<<
>>

2.1. The legislative bias: concept, signs and forms of its display

the Analysis of etymology of a word "bias" (from fr. disbalance) and it before considered kategorialnogo the status in a science allows to ascertain, that it is used often enough in variety of humanitarian, natural-science and technical disciplines, designating a condition of an unbalance, roughness of any process or the phenomenon.

Thus the concept "bias" has essential non-realised methodological potential in business of resolution of problems on reflexion in jurisprudence of system conditions and unbalance processes in the Russian legislation, legal practice, a system of law of company and other state-legal phenomena.

However for creation of theoretical model of the legislative ­ bias as the high-grade legal category of such characteristics has not enough. Something is required bolshee, than simple transfer of separate ­ possible variations of the given phenomenon, namely theoretical ­ designing of certain universal patterns, revealing of the laws covering to the full all variety of forms of display ­ of the legislative bias.

With the purposes of creation of the theory of the legislative bias it is necessary to consider its basic signs.

1. Objective conditionality, in other words, dependence on the phenomena and processes of the modern social validity. The balance of set of acting standard legal certificates and legal instructions containing in them is based, first of all, on balance
adjustable public relations and on the contrary. However, as truly marks L.B.Tiunova, «in a real life formation of a legal file occurs in various concrete historical conditions under the influence of set raznonapravlennyh factors, unexpected developments and the conflicts, facing items and interests» [89] .

Investigating during the Soviet time of the contradiction in the right M.T.Bajmahanov divided them on material and formal. To the first it carried contradictions between public relations and norms of the right regulating them, to the second - between norms, and also institutes, that is contradictions in the system of law. Thus M.T.Bajmahanov explained availability of material contradictions the objective reasons (natural process of "backlog" of the right from constantly varying public relations), and formal - subjective (indicating on communication, first of all, with actions of the legislator) [90] . P.S.Dagel also allocated "evident", «laying on a surface» contradictions between separate rules of law, marking their logic character and stipulating their existence by errors

3 legislative technicians [91] .

In the previous chapter of our research it was said that the bias and the contradiction as in a general sense, and with reference to the legislation, the essence is not same. These concepts, unconditionally, among themselves connected, from the logic point of view, crossed, but not the identical. Formal contradictions in M.T.Bajmahanova's treatment (contradictions in the system of law) just also are similar under the contents to the legislative bias in that sense in which we understand it. However it after N.G.Aleksandrovym equates
formal contradictions to collisions (between separate norms, institutes) [92] while the legislative bias only is not limited to collisions. Last represent only a part, one of forms of display of the bias in system of norms of the right.

Thus, is standard-legal instability, variability and synthesising all is the legislative bias is in many respects the phenomenon compelled, "dependent" all from the same public relations. As M.T.Bajmahanov, «in the legislation writes. More strongly inertia " ïîêîÿ", stabilities, as conducts periodically to conflicts between the right and public relations». Also continues further: «the Unity and an internal coordination of a system of law are periodically undermined by changed vital conditions» [93] . L.B.Tiunova in turn marks: «the Most important precondition sistemnosti rules of law - unity and integrity of real public relations - acts on process pravoobrazovanija gradually, oposredovanno, only as a general tendency. Public relations develop in

3 integrity only in the course of long historical development » [94] .

2. Communication with object of its embodiment. So, the category name divides the phenomenon laying in its basis into an essence - the bias and attributiv - legislative, that is connected with the legislation or, in another way, shown in the legislation. Thereupon it is necessary to be defined, that we understand as the legislation.

In the scientific literature it is offered two approaches to essence ­ of the legislation: narrow and wide. Supporters of the first point of view oppose associations under the term "legislation" of all variety of standard legal certificates. So, L.B.Tiunova justifies the pozi ­
tsiju that «it undermines avtori - tet the law» [95] . It is supported by JU.A.Tikhomirov, considering, that the wide approach is justified only at deficiency, ­ nehvatkezakonov. In an opposite situation - in the conditions of sufficiency or even "abundance" of laws (which can be ascertained and now) to be reconciled, in its opinion, with it it is impossible, as «the legislation in narrow, exact sense of a word is the structured, ordered ­ system of laws» [96] .

According to O.A.Krasavchikova adhering to the second point of view, the legislation - not that other, as all set of standard forms of the right - normative statements by which certain rules of law are established or changed or cancelled. In other words, the legislation is a set of is standard-legal forms (that is, besides direct laws, decrees, decrees here concern, instructions etc.) [97] . The wide treatment meets and among contemporaries: the legislation, believe So-called Rahmanina and E.A.Jurtaeva, represents «a large-scale panorama of the certificates differing with the big variety of forms and kinds» [98] .

Within the limits of the present work as the most productive the wide approach to concept of the legislation is represented. Therefore and the legislative ­ bias is treated by us not only as inconsistency or neravnovesie laws, or their separate positions, but also as ­ razbalansirovannost and other standard legal certificates containing in them ­ of instructions.

At the heart of the contents of any standard legal certificate the norm of the right here again lays there is a question on interrelation and, accordingly,

display of the legislative bias from the point of view of it

structures. It is obvious, that concerning bias hypotheses a priori cannot be, as the hypothesis as an element of norm of the right has property of universality, that is can approach not to the unique public relation, and their as much as big quantity (keeping within, certainly, in its frameworks). Thus, the legislative bias can arise only at level of dispositions and sanctions of legal norms.

If to consider separately dispositions of norms of the right enough the situation not actually the bias is typical, and their contradictions one another. More often it concerns dispositions of the norms regulating related public relations or the different parties of the same public relations [99] . Negative consequences of the given situation consist that the request of formal consistency of the right (theoretical aspect), and secondly, first, is infringed, the subjects entering in pravootnoshenija, are compelled to choose, what norms to execute and what are not present (practical aspect). That is any norms in any case appear non-realised (though their realisation has been provided) or even the infringed.

the Described form of display of contradictions in the right in turn flows in one of forms of display of the legislative Bias - the so-called legal inflation meaning excessive density of legal regulation on a certain plot of public relations. As a back of legal inflation blanks in the right act. Both these extreme measures inherently represent versions of the quantitative legislative bias, that will be considered further more in detail.

the Bias can arise and at level of sanctions, more precisely, their combinations to dispositions of norms (for the sanction without a disposition, on well-known saying, "is senseless"). Especially clearly similar bias is shown in criminally-legal, and also is administrative-rules of law, which, on idea, should show harmony (that is balance) between act and requital. ­ Ugolovnopravovye and is administrative-legal sanctions (that is punishments) should be proportionate to degree of public danger of the act forbidden by the law. The situation is inadmissible, when less dangerous crimes (offences in administrative law) attract application of heavier sanctions and on the contrary.

For example, the obvious bias between sanctions is observed in ­ the Criminal code of the Russian Federation, in particular, between punishments for crimes against the person and a crime in economy sphere. So, equalising under the sanction (and, means, and on level of public danger) murder by mother of the newborn child and wrongful zavladenie ­ the car (for both these crimes about five years of imprisonment are provided) looks absurd­. Also not absolutely adequate and balanced the estimation is represented (proceeding besides from sanctions of concrete articles of the Criminal code ­ of the Russian Federation) the legislator of a robbery (the maximum punishment - till four years of imprisonment) as more grave crime, in comparison with ­ murder in an affect condition (a possible maximum - three years of deprivation svo - body) [100] .

3. Already on the separate researches available in a science devoted to various aspects of the considered problem, it is possible to see, that as the legislative bias understand the broadest spectrum of the negative legal phenomena, destrukturirujushchih, "loosening" right system. In other words, the general for all

the phenomena ranked as versions of the legislative bias, their negative influence, and not only on a condition of the national legislation, but also its coordination with the international legal certificates acts.

not denying negative character of influence of the legislative bias on a system of law as one of its basic signs, nevertheless, we will notice opinion expressed in the literature, that stability of the right in case of overwork exaggeration of its importance contradicts problems of development and perfection of the right, updating of a standard material and its enrichment by new norms and institutes. As marks V.M.Chhikvadze, «the idea of stability of the law should not contradict more to the general request - constant perfection of the legislation caused by objective process. Public relations» [101] . It is supported by M.T.Bajmahanov: «. It is impossible to suppose, that stability of the right has outgrown in stagnancy and conservatism» [102] .

4. Constant character. As any negative phenomenon, the legislative bias generates aspiration to its removal or at least to minimisation of scales. However to make it owing to the objective reasons not simply difficult, and it is actually impossible.

The matter is that in the general plan it is possible to name the dominating reason of the legislative bias discrepancy as a whole systems of standard legal certificates and norms containing in them to the level which has developed at a certain historical stage and a condition of development of public relations. From this point of view the bias - the phenomenon in many respects inevitable as the public life which underlies the right and legislation system, itself bears in itself whole is glad contradictions, and the is standard-legal matter reflecting her,
tries to appear in the form of consistent system [103] . In the literature not without the bases it is ascertained, that «in any system of the right there are contradictions, archaic, inefficient, not applied, out-of-date or simply abnormal norms» [104] and consequently, there is at this or that form a legislative bias. Not casually fundamental reason of instability (bias) of any legal phenomenon, including the legislation, name its incompatibility with the general laws of development in social

3

structures [105] .

do not promote achievement of balance and processes of continuous change occurring in society and developments of public relations. The legislator as far as possible tries to "be stolen" behind changes, to reflect them in standard legal certificates, to reach balance real and formal, cancelling out-of-date norms, modernising whenever possible existing and accepting new legal regulations. At such frequently an "emergency" method anyhow "suffers" already reached (certainly, rather) at the previous stage balance of system of rules of law. And then balance search already in the most standard legal material begins.

Found again legislative balance, harmony of rules of law are valid only for the concrete moment of time taken in a statics. Then the cycle inevitably repeats. «- a dislocation of balance - balance search» indicated balance this recurrence still F.Engels: "Course" of legal development ”consists generally only that the contradictions following from direct transfer of economic relations in legal principles at first try to eliminate, and to establish
a harmonious system of law, and then influence and compulsory force of the further economic development again constantly break this system and involve it in new contradictions.» [106] .

Thus, reached (besides conditional) the balance of system of rules of law in company is not absolute. pereformulirovav the given assertion and having taken for a basis a category «the legislative bias», we come to conclusion, that it just and is to constants, and not in the sense that it is invariable under the contents, and that is inevitable in the fact of the existence, is immanently inherent in the legislation, is present at it on a constant, a lasting basis.

If to go in the reasonings further it is possible to conclude, that the legislative bias by the nature is natural, while its contrast - balance - it is obvious, is artificial. Means, that for achievement last it is necessary to make certain efforts and to expend various (time, material) resources.

5. The negative influence rendered on a system of law as one of the basic signs of the legislative bias predetermines one more sign - variety of forms of display. Here there is a question on semantic ­ treatment of the term "bias" from a jurisprudence item. The bias in its first significance, namely neravnovesnosti, disproportion, is possible ­ only between one-serial, to be exact - one-patrimonial categories. The concept of the bias of this sense is not applicable to categories which basically cannot be compared among themselves. The given kind of the bias will be in detail considered further.

At the same time the bias treated from the second item as ­ inconsistency, can be present and at relations between the categories which are not one-serial, but, nevertheless, nevertheless connected among themselves. As one of forms of such legislative bias ­ the mismatch, inadequacy of the purposes and means in the right acts­.

the Concept "purpose" which has come to the right from philosophy, means «­ ideally, thinking activity the put result for the sake of which achievement those or other actions are undertaken; their ideal, internal inducing motive» [107] . At the same time the availability of the purposes in activity of the subject yet is not the warranty of its efficiency. As ideal model it (aim) it is embodied during a life by application of corresponding means.

the Essence of concept "means" consists in «. Distances between ­ the purpose and result. Means are the elastic threads adhering ­ result to the purpose, and the purpose - to result» [108] . From an item of the philosophy which besides have offered to other sciences, including to jurisprudence, concept ­ of the "means", covering themselves the conscious actions undertaken for achievement of an object in view, and also toolkit with ­ which help ­ they (actions) are carried out.

the Determinant of such bias it is covered in objective distinction ­ of the nature of the given concepts. Means including legal, are always limited by level of social development, the purpose (in our case, defined by the legislator) are ideal in the essence and will not always be co-ordinated ­ with the given level. It leads to the bias (discrepancy) in ­ relations of objects in view and the means chosen for their achievement [109] .

"warp" Variants, «displacement of accents» in such bias two. In one cases the set of possible means on the development advances definition of reference points, that is statement is more whole, that leads to partial ­ or not optimum use of available tool ­ potential. In others, on the contrary, tselepolaganie it is not based on the account of the means available. This variant is much more widespread,­ than the first, and is shown in those situations when the legislator
puts set, a little, or even one purpose which does not have the real ­ mechanism of realisation.

For example, unconditionally, the good purpose of reduction of cases of drunkenness at the wheel and, as consequence, numbers of the road and transport incidents ­ made for this reason, the legislator, according to ­ many, rather disputable means, namely, a complete interdiction of alcohol at the wheel (it is entered by the Federal law from July, 23rd, 2010 ¹ 169-FZ «About ­ modification of article 19 of the Federal law“ About safety ­ of traffic ”and a recognition become invalid for separate positions ­ of acts of the Russian Federation» [110] ) tries to reach­­­­. According to the mentioned Law for a drunken-driving the driver loses the rights for the term from ones and a half till two years. Under condition of repeated fulfilment of this ­ administrative offence of the right from the automobile owner are withdrawn for three years (item 12.8 of the Code of the Russian Federation about administrative offences). Any fines thus it is not established.

Application of so "inadequate" means has caused negative ­ reaction of automobile owners, medical workers (it is well-known, that ­ the certain percent of alcohol basically can contain in blood of the person, and also is present at such drinks as kvass and kefir which qualify as an interdiction that looks absurdly enough). Besides, such item ­ of the legislator contradicts the international norms. Thereupon in July, 2013 the Law on returning promille », establishing level of is minimum admissible contents of alcohol in blood of drivers [111] has been accepted«. Much more adequate, balanced means ­ the increase in fines provided ­ by the same Law for the above-named offence is represented­­.

Struggle against the legislative bias can be conducted at two essentially different levels: or by its primary nedopushchenija at the stage of planning pravotvorcheskoj activity, or already at its ascertaining, by means of removal or minimisation of its displays. Concerning the considered form of the bias-discrepancy between ­ the purposes and means there is its real possibility to avoid - if not ­ to abuse declaring and not to put the unattainable purposes in case of an objective lack of funds for their achievement. So, in Strategy ­ of the state antinarcotic policy of the Russian Federation till 2020 [112] by a main objective it is declared quite able to be embodied in the validity «essential reduction of illegal distribution and not medical consumption of drugs, scales of consequences of their illegal circulation for safety and health of the person, company and the state».

the Second variant of struggle against the similar bias consists in selection ­ adequate, corresponding to a concrete stage of historical development,­ achievement effective remedies already objects in view. So, for example,­ for undoubtedly important struggle against corruption [113] it is necessary not to nominate "magnificent" fines [114] , especially, considering that fact, that in ­ practice there are problems with performance of these punishments (according to ­ the Supreme Court of the Russian Federation, only 36 % of all judgements with punishment in a kind
the fine are carried out) [115] and to choose more reasonable, adequate ­ means. So, quite "tselesbalansirovannym" means ­ ratification of the Convention of the United Nations Organization against corruption sees ­(it is accepted by the resolution of General Assembly from October, 31st, 2003 ¹ 58/4) [116] in which the responsibility of the officer to prove legality of the incomes ­ spent for expensive acquisition is defined,­ and in a case when there are ­ suspicions in superficial enrichment, kontrolno-supervising ­ bodies of the state will be obliged to conduct financial investigation.

Thus, inadequacy, "nekorreljatsija" the purposes and means in the right ­ represents one of two possible versions ­ of the legislative bias who can be designated conditionally as «disbalans - inconsistency». The second base (and prevailing on frequency ­ of occurrence and distribution volumes in the Russian legislation) ­ the bias version forms model "bias-inadequacy" which ­ is applicable already to mutual relations of legal means (and other ­ one-serial legal categories). More often the such bias ­ is characteristic for "mutual relations" of pair categories: permissions and interdictions, the rights and responsibilities, stimulus and restrictions, encouragements and punishments.

So, in particular, the bias is possible between standard reflexion ­ of permissions and interdictions as methods of legal regulation. Studying of an is standard-legal material of this or that historical epoch (period­) can demonstrate us displacement of balance towards one of two methods. So, Soviet time is characterised by "warp" towards interdictions, reorganisation and postreorganization (that is modern) peri ­
odes, on the contrary, according to many scientists, differs the prevalence of permissions adjoining on permissiveness [117] .

Thus the real bias between permissions and interdictions should ­ be distinguished from the bias formal, that is the imaginary, seeming, ­ quantitative parity based on the superficial analysis ­ dozvolitelnyh and forbidding norms in the current legislation [118] . So, all ­ Especial part of the Criminal code of the Russian Federation represents as a matter of fact the collection ­ of interdictions, permissions are presented in the General part is individual. However it at all does not mean, that in criminal law there is a bias of permissions and interdictions. The bias formal it is not obligatory tozhdestven to the bias ­ substantial. In this case the formal bias between interdictions and permissions is caused by motive of economy of legislative resources ­ when legal norms regulate only exceptions, and for all other cases which are not getting to their number, the general rule is used.

in the scientific literature the corresponding name - the general permissions and the general interdictions [119] is given the Given phenomenon. Thus «external ­ obektivizatsija the general permissions and the general interdictions as specific legal ­ phenomena it is expressed at their formulation not in them, and in them to" other party ”, in them, so to say, to contrast, in exceptions of"general": the general permissions - in interdictions-exceptions, the general interdictions - in 4

permissions-exceptions » [120] .

the Balance of the rights and the responsibilities, assuming their harmony, ­ frequently designated by the term "unity" [121] , is konstituirujushchim
a principle forming communications inside pravootnosheny. However in a reality the bias (in significance of inadequacy) both in standard ­ fastening, and in the course of realisation of the given base categories, - alas, rather widespread phenomenon.

the Reason of the developed bias in considered sphere is ­ absoljutizirovanie (on the verge idolizirovanija) a postulate on "naturalness" ­ of the rights which has historically arisen as reaction of fighters for democracy on primary a return situation when the power recognised behind the population of exclusively responsibility. As a result the bowl of scales has sharply shaken in ­ an adverse party - all have started to speak about the rights, forgetting about responsibilities ­ that proceeds and on the present moment [122] .

Meanwhile naturalness of responsibilities as well as the rights, it was not denied,­ and moreover, was underlined still by great thinkers of the past. So, TSitseron named responsibilities «other end“ democratic axis ”», supplying maintenance of balance of interests in company without which it is impossible a little ordered life of people [123] . And Sh.-l. ­ Montesquieu in work «About spirit of laws» even has allocated responsibilities with the status ­ of the maximum virtue inherent in democracy [124] .

the Parity of the rights and responsibilities in the Russian legislation and practice of its application (their balance or the bias), it appears, requires ­ independent research. We are limited by frameworks of the selected ­ subjects, therefore as a bias bright example in fastening of the rights of individuals and their responsibilities we will result the Constitution of the Russian Federation. It is possible to agree ­ that the balance between the rights and responsibilities in the acting Russian ­ Constitution is considerably infringed [125] . The Organic law urged to serve
«as an example of balance various inte - resov, interfaces of the rights and responsibilities,­ harmonies of the power and the people» [126] . Nevertheless, the constitutional bias in the given question is obvious: at fastening in the text of the Organic law of set of the rights units of direct responsibilities are established only.

the Legislative bias in considered sphere can be caused ­ that the rights in the majority act directly, and responsibilities, as a rule, require a concrete definition, clarification, that is in fastening of the corresponding mechanism of their realisation established in the current legislation (laws and podzakonnyh standard legal certificates).

Displacement of balance towards increase in burden of responsibilities at all does not guarantee increase as a whole efficiency of their realisation. On the contrary, the situation characterised by mass aspiration to evasion from discharge of duties is possible. Visually it is shown by a consistent policy of the state concerning strengthening of tax load on ­ natural and legal persons (expansion of the list of taxes and quantitative growth of rates), which leads to the return (in a counterbalance planned­) to effect - to decrease in the sums of tax revenues in budgets [127] .

the Legislative bias can be shown in disproportion of density of legal regulation on various plots of public relations. Having taken last (density) for a starting point, that is criterion ­ of differentiation, it is possible to notice, that the legislative bias ­ happens both positive, and negative. Proceeding from an axiom (­ containing, the truth, a certain tautology without which, however, to manage is not obviously possible), «any public relation which is subject
to legal regulation, should right be settled», it is possible to conclude, that the legislative bias appears in two ­ opposite versions - blanks in the legislation (the negative bias) and legal inflation or redundant legislative ­ settlement (the positive bias).

Blanks in the right - a category far not new, attracted ­ attention still Platon [128] and Aristotle [129] . This category was actively investigated ­ by foreign scientists (with accent, the truth, on "besprobelnost" the rights) [130] , and 4 also representatives of the Russian pre-revolutionary legal thought [131] . In spite of the fact that the theory of blanks in the right and its substantive provisions (in their traditional understanding) were generated during the Soviet time, the given ­ category continues to represent itself as object of research modern ­ scientific - as theorists, and otraslevikov [132] .

Within the limits of a theme of our research we consider blanks ­ in the legislation. However, V.V. Lazarev, whose proceedings are in detail devoted a considered category, did a conclusion (and justified it), that, proceeding from wide understanding of the legislation (the Soviet ­ legislation in its treatment is the Soviet right), blanks in the legislation and blanks in the right is same [133] .

the Blank by its consideration from the point of view of legislation system ­ is equated to concept "absence" (rules of law), and from estimated ­ items can be characterised as "defect" that is based on "abnormality" of such absence. "Abnormality" in this case ­ is understood as that the blank can exist only concerning ­ the facts which are in sphere of legal regulation [134] . Absence of standard ­ legal certificates with reference to a blank can be complete or ­ partial. About the first there is a speech when the legislator basically has not settled ­ the isolated set of the public relations requiring ­ legal oposredovanija. The second variant is connected with defects in registration of the state will, partial its expression outside by means of norms of the right. In the right such incompleteness of the legislation ­ when the contents of norms of the right does not give the basis for the permission ­ of a certain case when neither this case is not covered by the literal text of the normative statement, nor its sense » [135] can be considered as a blank«­­. It occurs there where oposredovanie ­ the right of one vital questions with inevitability requires ­ legislative fastening of consequences such oposredovanija.

In the latter case the legislative bias is traced ­ especially clearly. The legislator, having told "and", would not speak, when it ­ really is required. The bias in fastening of the rights and responsibilities can be shown and in discrepancy of degree of accuracy and concreteness in norms, their mediating. So, in the Constitution of the Russian Federation the legislator ­ has formally enough approached to fastening of the right to passage of alternative ­ civil service. Long time in the Organic law (that more or is less justified in view of meant limitation of its volume), in the current legislation has not been defined the mechanism of its realisation. ­ The developed legislative bias has generated inconsistent practice, with
one party, characterised by mass attempts of evasion from passage of military service, and with other - actual impossibility of the citizens really interested and, moreover - requiring realisation of the right to alternative service, to use the guaranteed possibility proclaimed the state. Only in 2002 the corresponding standard legal certificate - the Federal law from July, 25th, 2002 ¹ 113-FZ «About alternative civil service» [136] , ­ the met lack which has existed about 9 years has been accepted­.

neuregulirovannost relations in any sphere leads to wide application of a regulation of corresponding relations by subordinate legislations more often. So, in sphere of the fiscal law in its formation (after an adoption of law of the Russian Federation from December, 27th, 1991 ¹ 2118-1 «About bases of tax system in the Russian Federation» [137] and before occurrence of the Tax code of the Russian Federation) existed more than 1 000 legal certificates regulating tax relations among which was only 20 laws. Falling on hierarchy of standard legal certificates, we will notice, that acted about 100 decrees of the President of the Russian Federation, 100 governmental decrees, and all other documents have been published by the various

3

departments [138] .

In other words, prevalence podzakonnyh normative statements over laws in concrete sphere of legal regulation of public relations also acts as the major (and negative in respect of realisation reguljativnogo right potential) display of the legislative bias.

At the same time balance of laws and podzakonnyh standard legal ­ certificates it is not necessary to treat odnostoronne - only and exclusively as ­ an absolute priority of the first under the relation to the second. The balance in this case is based on a recognition of the unconditional importance as laws, and under ­
lawful normotvorchestva which is directed on the decision of more private,­ but not less (and at times even more) essential problems. podzakonnye ­ standard legal certificates in right system can and should supplement, concretise,­ «to fill with a life» laws and in this case it is possible to speak about ­ balance. So, JU.A. Tikhomirov insists that «significance and scales departmental normotvorchestva require the serious analysis, and not just groundless critical estimations» [139] with what it is possible to agree as at ­ podzakonnyh normative statements there are the, major purposes which realisation ­ supplies normal functioning of separate spheres ­ of ability to live of company (transport, production, trade etc.).

However it is impossible to forget and that podzakonnye the standard legal ­ certificates accepted in excessive quantity and inadequate quality, ­ are capable and to "litter" a system of law, to do its more bulky, ­ bjurokratizirovannoj, inconsistent and in this case we speak about availability ­ of the legislative bias.

Within the limits of the given form of the bias it is necessary to mention its such version, characteristic for our recent past, as advancing, competing «ukaznoe lawmaking» which «has strongly entered into the constitutional practice of the first presidency of Russia» [140] . It consists in actual replacement, substitution of laws by decrees of the President under the pretext of the compelled filling with the head of the state of the legal vacuum formed as a result of "transition period" [141] . During the period which has begun with the edition of the Law of RSFSR from April, 24th, 1991 « About the President of RSFSR » [142] before acceptance of the acting Constitution, B.N.Yeltsin variety of the decrees substituting laws (for example,
the Decree of the President of the Russian Federation from December, 30th, 1993 ¹ 2050« About the State Emblem of the Russian Federation » [143] , the Decree of the President of the Russian Federation from December, 11th, 1993 ¹ 2127« About the National anthem of the Russian Federation » [144] ) has been published.

normotvorchestva legislative character the President of the Russian Federation has tried to give reason for Legality in the Message to Federal Meeting of 1995 [145] that the volume of planned legislative work is so great that the State Duma will yet soon satisfy requirements of practice for qualitative laws. In these conditions the President as he considers, is obliged by the standard decrees to meet legal lacks.

the Constitution of the Russian Federation has not solved a question on possibility «ukaznogo lawmaking» the President though, on idea, should make it 1993. Has supported the head of the state and the Constitutional Court of the Russian Federation, recognising as the Decree from April, 30th, 1996 ¹ 11-P [146] the given practice not contradicting the Organic law.

Investment of the President with groundless legislative powers can lead to danger of the edition of decrees not only in the absence of laws, but also in any other "necessary" case that threatens as truly notices V.V. Verstov, the bias of a system of law and infringes the constitutional principle of division of the authorities [147] . G.A.Shmavonjan is even more categorical in relation to considered practice:

«Spontaneous presidential“ ukaznoe lawmaking ”,

infringing legislature prerogatives, conceals in itself danger of an uncontrolled arbitrariness in sphere pravotvorchestva, opens ample opportunities for right detour, through belittling of a role of the law beats on bases of hierarchy of sources of the law in force and conducts to destruction of system of division of the authorities, to constitutional order infringement as a whole » [148] .

It is received, that attempt of overcoming of one of forms of the legislative bias - blanks in the right - leads to other form of the bias, namely the bias between laws and podzakonnymi legal certificates, that, of course, also extremely negatively influences development of system of the right.

If on any plot of public relations there is no legal regulation, but it is necessary, that is stipulated; in - the first, a sufficient maturity of the given public relations; in - the second, availability of objective requirement of such settlement (not only from an item of the legislator, but also on the basis of public opinion studying); thirdly, conformity to the general principles of the Russian right in this case only it is possible to speak about a blank as to one of forms of the legislative bias.

to Eliminate the legislative bias, whether it be negative or positive, it is possible only legislative by. As truly marked V.V. Lazarev, no receptions of interpretation can eliminate incompleteness of the law [149] . Blanks, as is known, can be overcome also - by means of application of analogy of the law or analogy of the right. However in these cases the legislative bias anywhere does not disappear, simply there is a makeshift of a concrete problem that does not exclude its repetition in the future. Thus the legislative method of removal of the bias should
be treated narrowly, not substituting even temporarily law podzakonnymi standard legal certificates.

As to legal inflation in the fact of acceptance of a considerable quantity of standard legal certificates with the purposes of detailed ­ regulation of the diversified public relations, including all their possible aspects, apparently, there is nothing bad. Nevertheless, we ­ speak about the legal inflation considered as the form ­ of the legislative bias, as about the negative phenomenon.

as One of versions of legal inflation acceptance of a considerable quantity of "empty", declarative and actually invalid ­ standard legal certificates acts­. The given tendency distinguished work ­ of the allied parliament as which main characteristic both in a press, and in the scientific literature consider "boom", "cascade", "highest wave" of lawmaking with ­ prevalence "deadborn" and half-forgotten subsequently laws [150] . During the period from the reorganisation beginning the considerable quantity of useless,­ unreal laws while many spheres of a life of the Russian society, objectively requiring legal settlement, have not received ­ that neither in required quantity, nor in due quality was accepted­­. V.V. Putin in the ­ first circulation to Federal Meeting of the Russian Federation in 2000 recognised existence of the sounded problem: « We pass numerous ­ laws, in advance knowing, that they are not supplied by real financing », naming similar practice by" the state lie » [151] .

not casually considered form of the legislative bias is named by us legal inflation. The main thing in concept of inflation, whether it be legal or any other, - the depreciation caused by overflow ­ by something of sphere, in it not requiring. Concerning the legislation acceptance of standard legal certificates, obviously impracticable, in is private ­
sti, not counting upon real a cart - action on public relations,­ and with the purposes of removal of social pressure, with inevitability conducts to depreciation of the right in the opinion of the population, to distribution and aggravation of legal nihilism. Meanwhile, according to the former Chairman Sankt - V.Poludnjakova's Petersburg city court, «the laws which have been not supported financially, at first cause expectation, then disappointment, then a rage to the power» [152] . N.I.Matuzov quite pertinently quotes ancient saying: «In the most spoilt state the greatest quantity of laws» [153] .

Legal inflation can be shown in creation of plurality ­ of the standard legal certificates regulating concrete, sometimes very narrow, area of public relations. The negative estimation of the given form of the legislative bias is connected with that fact, that similar practice infringes a principle of economy of legal means in legislative process. In some cases there is no necessity to pass the separate law ­ to settle those or other relations, it is possible to be limited to modification ­ of already accepted standard legal certificates, preventing thereby danger of occurrence of legislative "jams". The aforementioned principle is contradicted also by practice of detailed interpretation in standard ­ legal certificates of well-known concepts and the terms which are not requiring a detailed explanation [154] .

As a result of legal inflation there is "congestion" of the legislation various terms that gives the chance to speak about existence of the structural bias in the contents of standard legal ­ certificates. As an example it is possible to result item 268 of the Arbitration ­ remedial code of the Russian Federation «Limits of a legal investigation arbitration court appeal instance», in ch. 1 which following position contains­: « At a legal investigation as appeal production arbit ­
razhnyj the court on available and dopol - nitelno to the presented ­ proofs repeatedly considers case ». Further in ch. 2 given articles are noticed,­ that« additional proofs starting arbitration court of appeal instance if the person participating in business, has justified ­ impossibility of their submission in a court of first instance for the reasons ­ which are not dependent on it including in case the court of first instance had been rejected the petition about istrebovanii proofs and the court recognises these reasons valid ».

Considering the given norm from the point of view of conformity to rules and requests of legal engineering, it is possible to ascertain, that it ­"is bulky enough and unduly complicated, as contains some obligatory elements of estimated character, but does not equate to each other concept« the reasons which are not dependent »and"good reasons" [155] . In this case it is possible to speak about the bias of legislative terminology­.

Legal inflation also can accept one of following two negative forms: or existence of the several norms regulating ­ the same question, leads to the direct contradiction between them (that is collisions), or the right "interferes" in sphere, to it not subject and not requiring legal regulation. Both the first, and the second extremely is not desirable for legal regulation.

Obshcherasprostranennaja the treatment consists that the semantic nucleus of a phenomenon of a legal collision consists in concept "contradiction" [156] . N.I.Matuzov adds in the definition the term "divergence" [157] , N.A.Vlasenko uses in addition also concept "distinction" [158] , with it salts ­
daren and I.N.Senjakin [159] . To in that, the contradiction (distinction, a divergence) between what it is possible to consider a question as a legal collision?

More often the legal collision represents the contradiction between two or more norms of the right (complexes of norms). However N.I.Matuzov besides offers the expanded treatment of sense of considered ­ concept, including in the contents of a legal collision, besides contradictions between norms of the right, also the contradictions arising in process pravoprimenenija and realisation of the authorities ­ by the state bodies and officials [160] . R.A.Goncharov considers legal collisions as formal contradictions (distinction) between two and more legal phenomena within the limits of the objective right (between structural elements of norms of the right, between standard legal ­ certificates and other sources of the right, interpretation certificates, and also between ­ elements of a national system of law and various legal siste -

3

mami the world [161] .

Danger of legal inflation from a considered item ­ is caused by that a considerable quantity of already accepted declarative norms, their discrepancy give the chance for an arbitrariness and any ­ choice, inadmissible in such sphere as the law. The President of the Russian Federation spoke about it in 2001: «We practically stand at a dangerous boundary when the judge or other pravoprimenitel can ­ choose at sole discretion ­ norm which seems to it to the most comprehensible» [162] .

the Core from conditions of overcoming of the legislative bias consists that at modification in acting, but out-of-date rules of law and acceptance new the legislator should
try to find balance not at the expense of deviation from requests of exact conformity to their present public relations, and by means of operative entering of additional changes into the legal certificates mismatching developed conditions and contradicting updated legal certificates.

With allowance for stated allocation of following versions of a phenomenon of legal inflation in the legislation is represented reasonable:

excessive plurality of the standard legal certificates regulating concrete, sometimes very narrow, area of public relations by means of overwork specialisation of the legislation;

collisions in the contents of the separate regulatory legal act between its norms owing to redundancy or discrepancy of a legal regulation of public relations;

the availability is standard-legal regulations, the social communications directed on legal streamlining which objectively are not requiring legal effect.

the Indicated three principal views of legal inflation also act as the real, tangible form of display of the "positive" legislative bias. However hardly pertinently to identify such defects of the legislation, as collisions, unasked and redundant normativnopravovaja ­ a regulation of public relations, with concept «the legislative bias».

the carried out preliminary short analysis of a question on legal inflation as to the form of display of the legislative bias testifies, in our opinion, to necessity of more steadfast attention to it from researchers. For the present moment in the legal literature we can find out only separate
statements or small sketches to a problem [163] . It not nastol is simple, especially in view of indefatigable in the intensity of rate of transformation of the Russian legislation, its inadequate level sistemnosti in separate parts and subsystems and can be decided only thanks to a number of complex special researches.

we Will dare to offer on court of the reader definition of legal inflation for continuation in the future of purposeful studying of a phenomenon reflected in it: legal inflation is one of forms of display of the legislative bias concerning disproportion of density of legal regulation in various areas of the social sphere, including such defects of the legislation, as collisions, redundancy standard-legal regulations, excessive plurality of standard legal certificates, their overwork specialisation.

summing up, we will give an initial general-theoretical definition of the phenomenon razbalansirovannosti in system of standard legal certificates.

the Legislative bias represents objectively caused, determined by level and the social development conditions, the dynamical process immanently inherent in the legislation expressed or in inconsistency, discrepancy forming its structure and the contents of elements (subsystems) or in neravnovesii, inadequacy of means used by it, and also in a disproportion between tendencies of the legislation to stability and aspiration to stability, specialisation and unification of an is standard-legal matter, in each of the transferred cases creating obstacles in legal settlement of public relations, that in aggregate at achievement of critical significances by it neravnovesija in the legislation
essentially reduces potential of forward development of all system of law.

Separate defects of the legislation in a statics (collisions, standard-legal regulations, etc.) characterise redundancy its level razbalansirovannosti, are by the nature a bias consequence in its system, serve as a warning signal for researchers and lawyers-experts about availability of the legislative bias. However the relationship of cause and effect in this case has bilateral, raznonapravlennyj character. In turn accumulated in system of regulatory legal acts defects on chain reaction can introduce a problem razbalansirovannosti legislations to more difficult level, transforming the bias, for example, from intrabranch in the interbranch.

2.2.

<< | >>
A source: Belousov Sergey Aleksandrovich. the LEGISLATIVE BIAS (the doctrine, the theory, practice). The dissertation on competition of a scientific degree of the doctor of jurisprudence. Saratov - 2015. 2015

More on topic 2.1. The legislative bias: concept, signs and forms of its display:

  1. the Bias in a system of law: concept and a parity with the legislative bias
  2. Conceptual forms otrazhe - nija the legislative bias
  3. Levels of the legislative bias
  4. Certificates of interpretation of courts as means of overcoming of the legislative bias
  5. CHAPTER 4. The LEGISLATIVE BIAS In the MECHANISM of LEGAL REGULATION
  6. the Legislative bias and pravotvorchestvo: negative displays and tehniko-legal methods of their removal
  7. chapter 1. METHODOLOGICAL BASES of RESEARCH ­ of the PHENOMENON the LEGISLATIVE BIAS
  8. Chapter 3. Diminished responsibility. Concept,criteria, signs, forms of diseases.
  9. the Legislative bias and pravorealizatsionnaja practice: problems of quality of the law and efficiency of its application
  10. CHAPTER 2. GENERAL-THEORETICAL MODEL of the LEGISLATIVE BIAS: INITIAL EXPERIENCE OF FORMATION
  11. Forms of display of time in solovevskoj pentalogii
  12. 1.4 Signs of display of properties of hydrophily and hydrophoby by working out of the petrosated layers
  13. 5. Forms of an individualization of the legal person as external display of its organizational unity
  14. 4.3.4 Signs of display of properties of wettability of collectors on change of an oil recovery and obvodnenosti chinks
  15. the Analysis of the basic forms of display of extremism through a prism of modern international law
  16. Belousov Sergey Aleksandrovich. the LEGISLATIVE BIAS (the doctrine, the theory, practice). The dissertation on competition of a scientific degree of the doctor of jurisprudence. Saratov - 2015, 2015
  17. § 1. Essence, concept, the basic signs, kinds and legal forms of expression of estimated categories in the criminally-executive right. Estimated categories, atypical legal instructions and blanketnye norms
  18. exchange bias. Anisotropy of magnetic properties of thin-film structures with exchange bias
  19. CHAPTER 1. HISTORICAL, SOCIAL AND CONCEPTUAL PRECONDITIONS OF STRUGGLE AGAINST EXTREMISM AND THE BASIC FORMS OF ITS DISPLAY: THE INTERNATIONAL LEGAL ANALYSIS
  20. Forms of display of inflation. Open inflation. A rise in prices.