Secretariat of the Council of the Inter-Parliamentary Assembly of the CIS Member States. Interparliamentary Assembly of the Commonwealth of Independent States. Other organizations in the directory

Essence and principles of legislative activity Stages of the legislative process Promulgation of the law

Constitutional control in the legislative process

Lobbying and its legislative regulation

The essence and principles of legislative activity

Legislative process- official activities for the preparation, consideration, approval and promulgation of the highest normative acts of state power.

Its essence and direction are determined by the following character traits:

• (1) such creativity is inherent in any state in the history of civilization;
• (2) lawmaking is formalized in the form of special procedures provided for by law (including constitutional provisions, special laws, rules and/or regulations);
• (3) for the implementation of legislative activities, a special body (or bodies) is created, whose purpose is to formalize the process of creating legislative acts;
• (4) the subjects of legislative activity are the people and the highest bodies of state power, which in their unity constitute the so-called full parliament;
• (5) the narrowing of the scope of the legislative process, the falling out of the generally accepted scheme of certain links indicate the infringement of the democratic foundations of society.

Within the framework of the legislative process, there are:

• (1) constitutional process, anticipating the adoption and introduction to legal effect the basic law of the country;
• (2) parliamentary process as strictly regulated procedures for the creation of basic rules for the behavior of citizens by the legislative branch of the state;
• (3) substitute process, which is a procedure for the adoption of acts having the force of law, in the order of delegated lawmaking.

The theory of the legislative process is formed in Ancient Rome, which is understandable, since it was there that the most advanced legal system was created ancient world, which still represents a model of professionalism in the creation of legislation. The children of Roman citizens were taught Latin according to the texts of laws - their content was so correct and perfect. The principles of law-making are fixed in the Roman legisprudence, general rules adoption of laws and amendments to them, legislative stages.

England occupies a special place in lawmaking as a science by the very fact of the creation of a parliament and modern legislative procedures in it. It was in the UK that the idea of ​​the supremacy of the legislature was born and embodied in reality, the first acts appeared that introduced detailed procedures for the development, discussion and adoption of a law, the concept of the official publication of a law, the procedure for its entry into force, and much of what legislators from different countries use today .

The legislative process takes place in accordance with certain guiding ideas (beginnings), the observance of which is necessary condition the effectiveness of legislation, the compliance of the results of lawmaking with its goals, the reality and enforceability of laws in the life of society and the state.

Such ideas, i.e. principles legislative process become:

• (1) him legal nature, those. conditionality exclusively by legal factors (and not, for example, by ambition, selfishness, emotions and other manifestations of the personal interests of those in power);
• (2) legitimacy, compliance with which requires the adoption of legislative acts strictly within their own competence, in strict accordance with the established procedure, when carrying out the necessary procedures and by the body that is authorized to make appropriate decisions;
• (3) scientific validity a process based on the achievements of domestic legal doctrine, legislative techniques, on the involvement of legal scholars in the preparation of the concept and text of the draft law, in the conduct of special studies, including legislative experiments;
• (4) accounting foreign experience legislative regulation and results of scientific research by foreign scientists;
• (5) professionalism participants in the legislative process, giving them the opportunity to meet its goals and objectives;
• (6) consistency, manifested in consistency, consistency, orderliness and complexity of the legislative process, the results of which must fit into the existing hierarchy of legislation;
• (7) democracy, based on the connection of the legislator with reality, with the interests of the sole bearer of state sovereignty in modern democratic countries, with the involvement of the public in the discussion of draft laws and the processes of its consideration and adoption;
• (8) publicity, which acts as a guarantor of ensuring the principle of democratic lawmaking and manifests itself in timely informing the public about legislative work and their results.

§ 1. Technique for formulating and fixing legal principles (Chernobel G.T.)

All conscious human activity is based on certain principles that create a certain order in this activity. The task of the scientific principles developed by theoretical thought is to eliminate the individual, random, through deep and objective generalization, to reflect something typical, universal, natural in social universality, and on this basis to carry out certain targeted activities in accordance with certain human needs, interests.

The teachings of the German philosopher, lawyer, naturalist G.V. Leibniz (1646-1716) about the principles of human existence, the methodology of their application in the system of social relations.

Principles Leibniz called "all fundamental truths sufficient to, if necessary, obtain from them all the conclusions, after we had a little fun with them and have been used for some time. In a word, everything that serves as a guide for the spirit in its desire to control morals, worthily exist everywhere (even if you are among the barbarians), maintain health, improve in all the things you need, in order to eventually achieve have a nice life. The art of applying these principles to circumstances includes the art of judging or reasoning well, the art of discovering new truths, and, finally, the art of recalling what is already known in time and when necessary.

Leibniz taught to distinguish between the principles that operate in nature, which are objectively determined, and the principles of a spiritual order, formed by human consciousness, which can be theoretical and empirical, very abstract and quite specific, general and special, located in a certain system-hierarchical sequence, interdependence, interconnection .

Principles of high value significance, Leibniz noted, can be contained in human concepts themselves, which are formed not by false imagination or erroneous vision ("due to human laziness and intolerance of thought, many errors arise"), but on the basis of a scientific analysis of the phenomena of reality, their comprehensive understanding. The principles of social life, sufficiently definite, clear, clear, objectively reflecting human needs and interests, Leibniz instructed, "should always be observed." Armed with false principles, you can do a lot of all sorts of harm.

Every principle is the result of a rational logical thinking, reflecting causal dependencies in system of social relations, the needs of human life, has long been characterized in philosophical literature as a certain ideological principle, as the fundamental principle of this or that human activity * (137). Having a long history of its development, legal thought has given rise to many legal principles, which play an extremely important regulatory role in the system of public legal relations, in the formation, development, functioning, improvement of law.

Known, in particular, the principles laid down by Confucius (5th century BC) as the basis of "virtuous government controlled": philanthropy, justice, proper normative behavior. Dante, who defended the idea of ​​monarchical government, considered such principles as justice, freedom, reason, separation of secular power from the church, the rule of law. Thomas Aquinas, saying, for example, on legislative activity, based on the principle of the common good (" human laws must correspond common good"). In the era of enlightenment, the importance of the principle of justice in the system of public administration was especially emphasized, the principle of private property was condemned (J.-J. Rousseau: "the fruits of the earth are for everyone, but she herself is a draw").

The main essential feature of legal principles is that, containing a certain synthesizing legal idea * (138), a certain legal ideal, charging people with the energy of the corresponding social action, they act as an ideological key to understanding, perception of the current system of law, as its ideological root , which determines the normative content of all its sectoral and intersectoral branches, modeling a stable regulatory and legal space, a social type of law, its modus content ("allowed", "required", "prohibited"), its functional potential in a given particular society, state. In short, legal principles are nothing else, as a legal ideology, born of legal consciousness at the upper level of its development, in all its paradigmatic meaning. These are the bearers and guardians of the legal ideology, providing the necessary ideological orientation both in law-making and law enforcement activities. G.V. Maltsev rightly emphasizes that "the law has always been, is and will be a specific ideology ..." * (139).

In the functional hypostasis legal principles are the center of legal regulation * (140). Legally fixed, they reflect the intellectual dominant, successively * (141) and ahead of * (142) organizing the volitional beginning of the public sense of justice of a certain era, transforming over time into fundamental legal criteria lawmaking and law enforcement activities. The opinion existing in the scientific literature that "principles of law" are not its basis or the beginning, it "is a derivative of norms" * (143), does not reflect the real legal reality. Legal principles are the primary ideological ingredient of universal regulatory significance in the structure of the current legal system, which determines its social effectiveness.

Any scientific legal development begins with legal principles that permeate the entire system of specific legal relations, cultivating in a democratic rule of law respect for universally recognized human values, their protection and protection. it not just a set of specific abstract statements, concepts, postulates. Each legal principle must have a real scientific basis, reflecting the real social reality, which gives it a regulatory significance, vitality.

as the principles of sound human mind, which are always based on a certain worldview core, reflecting the generalization of certain needs and interests of social life, legal principles systematically combine the theoretical and empirical in their logical interdependence, interconnection.

Being the fundamental basis of legal ideology, legal principles play an important role in the further development of this ideology, influencing the public legal consciousness in an appropriate way. In order for this or that legal principle to universally convince and operate optimally in the system of legal relations, it must pass through the human mind, through legal feelings. From hasty, rude, false, politically opportunistic, quasi-legal principles, a person distances himself, alienates himself, acts according to self-established principles in accordance with his personal conviction.

It is necessary to take into account the hierarchical component of legal principles. The traditional classification of these principles into general legal, intersectoral and sectoral ones is insufficient both from law-making and from a law enforcement point of view vision * (144). The functional range of legal principles is such that, in addition to the named triad of species, it is especially necessary to highlight, for example, such legal principles as international, constitutive, protective and protective.

Regulatory significance of generally recognized principles is known international law acting as a law of a higher order, the generating regulatory role of which is especially growing in the conditions of modern globalization processes. The UN Declaration on the Principles of International Law (1970) focuses on the functional unity of these principles, fixes the position according to which "each principle should be considered in context of all other principles."

Represented in special legal acts * (145), principles of international law are obligatory for all state formations of the world community. This or that state is not entitled to issue legislative acts that violate the universally recognized imperatives of international law. Of course, this does not at all diminish the regulatory role of domestic legal imperatives. As M. Montaigne emphasized in his famous "Experiments", "the rule of rules and supreme law laws lies in the fact that everyone is obliged to obey the laws of the country in which he lives "* (146).

Common international legal principles are the main conditions for a single world space, international legal order. The interaction of international and domestic law on an equal basis, which does not allow any monopoly on the part of certain international bodies. As A.P. used to say Chekhov, there are "limits to the universal", which determine the limits of international legal regulation of social relations. This is especially important in the context of the ever-increasing present stage social development of the self-consciousness of peoples * (147), which opposes negative globalization processes and which is increasingly difficult to manipulate. Certain legal principles of some countries cannot be mechanically, arbitrarily implemented into the practice of other countries with completely different historical, national traditions.

National regulatory systems functionally act as equal component of universal human legal values. In regulation of the public relations the intrastate law "continues to play a basic role, and the international law subsidiary, auxiliary" * (148). International law contributes to the development and improvement of national legal systems, is one of the general criteria for the constitutionality of legislative acts.

At the intrastate level, legal principles of fundamental importance are fixed in constitutions, other constitutive acts * (149). The constitutional principles embody in the most concentrated form the spirit and meaning of the constitution. AT scientific literature rightly it is emphasized that "the vagueness, amorphousness or uncertainty of the normative content of constitutional principles will certainly affect the state of statehood.

A state that radically changes its ideas about the content of constitutional principles and, what is much more dangerous, tries to adapt them to the current political situation, cannot be considered strong. A strong state is one that functions stably in accordance with the prohibitions, decrees, requirements that make up the content of democratic constitutional principles "* (150).

Any unified standards of the constitutional consolidation of certain legal principles have not been developed by legal thought. As an important strategic component of public administration, legal principles usually reveal the content of the constitution, defining the fundamental normative postulates about the democratic arrangement of society, the state, and human rights (see, for example, the Constitution of the Portuguese Republic).

Great importance is attached to a specific specification of constitutional principles. In the same Constitution of the Portuguese Republic, for example, " General principles"concerning the fundamental rights and duties of citizens," Fundamental principles economic organization society", "General principles political organization power", "General principles of judicial activity". The Spanish Constitution has a special chapter "On the fundamental principles of socio-economic policy", the Constitution of the Republic of Hungary highlights the "Basic principles of elections", the Constitution of the Republic of Turkey - "Basic principles of administration", as well as "Principles Concerning Budgetary Amendments".

The formulation of certain constitutional principles is not necessarily semiotically represented by the very concept of "principles". In a number of European states this way, for example, the fundamental principles of legislative activity are fixed (see, for example, articles 41-49 of the Federal Constitutional Law of Austria, articles 74-84 of the Belgian Constitution, articles 73-77 of the Greek Constitution, articles 20-27 of the Constitution of Ireland, art. 81-92 of the Spanish Constitution, articles 70-82 of the Constitution of the Italian Republic, articles 81-111 of the Constitution of the Kingdom of the Netherlands, articles 169-173 of the Constitution of the Portuguese Republic, articles 72-79 of the Romanian Constitution, chapter 6 of the Fundamental Law of Finland, art. 70-82 of the Basic Law of the Federal Republic of Germany, chapter 8 of the Constitution of Sweden)*(151).

Protective and protective legal principles that ensure public safety in a democratic state of law, the security of the existence of the human person, except for constitutional fixing, have their consolidation in special legislation (for example, in criminal, in criminal procedure), reflecting the level of development of legal culture in this particular society.

Legal principles make it possible to streamline law-making activity into an integral system with clearly defined normative parameters, a consistent program orientation, and a procedural order for its implementation, give this activity a syncretic (undivided, integrative) character. By legal principles "verify how a particular normative act is legal, really is a form of expression of law" * (152).

Of great regulatory importance is the principle of balancing domestic legal principles with the generally recognized principles of international law. "Generally recognized principles and norms of international law and international treaties Russian Federation, - fixed in current Russian constitution, - are integral part of its legal system" (paragraph 4, article 15). "The Republic of Belarus," reads the Constitution of the Republic of Belarus, "recognizes the priority of the universally recognized principles of international law and ensures that the legislation complies with them" (article 8). relating to fundamental rights - defined in the Constitution of the Portuguese Republic - must be interpreted and in full accordance with the Universal Declaration of Human Rights" (paragraph 2 of article 16).

The role of legal principles in law enforcement is invaluable, especially when interpreting the existing norms of law, which in functional terms can give the most diverse legal interpretation * (153) of the norms used.

It is well known that from the point of view of achieving socio-economically acceptable results, the control and supervision activities of the state have always and everywhere been very difficult. Russia is no exception - in recent years, a special social acuteness in Russian society acquired problems of control and supervision activities, caused, first of all, by the excessive scale of administrative control over entrepreneurship.

Of course, the state has always sought to find an acceptable balance of interests between freedom and economic efficiency, on the one hand, and security, openness and legality. economic activity with another. For this purpose, on December 21, 2016, the program "Reform of Control and Supervisory Activities" was adopted in order to reduce excessive administrative pressure on business, simultaneously solving other very important problems of the Russian economy: improving the competitive environment, combating the shadow economy, increasing tax collection and etc. At the same time, a risk-based methodology was used as a toolkit, when special attention is paid to high-risk objects during control.

So, for the period of the reform for the period 2017-2025. expected to achieve:

1. Reducing damage to legally protected values ​​(human life and health) by 50%.

2. Reducing material damage (for controlled types of risks) by 30%.

3. Reducing the administrative burden on business by 50%.

Against the background of the wide popularity of the national Kemerovo tragedy, the termination of the activities of the "Open Government", which dealt with issues of control and supervision, many achievements in the field of its reform have gone into the shadows, remained unknown to the general public. But in vain, I think that not only long-term criticism of the country's control and supervisory service, but also the popularization of its rapid and impressive achievements should contribute to further improvement of the situation. recent years.

For example, to reduce administrative pressure, the very “philosophy” of control measures was changed, new verification algorithms were introduced, when a new requirement is implemented only after the cancellation of 2 obsolete ones, cancellation of obsolete requirements jointly with business, online services for tracking an individual track and remote interaction with control - supervisory authorities, electronic passports of inspections in the Unified Register of Inspections, etc.

In addition, in order to achieve the set goals, activities were carried out to establish smart and economical control, including:

Classification of objects of supervision according to hazard classes was carried out.

Emphasis is placed on scheduled inspections of high and medium risk facilities.

A system of checklists has been introduced for each object of verification, taking into account the level of risk.

The key indicators of control and oversight bodies are aimed at reducing damage.

As a result, impressive results were achieved in just one year of the reform. I will note only a few of them.

In the field of creating a fair competitive environment, improving business conditions and reducing the shadow sector, measures were taken to improve control over the income of entrepreneurs. New information technologies, the creation of a single information space for control and supervision helped to significantly increase budget contributions without raising tax rates different levels. In the future, these measures will make it possible to eliminate unequal competitive conditions, reduce the shadow sector, and redistribute resources in favor of efficient businessmen. In particular, the introduction in the service sector of a system for transmitting data on retail sales online using special cash register equipment made it possible to connect almost 800 thousand taxpayers to this system within the first year, to increase the fleet of online cash registers by 2 million units, then there is 75%. By July 1, 2019, online cash registers will be implemented in the entire service sector.

The steady exit from the shadow of the trade sector continues: in 2017 alone, the average revenue per one cash register doubled, and VAT receipts increased by 38%. Due to the computerization of monitoring and detection of offenses in 2017, the number of operational inspections decreased by more than 2 times and 6 times in the 1st quarter of 2018 (with an increase in the number of effective inspections that revealed violations - up to 90%).

But for a real breakthrough, all this is still not enough. Although the achievements themselves were objective, obvious, rapid and significant, they soon revealed the depth of the still unresolved problems. More specifically, the impressive reduction in many types of control measures has shown that the very quality of the remaining inspections remains an acute and so far unresolved problem, the essence of which is not so much in the redundancy of administrative requirements, but in the lack of priority of the inspection results themselves. In order for the control and supervision service to work precisely in the interests of society, and not for reports, it must substantiate that uncovered deviations from the standards create a real danger to life and health of people, undermine the financial interests of investors or worsen the quality of manufactured goods and services.

Moreover, control and supervision activities are designed to reduce the risks for citizens, and not bring all the real circumstances of inspections to some kind of formal "legality". Very often, achieving such legality, given the rapid changes in Russian regulation, is simply impossible, and given the quality of this regulation, sometimes destructive. Therefore, the very fact of violation of the requirements of the law (in fact, of course, not the law, but in most cases - an outdated by-law, order, standard) cannot be a good reason for taking repressive measures against the enterprise. Regulatory and supervisory authorities should adhere to the principle of not "formal observance of the law", but the principle of "prevention of threats".

To paraphrase a well-known quote in relation to the reform of control and supervisory activities, one can not only say that “the goal is everything, the movement is nothing”, but remind us all that in order to achieve the national priorities of Russian society, such state activity must always remain rational, but the main thing - wise.