Picture 1: The System Of Justice In Russia
Table of Contents
Russian Legal System On The Way From Planned To Free Market Economy.
When we speak about Russian legal system it is necessary to describe not only the ideal structure of institutions, but also actual enforcement of the existing laws. Otherwise the idealized description may mislead a student trying to become acquianted with the subject of this piece. Our problems include:
Many people blame Russia as lawless society. But even those sceptics admit that a good lawyer is the very first need to pursue business activity in the country (!). I believe that ignorance of the law is the thing that make people to complain about the legislation (and engage in unlawful practices). Perhaps for the average businessmen it is easier to bribe an official than to pursue their interests under the power of the law. However, the more people enforce their interests under the power of the law the sooner we achieve the Rule of Law. Ironically, western businessmen that are familiar with the idea of using the justice system to reinforce their rights may be those who will finally help their Russian colleagues to recognize the power of the law. Press here to read the passage discussing these problems in more detail (Russian, KOI8).
For cultural reasons it is is unpopular for private individuals to refer to the court as means of dispute resolution in Russia (businesses use this way of settling disputes more often). However public opinion is very favorable to suing state bodies or state officials. An increasing number of cases of this kind is initiated against state bureaucrats. Hopefully eventually this progrocall the bureaucrats to the order. The suits against the state bodies (especially customs and tax service) are common now among businessmen. You may find the reviews of judicial practice on these matters issued by Supreme Court of Business Claims in the "Kodeks" libraries.
This decision was preceded by the law of Russia titled "On the application of the legal acts of the USSR on the territory of Russia" of October 24, 1990. N 263-1. The latter recognized that only statutes issued by the USSR within the limit of powers transferred to it by the Russia were effective. A previous law that had primarily political but not legal purpose is impliedly overruled by the decision cited above and is no longer effective.
Legal scholars and practitioners argue whether the acts of Soviet Union that were adopted by the Parliament, but did not became effective at the moment the Union was dissolved, fit within the scope of the present decision. The prevailing view is that such acts require special enabling legislation issued by the Russian parliament and addressing the status of the bills.
The Fundamentals of Civil Legislation have been put into operation on the territory of Russia by the special decree of the Supreme Soviet Of Russia (Russian Federation Supreme Soviet Decree No. 3301-1 July 14, 1992 On the civil-law regulation of relationships during the period of economic reforms) and are applied on the territory of Russia to the extent specified by that decree (with later amendments). It is important to know, that the effective date of this statute is not the January 1, 1992 but August 3rd, 1992 - the date when the enabling Decree came into force.
Such decree was not issued with the respect of the Law of USSR on the Inventions and Law on Industrial Designs. These laws were never considered to be effective in Russia. But certain provisions of the Law of USSR on the Inventions were mentioned in the Decree on the Enactment of the Patent Law Of Russia as effective until the adoption of the Russian Statute "On The Employee's Inventions". Therefore, this provisions of the law are effective from the date set forth by the enabling decree.
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. Federal bodies continue adopting an estimated 10,000 legal acts every year (That is how civil law system works!). 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.
Not all acts out of this tremendous volume continue to be effective. Some are remanded virtually instantly. For instance, the Decision of the Government establishing the procedure for the sale of land on the auction or tender N 1272 adopted in December 10,1993 was repealed on December 24,1993 by the Presidential Decree N 2287 . No one piece of land was ever sold pursuant to that decision!
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 legal and 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" Russia was ranked was 73rd out of 101 regions graded in order from the most economically free to least economically free("Index" is determined on the basis of the degree of economic 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 black market). The country appeared to be among "mostly unfree" states due to political and legislative unstability.
However, local entrepreneurs 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. According to the report of the President of Russia, in 1994 private sector has created a 65% of Gross Domestic Product (GDP) in Russia.
The foregoing shows the importance of up-to-date knowledge of Russian business law for anyone doing business with or within Russia. Control over information is one of the means a totalitarian government uses to exercise its power. As a consequence of long-established administrative methods of state government, the beginning of the new Russian period was lacking mechanisms or channels for fast and effective dissemination of legal data. Legal information systems and other electronic sources, including Internet sources, are able to fix the situation.
The new Constitution of Russia, that was adopted by nationwide vote on December 12, 1993, has direct legal effect (this rule is embodied in the Art. 15 (1): The constitution of the Russian Federation shall have the supreme legal, direct legal effect [Russian: pryamoe deystvie] and shall be effective throughout the territory of the Russian Federation.) It means that even in the absence of the implementing authority (like federal law) you may argue in the court on the basis of the provisions of the Constitution. This situation is new for the Russian legal system. During the Soviet period the Constitutions that were fully charged with constitutional rights and freedoms were not enforced due to the lack of implementing legislation and absence of direct effect. Stalin's USSR Constitution of 1936 was one of the most advanced Constitution of the time in terms of the promulgated rights and democratic institutions. The USSR Constitution of 1977 contained the provision that guaranteed people the right to challenge actions of the state officials (bureaucrats) before the court. The courts have refused to proceed with the complaints until implementing law was issued more than 10 years after, in 1979.
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: (Russian text of Art. 71 is here )
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; procuratura; 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 state service.
Article 72.1 (Russian text of Article 72.1 is here ) 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 property;
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 natural resources 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;
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.
All laws must conform to the Constitution of Russia. Federal constitutional
laws take precedence over other laws. Acts of
executive bodies must conform to the legislation.
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 on the most important matters, including:
An evidence of the increasing importance of the Presidential Acts can be found in the New Civil Code that says in Art. 3(3) that civil-law relationships may be regulated not only by the laws but also by the Decrees, provided that the Decrees do not contradict to the existing laws.
As a rule Decree of the Government (????????????? ????????????) and Decree of the President (???? ??????????) are regulatory(???????????) legal acts that contain rules of law. Orders of the Government (???????????? ????????????) and Decree of the President (??????????? ??????????) are administrative acts issued in the course of their executive activity.
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 current list of the Federal bodies of the executive power may be found in the Decree of the President titled "On the Structure of the Federal Bodies of the Executive Power" of January 10, 1994 N 66 . The most important bodies of federal executive power which issue a significant volume of regulatory legal acts 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.
To issue a regulatory legal act an executive body must be legally enabled to do that by the law or decree. Meanwhile often the acts are issued without such authorization. In this case they shall be inoperative. It is very important when analyzing the act of a ministerial body to find an enabling legislation. Such an act shall be registered with the Ministry of Justice.
When analyzing local legal act you should check first of all whether the subject matter of the act is within the jurisdiction of the bodies of subunit of federation. Very often it appears that they exceeded their authority - then such an act is deemed to be void.
The types of the issuing authorities and the tittles of the acts may differ in different subunits. Article 77.1 stipulates. "The system of state power bodies of the republics, territories, regions, federal cities, the autonomous region, autonomous areas shall be established by the subjects of the Russian Federation independently in accordance with the basic principles of the constitutional system of the Russian Federation and general principles of the organization of legislative and executive bodies of power as envisaged by the federal law." This system may be fixed in the Constitution of the republic in question or .the Charter of the territory, region, city of federal subordination, autonomous region, autonomous area, adopted by the legislative (representative) body of the relevant subject of the Russian Federation.
Generally we can always find some body of state power that is elected by the popular vote and body of the executive power (perhaps chaired by the chief officer of the executive branch having its own status and the capacity to adopt legal acts). An example is the recently adopted Charter of Leningrad Region - we may find here Legislative Assembly and the Governor of The Region that serves as the chair of the Government of the Region:
Enabling legislation may be embodied not only in federal legal acts but also in such agreements. Moreover, such agreements are concluded not only among executive bodies but also among federation and subunit themselves per se ( their bodies of state power). This practice is backed by Art 11.3 of the Constitution that stipulates: " The scope of the authority and power of the bodies of state authority of Russian Federation and the bodies of state authority of the subunits of Russian Federation shall be determined under this Constitution, Federal and other Treaties on the allocation of jurisdiction and certain powers."
For instance, the Agreement of Russian Federation And The Republic Of Tatarstan executed on February 15, 1994 "On The Determination Of Jurisdiction And Mutual Delegation Of Certain Powers Between The Bodies Of State Power Of Russian Federation And The Bodies Of State Power The Republic Of Tatarstan " to some extent changes the limits of jurisdiction set in the Art. 70-74 of the Constitution.
This stipulation results in interesting consequences. For instance, the international contract for sale of goods is concluded among US and Russian businesses and it includes choice of law clause stipulating that Russian substantive law shall be applied. The governing rules in this case shall be not those of Russian Civil Code but those of Vienna Convention On the Contracts for International Sale of Goods.
There is a high possibility that the interpretation used in Civil Code will be applied by the courts by analogy to criminal, administrative and other areas of law.
Russia has succeeded rights and duties of USSR in international relations.
These decisions have all the attributes of usual legislative and regulatory materials for purposes of data retrieval and can be easily accessed using the existing search mechanisms of the respective legal information retrieval systems. You may find the decisions of the Supreme Court of Business Claims and the Supreme Court (of General Jurisdiction) of Russia in the "Kodeks" legal information system, but the coverage is selective and thus not comprehensive.
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. Judicial opinions on actual cases are published irregularly and are used to explain the proper judicial interpretation of the statutory provision rather than as the controlling authority (precedent) in the subsequent cases.
Judges of the courts of general jurisdiction usually follow the guidelines set by the explanatory rulings of the Supreme Court, but they are not legally obligated 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 must follow the explanatory rulings carried out by the Plenum of the Vyshshii Arbitrazhniy Sud (Supreme Court of Business Claims).
Judicial system. Russia does not have two separate systems of federal and regional courts so far. All the courts are the parts of a single system. The situation may be changed by a proposed federal constitutional law titled "On the Justice System of Russian Federation".
Picture 1: The System Of Justice In Russia
Picture 2: Classification Of The Areas Of Law In Russia
Knowledge of these classifications is sufficient because most legal resources are structured on the basis of some version of such classification. For instance, you may find Code (??????) - basic law (like American Restatements, but enacted by the Parliament) forming the foundation of every basic branch of legislation.
For the statute adopted by the Parliament it will be the text of the law and the Decree on the Enforcement. (We may find also the Decisions of Chambers of the Parliament that they issue in the course of law-making activity - these are unitary).
For the Decree of the Government or the President it will be text of the decree containing the technical clauses (for instance, stipulating that the rules specified in annexes shall be effective) and annexes containing the substance of the regulations. However, the President keeps the habit of issuing from time to time the monolithic Decrees that encompass both types of clauses in one part.
There are certain traditions of composing the text of the substantive law. Usually the acts that are well worked out will have the "general" and "special" parts. Provisions of general part set up the regulations that will apply to almost every legal relationship governed by that statute. For instance, for the Civil Code it is general rules concerning remedies, property, legal capacity of persons and general provisions of the law of obligations (contracts) such as statute of fraud. The specific part contains the regulations that will apply only to the certain relationships. In Civil Code it comprises rules governing specific types of commercial transactions: sales, lease etc. or inheritance.
These numbers are frequently cited by lawyers when they are making references to the acts of the executive bodies.
Laws, Decrees of the President and the Government are often cited by the number of the Article in "Sobranie Zakonodatelstva" publication as well.
What is the Solution? Rely on the title of ministerial act.
Legal acts other than laws shall be published if they contain rules of law that affect freedoms, rights and duties of a human and a citizen. For the acts of the President and the Government this constitutional provision is implemented by the President Decree N 302 "On the procedure for the publication and the effective date of the Acts of President of Russia and the Government of Russia" of March 26, 1992.
Acts of other federal executive bodies are subject to the Decision of the Government of Russia dated April 13, 1993 N 307 "On procedure for the registration and publication of the legal acts of the ministerial executive bodies". Rules and regulations adopted by administrative agencies and other lower executive bodies are published in the daily newspaper "Rossiiskie Vesti" and, if not specified otherwise, shall be effective on the date of such publication.
Similar regulations may be found now in subunits of Russian Federation. For instance, in St.Petersburg according to the Mayor Order N 1133-r of November 8, 1994 the newspaper "Sankt-Peterburgskie Vedomosti" and monthly "Vestnik Merii" are designated to be the official sources of the acts of the Mayor's office. If not provided otherwise, these acts are effective on the date of publication.
Press here to see Table 1: Where To Shop For The Russian Legislation
Other printed publications that are recommended by Russian legal scholars
as the good source of comments on the current legal issues are
"Finansovaja Gazeta" weekly newspaper covering financial issues
"Gosudarstvo I Pravo"(State And The Law) monthly published primarily
theoretical legal journal;
"Khoziaistvo I Pravo"(Economy And The Law) monthly published
theoretical-practical journal discussing economic and legal issues;
"Rossiiskaya Iusticia" (Russian Justice) monthly published journal,
theoretical and practical issues;
"Pravovedenie" (Jurisprudence) - bi-monthly magazine associated
with the Law School Of St. Petersburg University;
Both academics and practitioners write in this publications. Selected articles on the legal topics printed in Russian periodic you may find in the "Kodeks" library called "Juridicheskie Kommentarii I Konsultatsii".
Selected pieces of "Moscow News" - newspaper that is printed in Russia in several languages, including English,- are accessible in Lexis/Nexis in MOSNWS file (library WORLD). You may be interested in receiving a regular (printed) english edition of this newspaper as well because it often contains partial translations of new Russian laws.
To describe briefly pros and cons of each system I must mention the hypertext features of "GARANT" system that has easy-to-follow links between related documents. Another well-done feature of this system is the thesaurus that comprises significant legal expertise. "Consultant Plus" is promising to be especially strong in developing regional DataBases of local legal acts.
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.
Articles from the Russian Newspaper Moscow News can be found in the MOSNWS file - (WORLD library).
First projects of this kind have been started already. Press here to know about them.
Up-to-date news regarding Russia may be found in USENET group: bit.listserv.e-europe as well as Clarinet (commercial news provider available on Internet) group clari.country-profiles.russia.
Open Media Research Institute is publishing the Daily Digest that has replaced the RFE/RL Daily Report new e-mail subscribers may enroll by sending an e-mail message to: [email protected] (In the text of your message, type:" subscribe omri-l yourfirstname yourlastname).
Copyright (c) Ilya Nikiforov, 1995 | F&P Home Page | RLS Home Page | Research |