PROBLEMS OF LEGAL REGULATION OF THE EXAMINATION OF NORMATIVE LEGAL ACTS

ABSTRACT

Legal examination of normative legal acts is a long-established practice of the modern legislative process in the Russian Federation. The article deals with the problems of legal regulation of the examination of normative legal acts, as well as possible methods of their solution.

Keywords: legal expertise, legal examination of normative legal acts, anti-corruption expertise, independent expert, constituent entity of the Russian Federation.

Legal expertise is aimed at establishing compliance of the provisions of normative legal acts with the human rights and freedoms enshrined in the Constitution of the Russian Federation. This legal activity includes checking the correctness of the choice of the form of the act, relations with the general system of current legislation and with international legal acts, availability of financial, organizational and other factors, compliance of the provisions of the draft or already existing normative legal act with modern achievements of Russian and foreign legal science and legal practice.

Despite the fact that the examination of legal acts is a long-established structure in the Russian legal system, it does not have a legislative act that would fully regulate this activity. Nowadays, there are only methodological recommendations of the Ministry of Justice of the Russian Federation. The analysis of this document leads to the conclusion that there is no clear regulation and uniform requirements for the examination. We need a holistic and unified approach to the organization of legal expertise of normative legal acts and their drafts.

Also, it is necessary to pay attention to the plurality of subjects of legal expertise. Federal and regional bodies of state authority, justice agencies, the public prosecutor's office as well as public organizations and independent experts can be engaged in expertise activities. Such a diversity of subjects leads to the fact that it is necessary to establish a single methodology for conducting legal expertise.

The above-mentioned subjects of expertise activity do not have communication with each other. Each instance of legal expertise has its own experience and methods. At the same time, several organizations can participate in the examination of one legal act. This reduces the quality and effectiveness of legal expertise.

One of the methods of solving this question is the creation of a single portal where experts could monitor the examination of normative legal acts online. It would also be effective to conduct one expertise by experts from several instances at once. This would make this activity more objective, and the presence of different experience and methods of conducting it would make it possible to make a comprehensive analysis of legal acts.

There is also an acute question in the qualification of experts. In the Russian Federation, a person having Russian citizenship and possessing higher professional education and work experience in the specialty for at least 5 years, or a legal entity with at least three employees having higher professional education and work experience in the specialty for at least 5 years can take up this position.

The position of an expert has its own characteristics and requires narrowly specialized knowledge. An essential role in this activity is played by such qualities and skills as personal experience, logical thinking, worldview, high sense of responsibility, self-discipline, political views, etc. Experts should be trained in all this, but since there is no special education in this kind of activity in our country, it is worth thinking about the lack of qualification of experts. Moreover, there are no exams, certification and licensing of experts.

Based on the above, it is necessary to introduce special education, where narrowly focused skills and knowledge for this profession will be acquired. Moreover, it is necessary to create a noncommercial organization that will examine both state and independent experts. Such measures will solve the problem of lack of experts’ qualification and will allow bringing legal expertise to a new level.

In addition, there are defects in the consideration of independent experts’ conclusions of by the constituent entities of the Russian Federation. In accordance with the requirements, the government agency that issued the normative legal act or prepared its draft, upon receipt of the independent expert’s opinion, must review and send a response on the results of the review within thirteen days from the date of its receipt. However, as practice shows, in most constituent entities of the Russian Federation there is no legal regulation of obtaining and reporting an independent expert’s finding. Accordingly, the role of independent experts decreases, which entails negative consequences. A possible method of solving this problem is to expand the powers of independent experts and organizations conducting legal expertise.

Thus, it can be concluded that insufficient regulation and lack of requirements hinder the effectiveness of legal expertise. There is a need to improve the legal framework of this legal activity.

Based on the above, it is necessary to take the following measures.

Firstly, to issue a legislative act that will clearly regulate the conduct of legal examinations, specify procedures and present unified criteria in order to avoid abuse of the right during the examination of normative legal acts.

Secondly, it is necessary to organize communication between the instances conducting expert activities. This will make it possible to effectively conduct expertise and improve their quality.

Thirdly, it is needed to make more demands on experts. Experts’ insufficient qualifications, absence of educational base for them, lack of a document confirming qualifications and special knowledge hinder the correctness and effectiveness of this legal activity.

Fourth, such measures as expansion of the capacity for independent experts, introduction of legal responsibility for the preparation of a false expert opinion as well as strengthening responsibility of government agencies developing and issuing normative legal acts to independent experts are to be done.

References:

1. Addendum to the order of the Ministry of Justice of the Russian Federation dated 31.05.2012 N 87 " Methodological recommendations for the legal examination of normative legal acts of the constituent entity of the Russian Federation " [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 08.11.2022)
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3. Mursalimov K.R. Legal expertise as a type of legal activity / Mursalimov K.R. // Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia. – 2011. – N 10.  – S. 80 – 82.
4. Markiyanov S.V. Problems of independent noncorruption expertise: opinion and suggestions of independent experts / Markisyanov S.V. Egorycheva E.A. // Monitoring of law enforcement. - 2012. – N 1. – S. 36-3