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Modern codification methods of regulatory requirements: between traditions and innovations

Codification of regulatory requirements is an apparent necessity. The creation of the unified, streamlined system of legal acts is an essential means for law-making process and extensive comprehension of the legal rules meaning and their proper enforcement. Nowadays, state is interested in structuring of more extensive and comprehensive system of legal acts. Other than classical approaches to systematization, information technologies are used, as well as foreign experience of codification of rules of law and reduction of the number of legal acts without loss of quality.

Classical approaches

Codification is an «unevaluated good: written and strictly established rules eliminate arbitrariness, ensure life interests and satisfy the indisputable needs of all free men in the knowledge and determination of their right».1

Russian legal system related to Civilian law where codification issues are essential. Codification as itself and in its traditional understanding is the most radical option of legislation systematization and may be treated as a specific way of law-making process. The main object of codification is to build unified, streamlined system of the exact legal relations regulation for the prospective development of legislation in the sphere.

Leap-frogging economic development and change of political circumstances are typical for Russia, therefore establishment of unified and streamlined basis for distinguished fields of law is a necessity.

The following three elements are placed at the center of the traditional method of codification of rules of law:

–filling the gaps in legislation in different fields of law;

–eliminating duplication of rules;

–excluding conflict of laws.

So far, however, codification influences significantly the legislation improvement, enhance of the effectiveness and development of the legal culture. The system provides the highest level of legal material processing, including general provisions, definitions and rules of law. However, traditional methods are becoming less effective due to abundance of pieces of legislation, including those existing separately themselves. It is extremely complicated to process physically the entire array of legal documentation. Thus, new ideas and development options appear in place: 1 – usage of modern information systems, 2 – implementation of principals to reduce the quantity of pieces of legislation.

Information Technology

Systematization of pieces of legislation, which is conducted with high quality - is the key to effective enforcement - that is an axiom in legal science required no confirmation. However, the number of adopted legal acts, as well as uninterrupted amendments and changes to individual laws, affecting wording of laws and requiring their adoption, raises the question of the information technology implementation into the law-making process and codification.

Information legal systems became the basis of comprehensive information legal services since the 1990s. Automated systems for the registration of legislation are created and functioning in government bodies, organizations or being used by citizens.

Each piece of legislation before connection with the system is subject to certain stages processing. Current version of the legal act is formed by combination of the main legislative act’s regulatory legal provisions and the provisions of its subsequent legitimate amendments and additions. Use of automated systems simplifies legal enforcer’s comprehension of dozens of regulatory requirements for any matter set out in different legal acts. However, one’s should take into account, that the fundamental function of abovementioned systems - is legislation registration and incorporation. For the purposes of codification, they carry an assistive function making possible to simplify the process of searching for a legal act is subject to regulate certain legal relations and thereby to provide a qualitatively new level of information support in the law making and law enforcement process.

In our opinion, information technology for systematization of Russian legislation assists in performance of public function concerning legal information collection, processing, systematization, and use. It allows to conduct legislation analysis and to identify its need for update, systematization and gaps elimination with less cost within a shorter time.

Automated systems are the main assistant of the legislator due to their opportunity to help to find required information quickly when working out draft law (new acts), to identify existing shortcomings, gaps, duplications and contradictions. However, any process has its disadvantages, it is also subject to practical implementation of information technology. Financial expenses of databases updating, user’s choice of a certain information product, and massive array of statutory and regulatory documents leads to incorrect or inaccurate legal information obtaining. In this regard, the state faced the task not to improve codification process of pieces of legislation, but to reduce their number.

Principle one-in, two-out

In March 2017, at the meeting of the Government of the Russian Federation «project office» presidium, it was decided to introduce the principle of «one-in, two-out». This principle suggests one new requirement implementation, subject to two old ones annulment. The main purpose is to achieve mechanism of fast and irreversible outdated legal requirements annulment, as well as reducing their number. Primarily work on the principle application shall deal with most of supervision types, under which the requirements are subject to codification. Those requirements, suggesting significant risks and costs for business, will be updated as well.

It is currently planned to conduct outdated and redundant requirements and authorities analysis. One of the foremost conditions for the «one-in, two-out» principle application is indication of requirements being subject to annulment in each new legal act draft. Without fulfillment of this condition, it will be impossible to obtain the Ministry of Justice’s legal opinion.

To assess the efficiency of the principle to be implemented, we shall exercise foreign experience of its use, as well as the «softer» version - the «one-in, one-out» principle.

The «one-in, one-out» and «one-in, two-out» principles originated in the UK, and now are being actively applied in Canada and Australia, as well as in other countries. While the process of principles enforcement in countries mentioned above, both were revealed: advantages of their application, which include a significant decrease of duplicative or conflicting legal rules amount, and disadvantages. The latter include criteria according to which requirements for annulment are selected. Expenses are taken as a basis; however, there is no analysis on new proposed regulation potential benefits takes place. Complexity or impossibility of selecting the existing requirement for annulment also may serve as an obstacle. Lack of a standard costs model or its poor development lead to full impossibility of principles enforcement.

In Russia, since 2015, the «one-in, one-out» principle has been applied. However, about 53% (NISIPP analysis according to regulation.gov.ru data) of pieces of legislation do not contain references to the requirement to be abolished, though a positive opinion on the regulatory impact area (hereinafter - RIA) of the authorized body was obtained. A significant problem involves a requirement with a similar risk search. Nowadays, the principle is applied exclusively to draft legal acts with a high degree of impact only. This problem arises from the methodology for regulatory impact assessment inadequacy. Recommendations, which are included into the «Methodology for Regulatory Impact Assessment», approved by the Ministry of Economic Development’s Order from 27 May 2013, №290, are clearly not enough to compare with the requirements, their correct definition and description.

Thus, in our opinion, the «one-in, two-out» principle implementation into legislation is a time consuming process that may last for several years. It is necessary to carry out current pieces of legislation audit systematically for their detailed elaboration and achievement of the purpose - to reduce legal acts base and make it more comprehensible and transparent for business.

1 Gambarov U.S. The Course of Civil Law. V. I. General Part. SPB., 1911. P. 151-152.[ Russian: Гамбаров Ю.С. Курс гражданского права. Т. I. Часть общая. СПб., 1911. С. 151-152]