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§ 3. The comparative analysis of legal nature of consolidated laws of the USA and various kinds of ordering in frameworks Continental law families

Comparison of essence and mechanisms of formation of codes of laws and the departmental normative acts created and supported in the USA, with ordering of the legislation and codes of the countries of the continental law is represented, that, allows to specify sense of such concepts as "code" and "codification", to understand as they correspond, more precisely to understand what normative act it is possible to name the code, for example, in Russian pravotvorcheskoj to practice.

First of all, we will consider that there is "code" in the American jurisprudence and will correlate the investigated American codes and European, and also the Russian codes.

The term “code” in a translation into Russian can designate not only actually "code" as the act containing rules of law of any branch of law and systematised by processing of the current legislation, but also a simple set (arch) corrected or principles of behaviour, norms of morals [312].

As writes prof. U.Tress, the term “code” in the American treatment is applicable almost to any ordered meeting of legislative or departmental certificates. Thus unlike the European codes, the Code of laws of the USA, the Code of normative acts of the USA and consolidated laws of states similar to them in many respects grow out of very long process of ordering consisting in processing of set of statutes or in acceptance of these codes by parts different in size at various times [313].

The prof. of J. P.Fletcher, has noticed, that the word “code” is often used for a designation of the big statutes, such as the Internal tax code (section 26 United States Code). Many sections of the Code of laws of the USA at first sight represent as though codes in the code, however, according to the same scientist, it not codes in «the European sense», and some kind of the complicated statutes [314].

This point of view, however, is too categorical. So, the prof.

A. T.Fon Is measured, mentioning the same Internal tax code, allocates it as an exception in the sense that the majority of the American codes do not possess that sequence and completeness what the European codes have, and do not give a starting point for the decision of any legal issue, whereas in the federal fiscal law of the USA the law is primary (in relation to precedents) the source of law [315].

For the decision of any legal issue in the American code it is possible to present absence of a starting point that circumstance, that under the general rule the lawyer of the continental law will begin studying of a legal issue with the reference to the code, and the lawyer of a general law - to base of precedents on similar affairs [316].

Speaking about character of ordering within the limits of American codes,

B. I.Lafitsky has noticed, that they differ from the European samples as in bolshej parts fix already operating rules of law, for them lack of general rules is characteristic, «the structure of these codes is to a lesser degree subordinated to problems and logic of standard generalisation». However in this case it was a question of attempts of creation of separate codes (civil, criminal, trading, etc.). Therefore here, V.I.Lafitsky separately allocates «the reviewed consolidated laws» as other form of ordering of the legislation in which frameworks acts join in the arches without changes and settle down on sections.

Thus, in this case speech already goes about the arches of statutes of states considered in the previous paragraph [317 [318].

However, as shows the present research, to allocate any other form of ordering of the legislation in this case it is not meaningful. If the standard legal act joins in the arch (code) without change of its text or is exposed to editorial processing not the representative for the edition of the given normative act body it is covered by incorporation. If at normative act inclusion in the arch (code) processing of such certificate is carried out by the representative for its edition body it is codification. Besides, from Table 8 resulted in the previous paragraph, also it is visible, that only in some states the arches have the name of "the reviewed statutes».

The French legal doctrine in the name of R.David and R.Kabrijaka considers United States Code and other consolidated laws as «not

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Codes in the French sense of a word ». The code of laws of the USA, no less than all other consolidated laws, are considered by the given jurists as the compilations built in alphabetic order classifying and ordering sources of the American right, regulating certain spheres [319].

It is represented, that in this point of view there is an excessive simplification of legal nature of the arches of legislative and departmental normative acts in the USA.

First, as it has been considered in the previous paragraph, process of acceptance of sections United States Code in a kind positive law titles assumes not only change of formulations, but also essential processing of the maintenance of statutes, construction of new structure of codified normative acts, evolution (moving) of structural units, inclusion of new structural units, removal become outdated, etc. Such pravotvorcheskaja activity has all signs of the codification understood in the same sense in what it exists in domestic legal science with reference to codes of the European type.

Secondly, structure United States Code has no mainly alphabetic character. Really, many base sections of consolidated laws are located in alphabetic order (Tables 6 and 7). At the same time, both in United States Code, and in Code of Federal Regulations, there is a section I - the "General provisions", following five sections concern the most important state questions, and the sequence of these first sections (taking into account names) is given not in alphabetic order.

Moreover, each section contains set of structural units which are arranged rather with difficulty: there are structural units (different level), named "General provisions" (with reference to sections, heads, parts, etc.), the standard material in structural units can settle down as in alphabetic order [320] (if other order is not required), and in other, caused by logic of a statement, an order (for example, structural units are built as the description of stages of procedure) [321].

Certainly, the maintenance of codes of laws and departmental legal acts corresponds stated above a position that these arches usually do not serve starting exact for search of the decision of a legal question. However juridiko-technically they represent results of incorporation and codification in the same sense, as the European or Russian codes.

It is possible to tell, that the result of codification in the USA possesses the specificity, consisting that in bolshej parts are not inherent in this result completeness (completeness), and primacy (in the ratio with precedent) as source of law. In bolshej parts because as it has been considered above, are regulation spheres where the law nevertheless takes a priority place among sources of law.

However more prominent aspects in comparison of the arches of standard legal acts of the USA to the European or Russian codes consist not in that, how much given sources of law are not similar, and that there is the general between analyzed systems and that from the American experience can be used, in particular, in Russian pravotvorcheskoj to practice.

So, officially established short names of the standard legal acts meeting in the American lawmaking are rather interesting from this point of view. It is enough to imagine, that official fastening of abbreviations of names of codes (agrarian and industrial complex of the Russian Federation, GK the Russian Federation, TK the Russian Federation, etc.) and other federal acts would allow lawyers and other users more freely to use these short names in all diplomas and would not cause ambiguities or distortions of names in oral speech.

Inclusion in the standard legal act of the maintenance (table of contents) in first or second article as it becomes in the American statutes, would give possibility in more convenient image to use official sources of publication, such as «the Official Internet portal of the legal information» (www.pravo.gov.ru) [322], and also paper (raspechatannye) texts big on volume (kodifitsirovannyh) normative acts.

As it has already been told, in United States Code (in general provisions of this code of laws) it is possible to find out fastening separate juridiko - the technical rules, concerning the legislative technics, and also the definitions extending the action on all laws. With reference to it it is possible to tell the following.

Fastening of definitions and rules of the use of the terms extending the action on all legislation, allows to reach qualitative uniformity in realisation of rules of law [323 [324]. Importance of a correct choice of a place for placing of definitions in the text of the standard legal

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The certificate as it is represented, it is obvious. In itself removal of definitions in separate articles simplifies the text of the code or other normative act in comparison with a statement of a definition in any article. The similar approach corresponds to idea of the Russian jurists that in legislation system there should be a uniformity of concepts, the jural significance should not be belittled by a definition, and the choice of a place for definitions in the normative act should not cause complexities at their detection and interpretation [325].

Many jurists notice, that in Russia it is necessary to settle pravotvorcheskuju activity, in particular by means of an adoption of law on standard legal acts [326]. The draught federal law dismissed by the State Duma «On standard legal acts of the Russian Federation» the standard positions similar considered in present work (what maintenance of article of the law as those or other terms in all laws, etc. should be understood should be.), did not contain [327].

Besides, its ordering is necessary for normal development of the legislation, and for ordering adjustment by the major condition standard fastening of rules of legal technics is, in which it is possible to include regulation of the process of ordering (principles, an order, characteristics of the systematised certificates, the rights and duties of participants of process of ordering), in particular by means of an adoption of law on standard legal acts [328].

Hence, by preparation of the new draught federal law on standard legal acts in it it is expedient to include articles with the definitions applied in other laws, rules how those or other turns of speech should be understood in normative acts, additional norms about action of normative acts in time and on a circle of persons, and also other requirements considered in the present work to registration of laws and other standard legal acts.

To use those or other receptions from listed above it is possible also by working out of any other standard legal acts and at fastening of rules of legal technics in standard legal acts of subjects of the Russian Federation.

Certainly, that thus it is necessary to start with the reasonable use of foreign samples. So, it appears, that it is not necessary to adopt from considered above foreign experience structurization of laws and numbering of articles as in the Russian legislation there were other approaches to the given question, and the American analogue in this case is not better Russian. However it is important to provide unification of numbering and to exclude presence cases in normative acts of not numbered paragraphs.

Also use of definitions is preferable to the domestic legislation only in relation to the concepts having key character or special requirement for an explanation [329 [330] [331], instead of to absolute to all terms meeting in this or that standard legal act;

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Compactness, laconicism of a statement are required. Besides, as it has already been told, meanwhile rather kept away from the present time it is represented

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Creation possibility of "the code of codes», consolidating the majority of laws in the uniform document with difficult structure.

As to detailed elaboration of laws the idea of prof. V.V. in this respect is represented to more reasonable. Lazareva about necessity of observance of a measure for construction of legislative instructions, not a text heap there where it it is not required [332]. Thus erroneous will be not only bulky casuistry, but also excessive generalisation [333].

Separate attention the question on ordering, to be exact about codification deserves, departmental standard legal acts. In maintenance of stability of a social and economic situation in the Russian Federation departmental normative acts play not a smaller role, than acts [334]. If codification of departmental normative acts is spent to the USA by creation uniform «the code of codes» these certificates that it is possible to use from this American experience in codification of the subordinate legislation in Russia?

In the educational legal literature, as a rule, when it is a question of codification, the basic attention is given to codification of acts [335]. There is also such position which denies codification of departmental normative acts. In particular, prof. V.V. Oksamytnyj, has noted disputable character such «the broad approach» to codification, has expressed opinion that distribution of concept of codification on the subordinate legislation rather conditionally [336]. Quite often code is defined exclusively as the law, taking to the person a place among other certificates [337 [338]. However on an example of the American experience it is visible, that the concept of codification covers itself not only ordering of laws, but also other standard legal acts.

The uniform arches of the subordinate legislation, like American, in Russia does not exist and as it is thought, possibilities of their creation in immediate prospects it is not expected. Nevertheless codification of subordinate legislation normative acts is carried out (both on federal, and on regional levels) by means of acceptance of the developed and big documents on volume: instructions, positions, usages, rules, regulations,

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Charters.

It is characteristic, that some departmental standard legal acts are called recently as "codes" [339]. These certificates basically are connected with regulation of rules of behaviour (ethics) of civil servants and other categories of workers. Work under the statement of codes of ethics in all federal public authorities, and also in all public authorities of subjects of the Russian Federation has been begun in 2011. To the basic questions which are regulated by the given codes, concern: office behaviour, observance by employees of restrictions and interdictions, prevention of the conflict of interests.

However the term "code" with reference to the name of the given sort of the document approved by the order of this or that ministry (department), is used (from the point of view of the "European" understanding) rather conditionally as the ethics code inherently does not grow out of codification. In these codes of a rule of behaviour are formulated too abstractly, in the majority are copied from federal acts, and, thus, do not formulate rules of behaviour clear and serving by the daily guide to action with that degree of completeness and integrity which is inherent kodifitsirovannym in certificates.

Thereupon it is necessary to note some tendency in law-making and in terminology use in names of documents. As the state is a question of standard legal acts, by means of the edition of the codes approved by departmental orders (taking into account absence of the law on standard legal acts), modifies concept of "code", leading to its American analogue, that is naming "code" the document which is not growing out of codification a little.

In most this tendency, possibly, it is not seen special negative consequences. Thus from the point of view of theory of law, apparently, it will be necessary to specify concept of "code" through any time. If such tendency is continued, in the future under "code" it will be valid to be understood not the code of the European sample, and almost any normative act, which or has considerable volume, or (irrespective of volume) contains the arch corrected behaviour for a certain category of persons, without dependence from that kodifitsirovannym or incorporated the given normative act is.

Hence, the considered American experience of codification of departmental certificates allows to say about possibility of codification of the standard legal acts which are not laws that allows to specify concept of "codification" with confidence. Taking into account stated, codification includes not only creation of the act, the code (as it has been considered above the code - not always result of codification), but also carried out by the representative on the edition of the normative act body process of "assemblage" of the difficult or volume standard legal act of any level (the law, the subordinate legislation certificate) with processing of positions of the created certificate, creation of new standard positions, evolution or construction of its new structure.

As approves prof. M.N.Marchenko, in the USA the concept of "codification" a little than differs from its understanding accepted in other legal семьях1. It is thought, that the given statement more approaches for the characteristic not understanding or concept of "codification", and the practice of ordering of the legislation of the USA. Comparison of practice of ordering in the USA and in the continental law countries has allowed to involve a wide layer of a standard material and to make generalisations for theory of law taking into account this foreign experience.

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A source: Vankov Alexander Vasilevich. the Statute law and standard legal acts of an executive branch US authorities: legal nature and ordering. The dissertation on competition of a scientific degree of the master of laws. Perm - 2018. 2018

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