.
This article was written during my stay at Case Western Reserve University. I thank Professor Ronald Coffey for the cooperation on this matter.
During the transition process Russia needs to rebuild its legal system virtually from the ground up. The transition period has been marked by numerous laws issued by various branches of government. Indeed, legal realities in our country keep changing at a tremendous speed.
At the same time as a result of 70-year period of administrative government, when legal regulations were often kept secret, Russia was lacking mechanisms or channels for fast and effective dissemination of legal data. At least the exisiting mechanisms were not suitable for free enterpreneurship.
To meet the need for timely receipt of recent information new russian businesses actively use computerised legal information systems and other electronic information sources that are described in this paper.
On its way to a free market economy and a democratic government, Russia needs to rebuild its legal system virtually from the ground up. The transition period has been marked by numerous laws issued by various branches of government. Indeed, legal realities in our country keep changing at a tremendous speed. The federal government abolishes old prohibitions and introduces new rules every day. An estimated 10,000 legal acts are adopted on the federal level every year. In this situation, ignorance of recent legislation is likely to force firms out of business. The legal practitioner who relies on a year-old statute may find himself involved in a malpractice suit.
Of course, such an unstable situation is not the best environment for young Russian businesses, but we must take it as a given. It is how things are done in Russia, and arguably the fundamental reconstruction of the whole economic system in our country could not occur any other way. In the survey conducted by The Heritage Foundation using the "Index Of Economic Freedom"1 Russia was ranked was 73rd out of 101 regions graded in order from the most economically free to least economically free2 . The country appeared to be among "mostly unfree" states due to political and legislative unstability. However, local entrepreneurs de facto do not have freedom of choice when determining the place for their activity. All they can do is try to cope with the changing legal reality. Great risks often promise high benefits, - many of the "new Russians" that have begun from scratch have acquired, in these first years of free entrepreneurship, millions of dollars of capital.3
The demand for these types of services was met by new commercial systems. As a matter of fact, most of the successfully marketed legal information systems that are reviewed in this paper were developed and are offered by commercial businesses. Some government agencies maintain legal databases too, but their services generally are not offered for sale. The notable exception is the "Etalon" database, developed by the Scientific Center for Legal Information of the Justice Ministry of Russia. Because all legal information originates in government institutions, these governmental systems, intended for the internal use, have the most recent and accurate information. Other institutions prefer to use the commercial services. For example, the St. Petersburg Mayor's Office appointed maloe predpriyatie4 "Centr Komputernykh Rasrabotok" to be a depository ("databank" is the language of the order) of local laws and charged it with the duty to supply legal information to divisions of the Mayor's office and district administrations using the commercial legal information system, "Kodeks," developed by this firm (Mayor's Order N 18-p, dated 12 January 1994, "O banke dannykh pravovoi infomatcii merii Sankt-Peterburga"). Similar arrangements were made by the Moscow City government with the developers of the "Garant" and "USIS" databases.
Access to Russian documents may be useful not only for businessmen operating in our country but also for Western attorneys and law professors. The following text will contain a brief description of different providers of computer accessible legal information and their products. Arguably, to get a full understanding of the Russian law you should be able to read in Russian. Unfortunately, at present the translations of Russian laws that are offered by Lexis and Westlaw as well as Russian commercial legal information services are not accurate enough to use as a sole source. Although the leader of this market, "Garant," has a vast and expensive database including over 2,2005 translated items ("Kodeks" offers a substantially cheaper database that comprises only 500 basic items), you had better always keep one eye on the original Russian text.
Today there are more than 40 providers of computerized legal information services in Russia, but 4 main competitors in the market for stand-alone systems far overshadow the others in terms of volume of sales and amount of information offered to customers. The leaders are: "Garant" (developed by the firm "Garant-Service"), "Kodeks" ("Centr Komputernykh Rasrabotok"), "Consultant Plus" ("Vychislitelnaya Matematika i Informatika"), and "USIS" ("Juridicheskoe agenstvo 'Intralex'"). Developers of all of these systems except Kodeks are located in Moscow. The developers of the Kodeks database are in St. Petersburg and have a strong influence upon the market of these products in the Northwest region of Russia.
A unique feature of the Russian market for computerized legal information services is a strong reliance upon stand-alone systems as opposed to on-line systems like Lexis and Westlaw. This is due to two primary factors: weak development of a telecommunications infrastructure (even regular voice phone lines are in a short supply and are of poor quality) and a smaller (compared to western countries) volume of laws (our legal history is at its very beginning and the legislature is still unable to overwhelm hard drive capacity). The user of these stand-alone systems must be ready to pay from 300 up to 3,000 dollars for installation of such a system, depending on his particular needs (this payment ensures supplementation with new documents at low - about 15 dollars for one supplement - subscription prices). It is worth mentioning that no system can be regarded as a comprehensive and exhaustive source of legal information. Smaller customers with limited funds must choose the system that suits their needs best, while larger law firms prefer to have several systems. These firms gain an opportunity to use, for a specific type of legal research, the product that accomplishes the task best. They also have access to a greater number of legal documents.
To meet the need for timely receipt of recent information, developers of most legal databases provide periodic supplements to their data that are called "updates." Some of them (USIS, and Garant) are switching now from weekly to daily updates. Use of telecommunications facilities proved to be more economically efficient for same-day delivery of new data. All of the major database service providers operate direct dial-in bulletin board systems and offer sending of updates through e-mail as an alternative. The user must be ready to pay an applicable e-mail service provider charges (3-4 dollars) in addition to the regular price for each update transferred by e-mail.
Another important characteristic of these services is the period of time between issuance of the official document and the delivery of the document to the customer. Time is required to transfer the information, process it in accordance with system structure, and deliver it to customers. Usually this delay is about 10-14 days. Sometimes users of such systems receive the document even before it is officially published.
At this point, an unusual concept used to build the legal information retrieval system Consultant Plus should be noted. I will call it the "remote database concept." The user of this system may have only a cardfile of laws on his computer, while full texts are stored in the database on a remote server. The user can search through the cardfile, which is regularly updated. As soon as he needs the full text of a specific document, the shell will automatically request this text from the remote database using built-in tools. These requests and the results thereof are sent through the e-mail network or via direct modem connection (the user is billed for this operation). Lower expense (the user pays only for texts of the documents he actually needs) and less use of hard drive space make this system attractive for businesses with limited funds. On the other hand, if the user chooses, he can buy the entire set of documents at any time, thus becoming an independent owner of a stand-alone database. At present, Consultant Plus has over 210 regional centers that serve requests of users and handle full-text database.
And there are other opportunities. The menu is not limited to the stand-alone databases. Other computerized legal sources include newsletters distributed to subscribers as e-mail messages. For instance, weekly expedited information about legislation is distributed by "Dom juridicheskoi informatcii Justicinform" (they also have a printed publication, "Pravo i economica"), which includes the full texts of new laws and reviews prepared by lawyers. There is also an electronic edition of "Economica i Zhizn," a weekly that is recognized by Russian businessmen to be the most reliable source of economic and legal information on all business-related matters. Some services offer modem access to on-line legal databases; for example, a Moscow company, "Infonet," provides daily updates to its gopher-type service that offers legal documents. Users can reach this service by dialing local numbers in many regional centers.
In producing their services, all private suppliers of legal information rely on special agreements with official bodies and official publications. The new Constitution of Russia provides that unpublished new laws shall not be applied6 . On the federal level, publication was regulated by the Decree of the President No. 662, dated 6 April 1994: "On the procedure for publication and effective date of federal laws." The daily newspaper, "Rossiiskaya Gazeta," and the weekly "Sobranie Zakonodatelstva Rossiiskoi Federatcii" are specified as the official sources for the publication of laws adopted by the Parliament, Decrees and Orders of the President and the Government and the decisions of the Constitutional Court. If the statute itself does not contain an effective date, it will become effective within 10 days after publication in an official source. The Decree was later vacated by the Law of Russian Federation No. 5-fz, dated 14 June 1994, which contained, however, essentially the same provisions7 .
Rules and regulations adopted by administrative agencies and other lower executive bodies are published in the daily newspaper "Rossiiskie Vesti."
Other printed publications of law-related information include the weekly, "Economica i Zhizn," which has a CD-ROM archive of back issues. Judicial decisions may be found in "Bulletin Verhovnogo Suda RF" and "Vestnik Vysshego Arbitrahnogo Suda." Rules, regulations, and orders of ministries are published in "Bulletin Normativnykh Aktov Ministerstv i Vedomstv." The monthly electronic journal, "Delo i Pravo," publishes many commentaries and provides good coverage of taxation regulations.
Regarding this entire range of sources of legal information, it is necessary to understand the foundation upon which all legal information systems are built, and so we take a quick look on the types of primary legal sources existing in Russian legal system. Like most continental law systems, ours is based upon a Code mentality. Court decisions do not play as important a role as they do with respect to law-making (as contrasted with judicial interpretation) in common law systems, and lower court opinions usually are not handled by legal information services8 . The only exceptions are the decisions of the country's higher judicial bodies-the Constitutional Court, Vyshshii Arbitrazhniy Sud (Supreme Court Of Business Claims) 9 , and Verhovniy Sud (the Supreme Court of general jurisdiction)-that take the form of Postanovlenie Plenuma 10 (Opinions) or Rukovodyaschee Razyasnenie (Authoritative Explanation). There is also a practice of communication to the lower courts of the letters containing Review of Court Decisions. These decisions have all the attributes of usual legislative and regulatory materials for purposes of data search and can be easily accessed using the existing search mechanisms of the respective legal information retrieval systems. All four major systems include the decisions of the Supreme Court Of Business Claims and the Supreme Court (of General Jurisdiction) of Russia, but the coverage is selective and thus not comprehensive. Sometimes you can find in one system a certain decision of a judicial body that is not included in the other.
The mentioned forms of Court decisions - Postanovlenie Plenuma (Opinions) do not resolve the particular legal dispute. They are rather explanatory rulings that based on the analysis of previous court practice and relevant statutes. The judicial opinions on the actual cases are published irregularly and are used rather to explain the proper judicial interpretation of the statutory provision rather than to be used as the controlling authority (precedent) in the subsequent cases.
Judges usually follow the guidelines set by the explanatory rulings of the Supreme Court, but they are not legally obliged to do so. On the contrary, according to the Art.30 Law On The Court Of Business Claims (July 4, 1991) judges of all courts of this system are obliged to follow the explanatory rulings carried out by the Plenum of the Vyshshii Arbitrazhniy Sud (Supreme Court Of Business Claims).
Judicial system. Russia do not have two separate systems of federal and regional courts so far. All the courts are the parts of the single system. The situation may be changed by the federal constitutional law "On the Justice System of Russian Federation".
.
The Constitution is the primary source of law in Russia. It has supreme legal force and effect and is applicable throughout the entire territory of the Russian Federation. No laws adopted by the Russian Federation may contravene the Constitution of the Russian Federation.
Two types of legislation are enacted by the Parliament: federal laws and federal constitutional laws, which are the second most important sources of law. Between the latter, federal constitutional laws take precedence.
The procedure for adopting the law is set in the Art 104-108 of the Constitution. Federal Constitutional Laws are adopted in accordance with the procedure set in the Art. 108 of the Constitution (it must be approved by a majority of the votes of at least three-quarters of the total number of members of the Federation Council and at least two-thirds of the total number of deputies of the State Duma. A federal constitutional law that has been adopted is to be signed by the president of the Russian Federation and promulgated within 14 days) on the most important matters, including:
Acts of executive bodies must conform to the legislation.There are several types of federal executive bodies: Ministry, State Committee, Committee, Federal Service, Federal Agency and Federal Inspection. They are created by the President in accordance with the Decree of the President: "On the System of the Federal Bodies of the Executive Power" of September 30, 1992 N 1147.. The most important bodies of federal executive power that issue a significant volume of regulatory legal acts today are: Central Bank of Russian Federation (currency regulation and bank legislation), State Customs Committee of Russian Federation(external economic operations), State Committee for the Administration of State Property(privatization), and State Taxation Service.
Software used for stand-alone databases allows retrieval of documents that satisfy certain formal requirements: usually search criteria such as date and number of the item, type of item and t he authority that issued it, and printed publication reference. Words appearing in the title of the document can be combined by Boolean search operators such as "AND" and "OR." All systems allow the retrieval, using Boolean search rules, of documents that contain specified words not only in the title but also in the text of the document, but in some systems (especially USIS) full text searches work slowly.
The developers of the databases have included in their software a feature that allows assignment of specified "keywords" or "topics" to the documents. These keywords are assigned by legal experts to every document in the database, and each document may have more than one keyword associated with it. In most systems, search by topic can be combined with other criteria. Nevertheless, cautious use of these keywords is recommended; relying too heavily on them may cause you to miss important sources.
Many systems provide switching between related documents (a kind of "shepardizing" statutes). Thus, you may easily find which government rules, regulations, or orders were issued to implement the provisions of the law and which actions other executive agencies have taken to enforce it, or, vice versa, which enabling legislation empowered the executive agency to issue a piece of delegated regulation. Some systems (Kodeks, USIS, and Garant) include not only laws but also comments and reviews prepared by professional lawyers. It makes them a comprehensive tool for legal research in Russian law.
It should be mentioned that not all legislation is adopted at the federal level. Article 76.4. of the Constitution provides that, outside of the jurisdiction of the Russian Federation and the joint jurisdiction of the Russian Federation and the governmental subunits of the Russian Federation, the republics, territories, regions, federal cities, autonomous, regions and autonomous areas shall establish their own legal regimes, including the adoption of legislation and other regulations.
Though the jurisdiction of the Russian Federation is very wide, as will be shown, there are still many important matters left to the governmental subunits of the federation. The breadth and limits of federal jurisdiction are specified in the following constitutional provisions.
Article 71. The jurisdiction of the Russian Federation shall include:
a) adoption and amendment of the Constitution of the Russian Federation and federal laws and supervision of compliance with them;
b) the federal structure and territory of the Russian Federation;
c) regulation and protection of the rights and liberties of the individual and citizen; citizenship of the Russian Federation; and regulation and protection of the rights of national minorities;
d) establishment of a system of federal bodies of legislative, executive, and judicial power; procedures for the organization and activities thereof; formation of federal bodies of state power; and federal and state property and management thereof;
e) determining the basic principles of federal policy and federal programs in the field of national structure, the economy, the environment, and the social, cultural, and national development of the Russian Federation;
f) establishment of the legal framework for a single market; financial, monetary, credit, and customs regulation; issuance of money and guidelines for price policy; and federal economic services, including federal banks;
g) the federal budget; federal taxes and levies; and federal funds for regional development;
h) federal power grids, nuclear energy, and fissionable materials; federal transportation, railways, information, and communications; and space activities;
i) foreign policy and international relations of the Russian Federation, international treaties of the Russian Federation, questions of war and peace;
j) foreign trade relations of the Russian Federation;
k) defense and security; defense production; determining procedures for the sale and purchase of arms, ammunition, military hardware, and other equipment; production of fissionable materials, toxic substances, and narcotics and procedures for the use thereof;
l) defining the status and protection of the national border, territorial waters, air space, the exclusive economic zone and the continental shelf of the Russian Federation;
m) law courts; Attorney General's office; criminal, criminal-procedure and penitentiary legislation; amnesty and pardon; civil, civil-procedure, and arbitration procedure legislation; and legal regulation of intellectual property;
n) federal conflict of laws rules;
o) meteorological service; standards, models, the metric system, and time measurement; geodesy and cartography; names of geographical objects; official statistics and accounting;
p) state decorations and honorary titles of the Russian Federation;
q) federal national service.
On matters of joint jurisdiction of the Russian Federation and the governmental subunits of the Russian Federation, federal laws must be issued and, in accordance with them, the legislation and other regulation of the governmental subunits of the Russian Federation shall be adopted. If the law of a local jurisdiction fails to satisfy this requirement, it shall not be applied.
Article 72.1 of the Constitution provides: the joint jurisdiction of the Russian Federation and the governmental subunits of the Russian Federation shall include:
a) ensuring compliance of the constitutions and laws of the republics, charters, laws, and other regulations of the territories, regions, federal cities, autonomous regions, and autonomous areas with the Constitution of the Russian Federation and federal laws;
b) protection of the rights and freedoms of the individual and citizen; protection of the rights of ethnic minorities; maintainance of the rule of law and public order, public safety; and border zone regulation;
c) issues of the possession, use, and management of land, mineral resources, water, and other natural resources;
d) allocation of state property11 ;
e) management of natural resources, protection of the environment and ecological safety; specially protected natural reserves; and protection of historical and cultural monuments;
f) general questions of upbringing, education, science, culture, physicial culture and sports;
g) coordination of health issues, protection of the family, motherhood, fatherhood, and childhood; and social protection including social security;
h) implementing measures to combat catastrophes, natural disasters, epidemics, and eliminating the consequences thereof;
i) establishment of general guidelines for taxation and levies in the Russian Federation;
j) administrative, administrative-procedure, labor, family, housing, land, water, and forestry legislation and legislation on the sub-surface and environmental protection;
k) personnel of the judiciary and law-enforcement agencies; the bar; and notaries;
l) protection of the original environment and traditional way of life of small ethnic communities;
m) establishment of general guidelines for the organization of a system of agencies of state power and local self-government; and
n) coordination of the international and external economic relations of the subunits of the Russian Federation, and compliance with the international treaties of the Russian Federation.
2. The provisions of this Article shall apply equally to the republics, territories, regions, federal cities, autonomous regions, and autonomous areas.
As provided in article 73, outside of the jurisdiction of the Russian Federation and the powers of the Russian Federation on issues within the joint jurisdiction of the Russian Federation and the governmental subunits of the Russian Federation, such subunits shall exercise full governmental power. At this point it is time to return to general topic of this review.
With the development of the law-making activity of local bodies, access to local legislation became necessary. While virtually every service provider tracks the legislation of Moscow (and
Moscow region) and Saint-Petersburg, two main business centers of our country, other regions remain uncovered. Because of its special feature enabling remote access to database and development policy, Consultant Plus is expected to have the best coverage of legislation at lower levels. This firm encourages its regional representatives to create databases of the legislation of their region. Design of software that includes built-in facilities for access over telecommunications lines to remote database services will make it easy to access these regional bases.
Not only does the Russian legislature adopt new acts; it also keeps amending old laws. Information retrieval systems allow users to see text that includes recent amendments. They also contain the very acts that are passed to change the old law. If you need not only to know the essence of current law but also to research the legislative history of certain provisions, hypertext-based systems such as Garant will make it easy for you. Just point to the hypertext link, and the system will bring up the new revision alongside the original text.
By contrast, some service providers, for instance Kodeks, offer a separate database that contains an archive of repealed laws and original texts of laws that were later amended. This database may be of interest to legal researchers or sometimes, in specific circumstances, to litigators (as a general rule a law that was in force at the time of the conduct shall be applied by a Russian court, even if that law has been repealed by the time of the proceedings; however, especially in the criminal sphere, if a new law eliminates or mitigates liability, it will be applied by the court).
Legal information retrieval system "Jurisconsult," developed by TOO12 "Informationniye systemy i tekhnologii," though generally outside the scope of this review, is worth mentioning here because of its sophisticated search methods that provide effective results without complexity. Sometimes it works as a real expert system. Inventions used to build this retrieval system are protected by the certificate of authorship13 .
What is the future of Russian legal information systems? Apparently, the stand-alone databases can be easily transferred to CD-ROMs (such products are already offered by Garant, Consultant Plus and USIS). The only problem with this trend is the need to replace the entire disk with each update. Forthcoming magnito-optical disk drives that offer high capacity at moderate prices may be one of the possible solutions. Another trend is movement to other platforms and operating environments. All of the systems already have Windows versions. Network versions are also available for all systems. We may expect the use of Macintosh or UNIX computers for some implementations in the future.
With the growth of the volume of legal sources, suppliers of this information will rely more upon on-line services. Development of international trade and finance will impose a requirement to cooperate with Western legal information service providers. This cooperation will be mutually beneficial; western businessmen will receive authentic information about Russian law, and their Russian partners will have the opportunity to browse foreign laws14 .
First projects of this kind are already started. For instance, on the WWW server http://www.techno.ru/ you may find DataBases on the Russian and International Law developed by the Company "INEC" (the name means Information - Economics). The topics include legal regulation of bank activity and export-import operations (with russian texts of more than 50 international agreements). "Kodeks" developers are setting up on-line version of their bases avalable for both WAIS and WWW searches. The similar project was initiated in spring 1994 by the Company "Inforis" located in Nizhniy Novgorod (Inforis Document DataBase ), but the present status of this venture is unclear - documents there seem to be outdated. Notably this server contains local documents of Nizhniy Novgorod and the region. Consultant Plus is trying to port its databases to WWW technology. Some comments to russian legislation (translated to English) and english texts of the related legal acts are located on the WWW server: http://www.spb.su/ .
If you or your university are engaged in a Russian studies program, it may be worth looking at the collection of files that is placed on the anonymous FTP site trans.csuohio.edu (directory /pub/russian_law. Login as anonymous and send your e-mail address as password). Demo versions of legal information retrieval systems Consultant Plus and Kodeks that are posted there include a cardfile of current Russian legislation (more than 3,000 records that include the name of the act, issuing authority, date of enactment, and the reference to printed publication). You may find these demo versions to be a useful tool, at least at the first stage of legal research.
Copyright (C) Ilya Nikiforov, 1995
1 "Index" is determined on the basis of the degree of econoic freedom that each country allows in 10 key areas: trade policy, taxation policy, government consumption of economic output, monetary policy, capital flows and foreign investment, banking policy, wage and price controls, property rights, regulations and the balck market. press here to go back to text
2 Kim Holmes. In Search of Free Markets. The Wall Street Journal.
December 12, 1994. press here to go back to text
3 In 1993 the number of luxury cars that "Mercedes"
had sold in Moscow exceeded its aggregated sales of these cars
in the rest of the Europe. press here to go back to text
4 one of the first legal forms of for-profit businesses in Russia;
the English translation would be "small firm" press here to go back to text
5 Here and further data are taken from: Rossiiskie sistemy pravovoi
informatcii. Moscow. Inventa. 1994 press here to go back to text
6 Article 15 of the present Constitution provides as follows:
"Laws shall be officially published. Unpublished laws shall
not be applied. No law affecting the rights, liberties, or duties
of the individual and the citizen may apply unless it has been
published officially for general knowledge." press here to go back to text
7 One provision that is related to the topic of this paper is
missing from the law. This provision concerns electronic dissemination
of the official texts of acts through the legal information system
"Sistema." The future of this provision and the system
itself remains unclear. press here to go back to text
8 Lower court opinions may be studied within the framework of
the special research projects but are rarely used in litigation.
press here to go back to text
9 although the title of this judicial body is usually translated
to as "the Court of Arbitration", it shall not confused
with independent arbitration insitution press here to go back to text
10 "Plenum" in Russia means the Court sitting em bank.
press here to go back to text
11 It means allocation of state property amongst federal jurisdiction,
jurisdiction of subunits of federation and jurisdiction of lower
administrative units; press here to go back to text
12 Limited Partnership press here to go back to text
13 Form of intellectual property protection used during the soviet
period as a counterpart to patent protection. press here to go back to text
14 At present Russian legal experts reccomend to domestic businesses
to include in international contracts choice of law clause that
stipulate that the law of major continental european country (Franceor
Germany) shall be applicable to relationships of the parties because
"it is difficut to accertain the contents of the laws of
the other countries". press here to go back to text
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