatory legal acts are distinguished by special legal constructions. The importance of knowledge and compliance with the rules of the normative legal drafting of regulatory legal acts is due to several reasons. Firstly, such knowledge allows to properly formalize the developed regulatory legal act and submit it to the rulemaking body for consideration. Even the best idea will be rejected, and the draft will be returned to the rule maker (often with sharp critical comments) if it is executed without observing the rules of normative legal drafting. Secondly, non-compliance with the above rules complicates the perception of a legal document, reduces comprehension of legislative texts, complicates systematization and codification of legislation, and as a result, leads to errors in law enforcement practice. Thirdly, compliance with the rules of normative legal drafting is an important indicator of legal culture as a professional qualification of a particular employee; a lawyer who does not know and comply with the elementary rules of legal drafting, quality assurance requirements of a public body, state, and society is hardly worthy of respect. Nowadays, the practice of approving administrative regulations by orders has become widespread, which, in our opinion, is a negative aspect inherited from the Soviet legal system. Administrative regulations, as mentioned above, are codified departmental acts, while orders are simple departmental acts that do not bear a codified character. The current state of affairs is a legal archaism, which should be eliminated. Currently, the processes of developing, adopting, and implementing the provisions of administrative regulations are far from being perfect; there are many important serious issues that require both scientific understanding and practical, and in some cases, legislative solutions. One of the most urgent issues under study is consolidation of such type of regulatory legal acts as administrative regulations in the Federal Law On General Principles of Organization of Local Self-Government in the Russian Federation[132], and in the Federal Law On General Principles of Organization of Public Power in the Constituent Entities of the Russian Federation[133], which replaced the Federal Law On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Constituent Entities of the Russian Federation[134] and came into force on January 1, 2023. The proposed changes will eliminate the existing paradox in the legal system of Russia. A significant number of administrative regulations have been adopted, but the norms of many basic legislative acts neither contain definitions of administrative regulations and systems of these regulatory legal acts nor mention them in principle. An example is the latest edition of the Government of the Russian Federation Decree No. 1009 of August 13, 1997. The lack of clear, uniform technical legal requirements for administrative regulations and rules to the process of developing regulatory legal acts undermines their quality. Many administrative regulations currently contain evaluative concepts, and lead to subjective assessment of the documents submitted by the applicant, which is a powerful corruption factor. The texts of some administrative regulations contain background information, which violates the requirement established in the Government of the Russian Federation Decree No. 37 of May 16, 2011: background information shall be posted on the official website of the competent state body and in other official resources, but not in the text of the administrative regulations. An example of placing background information directly in the text of the administrative regulations is the Administrative Regulations of the Federal Service for State Registration, Cadastre and Cartography for the Provision of State Services for State Cadastral Registration and (or) State Registration of Rights to Immovable Property[135]. Paragraph 8 contains information concerning location of the State body, opening hours, e-mail address, telephone number, and other background information. Such decision is incorrect from the point of view of legal drafting since any change in contact information and (or) address entails the need to adjust the text of the administrative regulation. In this regard, it is advisable to pay attention to the drawback identified by V.O. Buryaga: administrative regulations in many cases contain outdated information (Buryaga, 2015: 36). In our opinion, adoption of the Federal Law On Rulemaking Activities and Regulatory Acts of Federal Executive Authorities allows solving these problems. This regulatory legal act ensures rulemaking competence of federal executive authorities, both from the point of view of procedural aspects, and consolidation of all existing types of departmental regulatory legal acts including administrative regulations. Other possible models of legal regulation of the issue under study are also described in the scientific literature. Thus, Professor Yu.N. Starilov sees the solution to the above-mentioned flaws in the adoption of the Federal Law On Administrative Procedures. According to the researcher, adoption of such regulatory legal act will solve several tasks: to regulate the executive and administrative activities of public administration bodies and to ensure the full functioning of administrative proceedings since it will allow for the court to determine whether the relevant administrative procedures were properly implemented by officials when considering cases arising from public legal relations (Starilov, 2015: 27). We believe that the most optimal variant is the adoption of the Federal Law On Rulemaking Activities and Regulatory Acts of Federal Executive Authorities since such act will not only establish requirements for this type of instruments, but also build up a system of departmental acts as a whole, a model of their relationship, which, ultimately, will contribute to the formation of a coherent, consistent system of Russian law. Moreover, such federal law will allow focusing on concretizing and detailing functions of departmental regulatory legal acts that should conform to the laws, which, in turn, will have a positive impact on the entire mechanism of legal regulation in Russia. It should be noted that the regulatory impact assessment procedure (hereinafter referred to as RIA) is not currently applied to administrative regulations. This situation must be changed, since the RIA is a tool allowing to identify the excessive restrictions, obligations, and prohibitions at the stage of developing regulatory legal acts. The role played by administrative regulations in the mechanism of legal regulation will certainly actualize the need for regulatory impact assessment procedures in relation to such acts. RIA is not only the core of regulatory policy, but it also allows building a professional dialogue between public authorities and experts (Didikin, 2018: 18). Introduction of the RIA procedure contributes to careful spending of budget funds at various levels, which is especially evident in times of crises (Arzamasov, 2019: 6). All of the above indicates the existing shortcomings of the normative legal drafting of administrative regulations, which require attention, further research and removing the existing faults. Conclusion The modern Russian state is relatively young and therefore subject to changes in both the political-economic and socio-cultural organization of society. The same statement is also relevant in relation to Russian law. Changes in the legal system of our country take place daily: new laws and by-laws are adopted, previously adopted ones are amended or supplemented and various branches of public life are developing. By October 10, 2022, 13 895 254 regulatory legal acts have been registered in the information database Regulatory Legal Acts of the Ministry of Justice of the Russian Federation, while 69 758 regulatory legal acts were adopted by federal executive authorities. The modern world is developing rapidly, and therefore the state must promptly respond to such changes by adopting quality laws and administrative regulations that specify their regulatory provisions. Currently, administrative regulations have solved only part of the goals and objectives set for them, manifesting one of the important results of the administrative reform. No doubt, there are many positive aspects: streamlining administrative procedures, systematizing the powers of federal executive authorities, eliminating duplication of their functions, and restraining officials’ discretion, but there are still certain significant difficulties to be resolved. To begin with, it should be noted that the lack of a legal definition of administrative regulations in most of the key regulatory legal acts in the analyzed sphere complicates the process of normal functioning of the entire diverse system of subordinate regulatory legal acts. The highlighted faults in the field of preparation and adoption of administrative regulations, identifying their place in the system of sources (forms) of Russian law are associated with the study of the analyzed issues within the framework of administrative law branch of science, but at the same time, administrative regulations are rarely investigated from the standpoint of the general theory of state and law. It seems that this type of sources of law should be investigated not only in the context of administrative law, but also in the theory of law, constitutional, labor and other branches of legal sciences. This approach will allow to comprehend the essence and potential of these acts, their place and role in the Russian legal system. At the same time, the existing shortcomings should not diminish the role of administrative regulations in the modern Russian legal system. These regulatory legal acts have consolidated the main types of administrative procedures, contributing to realizing the functions of government bodies at the federal, regional, and municipal levels. Peculiarities of the legal structure of administrative regulations allow to look at these regulatory legal acts as a tool to combat such an extremely negative social phenomenon as corruption.

About the authors

Varvara A. Nazaykinskaya

National Research University Higher School of Economics

Author for correspondence.
Email: vary07@bk.ru
ORCID iD: 0000-0001-8913-9903

Lecturer

bld. 3, Bolshoy Trekhsvyatitelskiy by-street, Moscow, 109028, Russian Federation

References