1.1 Concept of Legal Examination
The legislative process is a complex and publicly important activity, since its result is the laws (federal laws and laws of subjects Russian Federationsolutions to the meeting of deputies municipalities) - Regulatory legal acts of the highest legal forceregulating public relations. At various stages of the specified process (in the process of developing a bill, carry out the coordination procedure), legal expertise is held. Legal expertise It is also carried out in the case when the adopted law was rejected and then refined within the framework of conciliation procedures.
The results of legal expertise are very influenced by the further fate of the draft law. Before making a bill to the legislature, the author of the draft law can process it on the basis of the comments and proposals of the expert who conducted an examination. If the bill has already been submitted to the legislature, and according to the results of the legal expertise, this bill is inappropriate, then the author who made it is entitled to withdraw the bill until consideration in first reading to eliminate comments. The draft law may be rejected when it is considered by the legislative body due to the fact that the deputies relied on the results of the examination with a negative conclusion. In the event of a bill in the first reading, it can also be finalized by making amendments to it, which often includes comments and suggestions prepared according to the results of the legal expertise. Thus, legal expertise plays a significant role in the legislative process, allowing you to carry out a kind of interim control at various stages and stages of this process in order to make a qualitative law. It follows the validity, the importance and relevance of research in the field of knowledge of the essence of the legal expertise of bills and the definition of ways to improve its improvement.
The concept of "examination" occurred from the Latin "Expertus", which means an experienced, and is a study by a specialist (expert) of any questions, the solution of which requires special knowledge in one area or another. In relation to bills, various types of such studies can be carried out.
A special kind of research is the legal expertise of draft laws of the Russian Federation, the constituent entities of the Russian Federation, as well as decisions representative bodies municipalities. In the legislative process, legal expertise is a special study conducted in order to:
compliance of the draft law of the Constitution,
compatibility of the draft law with current legislation
establishing the quality of the bill in terms of rules of legislative technology.
Thus, legal expertise is carried out in order to assess the draft law on its compliance with federal legislation, the legislation of the constituent entity of the Russian Federation, municipal legislation, compliance with the rules of legislative legal techniqueconcerning the structure, construction, language of the presentation.
Anti-corruption expertise Projects of regulatory legal acts (on the example of the Legislative Duma of the Khabarovsk Territory)
Expert work is impossible outside the framework of a clear methodology that defines the goal, tasks, sequence, evaluation criteria, the presentation form and other parameters of the examination ...
State examination: Essence, types, functions, social importance
Expert activity refers to research activities. Expert conclusion and other results obtained during the implementation are the results of research activities ...
Ensuring the compliance of municipal regulatory legal acts by federal legislation and norms international law
The mechanism for ensuring the unity of the legal space should include the following elements: 1. Completion of the registration of the legislative framework on the most important constitutional legal institutions RF and its subjects ...
The concept, goals, objects of environmental impact and the procedure for its implementation
environmental Expertise Environmental Expertise - the establishment of compliance of documents and (or) documentation substantiated in connection with the implementation of the object of environmental impact of economic and other activities ...
Procedure for the production of expertise in civil Procedure
judicial Examination Civil Process The concept of "Expertise" (Expert from Latin. Expertus - who knows the experience, experienced, tested, proven) is used in science and practice to designate research ...
One of the main activities of the bodies legislative power The Russian Federation is lawmaking, which represents many processes, one of which is the legislative process ...
Legal expertise in the legislative process
The task of an expert when conducting an examination of the draft law is to give answers to questions set in front of him ...
Legal expertise in the legislative process
Legal expertise in the legislative process
The result of the legal expertise is to conclude it. Conclusion is an official document reflecting the result of the study ...
Legal expertise in the legislative process
In section 2 of the procedure for conducting an examination of the projects of municipal legal acts of the Leninsky municipal district, approved by the decision of the head of the administration of the municipal district of 23.03 ...
Application of special knowledge in criminal proceedings
Recognizing the necessary appointment forensic examinationThe investigator makes a decree on this, and in the cases provided for in paragraph 3 of part 2 of the Second Article 29 of the Code of Criminal Procedure, the Criminal Procedure Code of the Russian Federation of December 18, 2001 No. 174-FZ (ed. from 28.12 ...
Investigation and expertise of road traffic accidents
Autotechnical examination (ATE) - a special competent study of the technical condition of automotive vehicles (parts, mechanisms) in order to respond to a precisely defined question ...
Forensic examination
Judicial examination is one of the forms of using scientific and technical advances in a criminal, civil and arbitration process ...
judicial examination in criminal proceedings
federal Service For supervision of consumer rights and well-being
To study the problems of classification of expertise, the concept of examination should be considered before. The term "expertise" comes from Latin "Expertus", which means "experienced", "knowledgeable" ...
Introduction
Chapter 1. Public Expertise: Theoretical and Methodological Aspects
1.1. Public expertise and its role in social control system 13
1.2. Public expertise as an assessment of the probability of risk in social space 29
1. 3. Tunionia public examination of the laws --... 47
Conclusions on chapter 1 62
Chapter 2. Socio-organizational regulation of public expertise bills
2.1. Influence of public expertise on the quality of bills 69
2.2. Conceptual model of public expertise bills 93
2.3. Justification of the Mechanism of Public Expertise 116
Conclusions on chapter 2 142
Conclusion 155.
List of used sources and literature 162
Appendices 171.
Introduction to work
The relevance of research. On the modern stage The development of the Russian state, its comprehensive reform objectively increases the importance legislative support and public recognition of the conduct of transformations, effective socio legal regulation public relations. The creation of a legal social state is impossible without adequate formation necessary legal base new management system. Participation in the lawmaking of civil society institutions can give the necessary democratic basis by transformations. These elements of the legal democratic state are partially focused at the Social Institute of Public Examination of the proceeded bills.
In Russia, the process of expanding expertise is underway, the Public Chamber of the Russian Federation is being created, the mechanism of conducting a public examination is being implemented. These processes are objective and dictated by the need to reduce social risk when making decisions at various levels. government controlled to ensure the development of society and the state.
The problem is exacerbated by an increase in the complexity of choosing effective management decisions in the conditions of a systemic crisis due to the transition to new socio-economic relations. In such conditions, it is required, on the one hand, to maximize balanced decisions, and on the other hand, intensify the intellectual potential of the Company, to attract collective intelligence for an objective assessment of the current situation and find the most optimal measures to overcome the existing problems. In this sense, the concept of risk may be connected not so much with the danger assessment as with a chance, hopes for the new quality of the public device, the improvement of the lives of those social groups that are interested in developing a positive management solution for them.
A significant aspect of the examination process is the need to assess the likelihood of risk in the procedure for adopting the law. From here implies the relevance of the formation of the Institute of Public Examination, allowing
take into account the interests and needs of all social groups. It should be noted that a single risk level, which would be considered acceptable for all members of society, does not exist, which is explained by the diversity and complexity of social systems and differences in estimates of the risk of individuals and social groups. This approach will require the procedures of informed compromises associated with the lack of shared resources for the development of society.
According to the dissertation, the need to regulate expert activities on federal levelwhich could express the consolidated opinion of organized civilian structures on topical issues of state and social policy: priorities of lawmaking, federal programs and mechanisms for their implementation, issues of social reforms and the possibility of including the creative potential of civil initiatives.
The degree of scientific development of the topic. The multidimensity of the problem studied allows to conditionally divide the analyzed scientific literature on examination into several groups.
The first group includes work, considering features and practical approaches to the examination of official documents, including bills. The concept of examination in the scientific plan is most developed in relation to specific areas of human activity expressing, as a rule, a generic sign of the study (medical, judicial, appraisal, environmental impact assessment, etc.). Compliance with the requirements of social justice and quality of human life is devoted to work related to the conduct of environmental impact.
Federal Law "On environmental expertise"Determined the place of public environmental impact assessment in relation to the state:
public environmental expertise is carried out before or simultaneously with state environmental impact assessment. The law is first declared that the environmental examination may be subject to projects of regulatory legal acts, comprehensive and targeted federal programs, master plans for the development of territories, schemes for the development of the sectors of the national economy, etc. Scientific understanding of the place and role of public discussion and the examination of regulatory legal acts contributed to Works of leading lawyers (A. B. Vengerov, A. N. Goncharov, P. V. Kraschiennikov, Yu. A. Tikhomirov, Trubetskaya E. N., et al.) 2.
Increasing the interest of scientists and legislators to the problem of social structures in matters of defending their rights is quite brightly manifested by the example of tender examination. The subject of the examination was constitutional, labor, pension, family, criminal law, as well as laws related to the reproductive rights of women (E. A. Ballaeva, M. N. Baskakova, O. A. Voronina, E. I. Kochkin, T. A. Melnikova, L. S. Rzhanitsa, etc.) 3.
In a number of studies, it is necessary to start developing the theoretical foundations of expertise as the institution of civil society. The concept of "social expertise" is considered as a mechanism for social control, as an examination conducted with the participation of public (non-state) structures, an examination aimed at identifying and (or) expected social consequences (positive or negative) or reasons that prevent society's development4. These studies identified the initial
approaches to the Institute of Public Examination, but do not consider the methods and organizational foundations of it in conditions of democracy.
The second group includes the work of scientists involved in the problems of expertise as a tool of social control, as well as social partnerships, the responsibility of social constituents and the formation of anti-corruption mechanisms in the system of public administration (V. D. Citizens, V. S. Karpichev, Yu. V. Kolesnikov , B. V. Lyatov,
B. S. Nechiporenko, V. L. Romanov, V. I. Patrushev, B. T. Ponomarenko, V. G. Solkov, V. M. Sokolov, A. I. Turchinov et al.) 5.
The third group combines work in which the examination process is associated with risk assessment or a forecast of social consequences, with the choice of indicators and criteria for risk assessment, the likelihood of hazard (loss values, damage), risk classification (E. S. Barazgova,
C. M. Nikitin, K. A. Fefanov A. V. Mozhovaya, E. V. Shlykov, O. Yanitsky) 6. The new sound of the essence of the concepts of "risk", "crisis", "social space", "time" attach the approaches of the founders modern theory social self-organization that allows you to move from the topic of risk reduction to understanding of risk as a chance, hope for the purchase of a system of some new positive qualities, possessable advantages (V. I. Arshinov, O. N. Astafieva, V. G. Budanov, V. . Egorov, E. N. Knyazeva, S. P. Kurdyumov, G. Malinetsky, V. L. Romanov, V.I.
Shapovalov et al.) 7. Therefore, consideration of the examination process, taking into account the genesis of the future positive for a growing new and damage to the old, who has learned allows to create conditions for the dynamic development of the social system, to move from a subject of social act to a social actor.
Thus, the problem of consideration of public expertise has not yet found a solution social Institutecapable of improving the process of adopting a legislative decision, as well as a valid social control mechanism that ensures the democratic functioning of civil society.
The problem of the situation is the presence of contradictions between the needs of society in constructive tools of public expertise, which stimulates the positive dynamic development of the social system, and the lack of a scientifically based theory of public expertise of bills as a social institution, adequate to civil democratic society.
Object of research: Public expertise as a social phenomenon.
Subject of research: Public expertise of bills as a process of interaction between states and civil society institutions.
The purpose of the study is to identify the essence of public expertise as an integral element of law-conducting activities at the present stage of the development of the Russian state, the development of a mechanism for implementing a public expertise. The execution of the goal is carried out by solving the following tasks:
Analyze the essence of public expertise and identify its role in the social control system;
Investigate the public expertise of bills as an assessment of the likelihood of risk in social space;
Consider the process of institutionalization of public expertise;
Identify the influence of public expertise on the quality of bills;
Develop a conceptual model of public expertise bills;
Justify the mechanism of public expertise in the process of adopting socially significant state decisions.
Theoretical and methodological basis of the study. The author relies on the philosophical concept of the "risk society" associated with the problem of globalization (W. Beck, E. Hyddens) and a communicative approach to risk, building the correct system of "risk relationship" in a democratic society (N. Luman), as well as T. Weble's approaches about the creation and features of the functioning of social institutions, Spencer on the study of the interaction of social institutions as the main task of sociology, L. A. Vasilenko on the role of social expertise in the dynamic process of the formation of a civil democratic society. The work also used sociological, systemic, synergistic, structural and functional and activity approaches.
The empirical database of dissertation work was the results of sociological studies in which the author was directly involved:
- "Socio-organizational mechanism of functioning public service" The population survey was organized and conducted by the Sociological Center of Rags in the period from May 27 to 31, 2002 according to the questionnaires developed jointly by the Department of Social Systems and Anti-Crisis Department, the Department of Public Service and Personnel Policy and the Sociological Center for Rags. 1200 people have been interviewed aged 18 and older in 12 constituent entities of the Russian Federation on a representative all-Russian sample. Heads of IS.
following d. Soc. n., Professor V. L. Romanov; d. f. N., Professor V. E. Boykov. Index OMGSN -2002.
- "Socio-organizational mechanism of the functioning of civil service." The expert survey was conducted by the Department of Organizing Social Systems and Crisis Management and the Sociological Center for Rags in May 2002, 300 civil servants in 10 constituent entities of the Russian Federation were interviewed. Sampling representative by sex, age, official position. Heads of research d. Soc. n., Professor V. L. Romanov; d. f. N., Professor V. E. Boykov. Index in dissertation: OMGSE - 2002;
- "Problems of functioning of expert bodies with federal authorities". The expert survey was performed by the author in 2004. Members of public expert councils were interviewed: 100 representatives of public organizations and 97 representatives of the authorities. Index in dissertation: PFEO - 2004.
In the process of the study, a secondary analysis of research materials was carried out:
- "Democrats - Scholarships of Yeltsin" conducted by the Sociological Center of Rags. 135 civil servants were interviewed - participants in the program in Canada (May 2002). Sampling representative by sex, age, official position. DCE index - 2002;
- « Modern condition and actual problems Monitoring the right "conducted by the sociological service" Barometer ". 134 representatives of the expert community, executive and legislative bodies were interviewed. Heads of research Burbulis G. E., Savin M. S. (May 2004) Index of the UPP-2004.
The main results of the study obtained by the dissertation and their scientific novelty are based on the author's understanding of public expertise as a self-organizing social control system, intended for the adoption of socially responsible state decisions (laws), ensuring equal opportunities for the development of all citizens of the state. The scientific results of the author are to:
Formulation of the Objective of Public Examination of Powered Objects, which consists in establishing conformity between organics state power and the social interests of citizens, in the opening of possible (potential) changes social order (generated by the analyzed document) that destroy the current social norms and values \u200b\u200bor formative new social norms, more acceptable at the subsequent stage of development of social being;
Consideration of the public expertise of bills as a process of assessing the likelihood of risk, which binds to the value characteristics of social groups, allocating social actors that can make an assessment of socially significant state decisions, taking into account the ratio of categories of certainty-uncertainty, a responsible-irresponsible effect, with the development of proposals for the protection of the risk object (insurance) from possible dangers (vulnerability);
Justification of the process of institutionalization of public examination of draft laws as the necessary conditions for dynamic (positive) development legal state and democratic society. It is shown that public expertise is the process of coordinating the specific interests of social groups with the interests of civil society development;
Identifying the sociological component of social mechanisms for the interaction of social groups, assessing the impact of public examination on the quality of draft laws, the definition of criteria and classification of risks when making laws and other important government solutions for various social groups;
Development of a conceptual model of public examination of bills (procedures for achieving a social compromise in the process of coordination of positions between various social groups, the conditions for the functioning of this Social Institute, the principles of the selection of members of the expert commission, planning and perspective of the implementation of public expert activities, organizational basics her own);
Justification of the social mechanism of public examination of bills: technologies, stages and procedures for its conduct, ensuring equal conditions for the participation of all social actors in assessing the risk and related levels of vulnerability - government agencies, public associations and associations expressing the interests of the population. A "social passport of the draft law" is proposed as a document characterizing the quality of the text of the draft law.
The practical significance of the study is determined by the possibility of using theoretical conclusions and practical recommendations When reforming the system of the social structure of Russia. Conceptual model of public expertise of bills proposed by a applicant can be applied in research activities in the analysis of development prospects russian society. The results of the study can be used in the development of documents in the process of reforming the system of government in a democratic civil society, studying the problem of social control and public examination, reading training courses: "Sociology of Law", "Social Administration", "Management of Social Risks and Crisis", " Social politics"," Theory of State and Law "," Administrative Law ".
Approbation of research results. The results of the work were discussed and tested at meetings of the Department of Organization of Social Systems and Anti-Crisis Management of the Russian Academy of State
services under the President of the Russian Federation, at a meeting of the round table "Tender examination: forms of practical implementation", held by the Russian Academy of Public Service under the President of the Russian Federation together with the Ministry of Labor and social Development (Moscow, 2002), in the Civil Forum (Moscow, 2001), XI sociological readings (Moscow, 2004), round table In the State Duma "Public Chamber: problems and prospects" (Moscow, November 2004), and also reflected in the publications of the author. The dissertation is a participant in the study of "Gender Strategies of Russia", implemented by the Ministry of Labor and Social Development of the Russian Federation, the Canadian Agency of International Development Agency and the Carleton University, Ottawa (Canada, 2002-2004); "Socio-organizational mechanisms for the functioning of the civil service" (2003) and "Creating and improving the efficiency of activities structural units and commissions of state bodies; Increasing the prestige of the Federal State Service and federal civil servants, "conducted by the Russian Academy of Public Service under the President of the Russian Federation as part of the implementation of the Federal Program" Reforming the State Service of the Russian Federation (2003-2005). "
Public expertise and its role in the system of social control
The concept of "examination" has long been and is used in almost all spheres of life. The term "Expertise" (Franz Expertise, Lat. Expertus -ft) means a study by a specialist (expert) of any questions, the solution of which requires special knowledge in the field of science, technology, art "8. In the Brockhaus dictionary under the examination is understood as research and establishment For such facts and circumstances, to find out which special knowledge is needed in any science, craft or fishery. In the dictionary V. Daly under the expertise it is understood as the consideration of any business, questions of experts (knowledgeable persons involved in order to express their opinion and Give conclusion about some business, question) for giving conclusion.
Everyone's expertise is known for judicial, medical, scientific and technical, planning and economic, accounting, etc. For example, the conclusion of the forensic examination is one of the evidence in the case. Under the expertise it is understood as a study by specialists in a particular area (or a number of areas (comprehensive)), possessing special knowledge and practical experiences of processes, actions, structures, relations and other issues and giving expert assessment and expert opinion.
V. A. Lukov uses such an examination concept: "The study of a question that requires special knowledge, with a motivated conclusion." This definition is also contained in the dictionary of foreign words.
The definition of the concept of examination in a particular area should express a generic sign of the study, for example, medical examination - medical examination of insurers due to injury, resistant disorder of health, transferred to the disease in order to establish causal relationships, other identification of medical and insurance examination To identify the following - preliminary medical examination of persons who have expressed the desire to conclude a personal insurance contract in order to identify chronic and inventive diseases.
Evaluation Examination - Professional legitimate activities aimed at assessing the value of property or real estate, or fixed assets of the enterprise.
The famous term "judicial examination" in the legal encyclopedic dictionary is interpreted as follows: "A study conducted by an expert in the manner prescribed by procedural legislation, for the establishment of criminal, administrative, arbitration, or civil cases of actual data and circumstances, conducted on the basis of the decision by the investigator, the investigator, the prosecutor or the court on the appointment of an examination "10. For different types of forensic examination, developed special techniques, that is, a complex of methods that are implemented in a certain sequence (stages of the study, order of tasks, etc.). The object of forensic examination may be corpses, injury bodies, documents, the situation of the scene of any physical evidence and samples that are related to this case.
Forensic-medical examination - medical research and conclusion on special medical and biological issues arising in forensic practice.
So, the examination is an official study by a professional specialist of any object (themes, question), requiring special knowledge, with a submission of a reasonable conclusion.
Legal Encyclopedic Dictionary, M, 1999. P. 330 in relation to the topic of the study, consider the specifics of the concept of "social and social expertise", determined by the adjective "social".
L. Vasilenko represents this concept In several aspects, like:
Social control mechanism;
Examination conducted with the participation of public (non-state) structures;
Examination aimed at identifying and (or) expected positive or negative social consequences (changes of social factors), their dynamics, identifying the reasons that prevent society's development11.
Each of these aspects, separately considered, characterizes only a part of the specifics of the term. For example, in the project Federal Law "ABOUT social security and social development "Definition represents only the third of the allocated positions, defining this type of expertise, as an examination of new goods, services that appeared or expected on the social market, aimed at identifying the coming and (or) expected positive or negative social The consequences (changes of social factors), their dynamics, as well as the total quantitative (value) assessment of social security, the level of environmentality and product quality, social effect, or damage - the actual and (or) potential for the real scale of the effects of the consequences. The presented context of the examination is aimed at the forecast of social consequences (changes of social factors) - positive or negative - pronounced in the form of CO "Vasilenko L. A., Macagon P. P., Tadorashko K. P Interaction of municipal and government management structures with non-commercial public organizations . Samara, 2002. Future quantitative (value) assessment. "It is unlikely that such a representation is enough to determine the essence of the concept.
In this regard, in all likelihood, the introduction of the specialized regulatory expertise of all socially significant decisions is required for the fact that their implementation will not entail the consequences dangerous to society.
Influence of public expertise on the quality of bills
The issue of reducing the quality of legislation in recent years is discussed increasingly. Persons with legislative initiative, in particular, deputies State Duma Pretty often make bills and changes in existing laws, guided by the political conjuncture, and not necessity and appropriateness, without arguing and a thorough study of the social field of law enforcement practice and the legislative framework of international and domestic right, so often adopted laws do not correspond to the spirit of the times, social needs of society, contradict each other, the Constitution of the Russian Federation, international Documents, constantly subject to change, many are not used at all and, being taken, are not executed.
All these actions undermine the authority of the law, generate corruption in the highest echelons of power, collisions in law and confusion in law enforcement practice, and also reduce the effectiveness of lawmaking and exacerbate social tensions in the country.
Significant changes in public relations that occurred in Russia in recent years led to rapid activation legislative activity In the Russian Federation and the evolution of legislation. Since 1994, today, the President of the Russian Federation has signed more than 1770 federal constitutional and federal laws. Especially acute the problem of the quality of laws, which is a prerequisite for the recognition of the rules of law as common and existing rules behavior.
Adoption of the State Duma Federal Assembly The Russian Federation of Qualitative Laws, which can actually and effectively influence almost all areas of life, largely depends on the technology of drawing up bills, consistent use of the proven practice of the rules of legislative equipment and the social need for their adoption. The high level of legal and technical design of bills, clarity and clarity of their presentation should be effective tool Preparation of the most advanced and appropriate on the form and structure of bills that ensure the most complete and accurate compliance of the form of regulatory prescriptions of their content, light disorder regulatory materialThe availability of it for perception, exhaustive coverage of regulated issues, the consistency of the legislation system.
Currently, the State Duma is paid to considerable attention to the form of laws and their accuracy. The structure of legislation shall become more clear and uniform, the practice of canceling legislative acts is streamlined, making the necessary changes in them.
However, the positive processes of development of legislative equipment only emphasize the existing shortcomings of modern practices of legislative activities that adversely affect the quality and effectiveness of the laws taken. These disadvantages are associated with not always justified by the development and adoption of new laws and insufficient attention to the form of legislative acts taken, which often leads to the substantial incidents of Russian legislation.
Errors associated with the content and form of presentation of bills are still quite a lot and are explained in many ways insufficient developers experience. Often, technically spent bills containing inaccurate and vague prescriptions, contradictions and gaps are directed to the State Duma. Not all preparing bills are unified under the structure and style of presentation, comply with the current legislation, the unity of terminology does not always withstand. Many recently adopted laws suffer over an excessive declarativeness of the prescriptions, the lack of in some cases the 191-spent mechanism of action of its norms and ensure their implementation, which adversely affects the application of laws.
Unfortunately, there is currently no necessary normative base According to these issues.
Some issues relating to legislative technology should have been settled in the Federal Law on Regulatory Legal Acts, which was adopted by the State Duma back in 1996, and after adoption in the first reading was sent to refinement in the responsible committee. Currently, the Second reading is being prepared by the draft law on the procedure for adopting federal constitutional laws and federal laws, which also contains norms relating to the rules of legislative equipment and compulsory public discussion.
The quality of the law and the fulfillment of the set of requirements constituting the legislative equipment is the concepts of inseparable. In this regard, the problem of the presence of modern methodological rules, allowing the subjects of the law of legislative initiative and developers of draft laws to correctly focus on legislatively issues in order to ensure the quality of the law.
Russian legislation is quite unstable. More than two thirds, annually subscribed by the President of the Russian Federation of federal constitutional and federal laws constitute the laws on making changes.
With the role that laws play in the life of people, their quality issues are of particular importance. And not only certain assessments of the current and potential laws on certain criteria, but also the theoretical studies of a general nature, allowing to form a more holistic understanding of the quality and potential effectiveness of laws so that in the current legislative work does not miss any aspects, Prevent possible miscalculation. The quality and effectiveness of laws and their norms are devoted to a large number scientific work and a significant number of political documents. Our opinion comes down to the fact that as a systematic, comprehensive indicator of action legal norms It is possible to consider their optimality that constitute the concept of which are effectiveness, utility, efficiency and social value of the norms. Under the effectiveness of legal norms, the relationship between the goal and the result may be, while it is advisable to allocate two levels: legal efficiency (compliance with the behavior of the destination of the norm of regulations) and the social (degree of achievement of the social goal outside the direct sphere of legal regulation). At the same time, the utility (profitability) of the norms is estimated as the ratio of the intended and side results of their action, efficiency - as the value of the value of the result obtained and the amount of costs. Social value is defined as "General Democratic, Humanistic Orientation".
As elements of ensuring the perfection of legislation and improving its quality, we offer the following parameters:
Correct mediation in the prescriptions of socio-economic and political patterns of the development of society, including the accuracy of mediating the objectives of social development and compliance of the elected legal means goals;
Accounting in the normativity of general laws and management principles;
Accounting for the principles of a systematic approach;
Accounting of specific patterns of law and compliance with legislative equipment;
Conceptual model of public examination of bills
The mechanism of implementing a public expertise includes the conditions for the functioning of the emerging Social Institute of Public Examination, the principles of the formation of expert commissions, organizational basis for conducting public expertise - stages and order, allowing active social entities to ensure relatively equal conditions, emphasizing them with the status of social actors, risk assessment entities and related Vulnerability levels, planning and prospects for the implementation of public expertise, providing procedures for achieving a social compromise in the process of coordination of positions between different social groups. These components may be the components of the conceptual model of public expertise. Consider them in more detail.
Among the basic principles of the formation of expert commissions should be allocated as follows:
Professionalism of members of the expert commission;
Representation as part of the expert commission of specialists of different areas of knowledge;
The situation of the expert commission;
Inclusion in the expert committee of representatives of all interested social groups;
Voluntary participation in the conduct of expertise;
Openness of the procedure of public expertise, publicity, the obligation of publication both the results of the examination and the composition and the level of qualifications of its members, including detailed description Applied techniques.
Questions arising in the decision-making process with different branches of government at different levels often require the use of special knowledge in a particular area (right, economics, science, technology, art or crafts, etc.), these issues should solve individuals possessing Relevant special knowledge, professionally prepared precisely in the area, from the point of view of which is carried out by expertise. For example, if the examination is conducted medical, the leading experts are people who are the opinion of which in this field of medicine can be weighty.
At the same time, the Commission should include specialists from different knowledge areas, including those who speak the sociological methods of IC 94. On the qualifications of such experts, even incomplete listing of methods for obtaining quantitative and high-quality expert estimates can be said: Questioning, interviewing, focus groups, brain attack, commissions method, method of defense and variety, obtaining structured information (decisive matrices, forecast graphs, etc. .), Development of scenarios, forecasting, etc. There are also fairly powerful methods of processing and analyzing expert information: expert ranking; expert classifications; comprehensive expert assessments; multi-level estimated systems; Statistical methods for processing expert information. All this confirms the requirement of special training of specialists who qualify an expert.
It is unlikely that it will be correct if the implementation of the public examination will be rigidly regulated. So, in the draft federal law "On Social Security and Social Development", this question is proposed to be addressed as follows: on the one hand, the "social (public) examination is carried out by the decision of the permanent Federal Commission on the organization of the accreditation system for the right of social (public) examination , social audit and certification on social requirements (Federal Commissions for Social Accreditation): Social Development Centers, Advisory legal organizations, educational establishments, scientific organizations. "
On the other hand, the draft of this law provides that the Federal Social Accounting Commission is organized by the Government of the Russian Federation, and its composition is harshly determined later, if necessary, it is adjusted annually by selecting representatives from various departments, organizations and enterprises on professional and ethical criteria. The commission of the Commission includes the organization of preparation and approval of methodological materials, training, accreditation and the provision of methodological materials by accredited centers of social development, regular assessment, inspection 95 internal control of accredited organs and the efficiency of using methodical materials.
Such an inflexible approach, in our opinion, limits the role of the public in the social (public) examination, that is, "sociality" of this term may remain within the limits of the inspection for the forecast of the consequences for society negative in understanding executive power. It is probably not enough, since the real dependence of the process of forming expert organizations from state officialswhich, under various pretexts, may not allow the accreditation of an expert public organization, in spite of their settings on specific texts of the bills.
How to resolve this contradiction? First, consolidate the condition of inclusion in any expert commission at a certain direction (both state and public) only specialists who have the necessary qualifications confirmed by a document of an educational or scientific institution having state accreditation. Especially important when conducting public expertise, the creation of an expert commission, rationally selected and well-organized to solve problems posed before it, as well as inclusion in these processes of independent, honest and professional competent scientists. Secondly, the formation of the composition of the Expert Commission should be provided only at the time of working on a specific draft law.
Legal expertise bill - Special study carried out by special authority to the authorities and persons and intended to assess the quality of the bill, determining its compliance with federal legislation and the requirements of legislative technology. A type of examination of draft laws is the direction of the project to conclude various state and public bodies, whose profile corresponds to (either close) the design of the project. Examination is a prerequisite for the quality of laws, and, ultimately, the effectiveness of their action. The legal basis for the examination of draft laws is the Regulation of the State Duma. In particular, according to Art. 112 Regulations Legal administration of the State Duma apparatus on behalf of the Council of the Federation or the Responsible Committee in the period established by them implements the legal expertise of the draft law on the compliance of the Constitution of the Russian Federation, federal constitutional laws, federal laws, the main industry legislative actsAnd also checks the list of acts of federal legislation to be recognized by invalid, suspension, change, add-on or adoption in connection with the adoption of this draft law. The responsible committee may entrust the legal administration of the State Duma apparatus to conduct a linguistic examination of the draft law. Distinguish official and informal examination. Official expertise It is carried out according to bills registered in the State Duma, on the basis of the appeal to the expert organization of the authorized structures of the Parliament of the State Duma or the relevant Committee responsible for this draft law. Any research institutions can act as expert organizations, including international and foreign ones. Unofficial expertise It is carried out on the initiative of those who are not authorized by the Parliament of bodies and individuals, but equals the bills not registered in the State Duma, that is, not official recognition.
The purpose of legal expertise in the very general comes down to expert evaluation legal form The draft law regarding the requirements of the legislative technology. In reality, legal expertise of bills conducted by the legal expertise department of the legal administration of the State Duma office carry out what is called legal "finishing" of the draft law, thus improving the proper legal quality of project standards.
Regulatory norms provide for two cases mandatory Legal expertise: First, in the process of preliminary discussion of the bill and prepare it to the first reading (Part 1 of Art. 112 of the Regulations) and, secondly, immediately before the third reading (part 1 of article 124 of the Regulations). In practice, legal expertise is also conducted in the preparation of the bill to the second reading. In addition, in accordance with Part 1 of Art. 121 Regulations Responsible Committee is entitled to conduct independent examination amendments to the bill for their compliance of the Constitution of the Russian Federation and the Federal Law.
Along with the solution of the problems of ensuring the legal quality of the bill, legal expertise undoubtedly aims to improve the detention of the draft law, which is directly related to the problem of coordination of interest. In particular, in the process of conducting such an examination of a mandatory assessment at the pre-consideration stage, the subject of legal regulation submitted to the draft, the correspondence of the draft law of its content is estimated. Name of the law as mandatory requisiteis the initial unit of its meaning, a faithful search element of a document emanating from the state; It determines the scope of its action, serves as the main means of the right choice of legal instruments, an important means of introducing into a specific area or branch of law, facilitates accounting and systematization of legislation.
In the process of legal examination of the bill at the stage of its preparation for first reading, the goals of the future law, its main conceptual provisions, the adequacy of legal agents, the goals that follow from this law (bill), etc., are also apparent to the social sense of law, its social orientation What is important to solve the practical tasks of coordination of interests in the process of legislative activity. The peculiarity of the legal expertise of bills prepared for consideration in the second reading is to implement Legal control The apparatus of the State Duma of Available Expertise, and in the third - in determining possible internal contradictions and violations of the correct relationship of articles in connection with the changes (adopted by the amendments) entered into the text of the draft law when considering it in the second reading. All flaws should also be eliminated, since in the third reading it is not allowed to introduce any amendments to it and cannot be returned to the discussion of its individual sections, chapters, articles and bill in general.
Legal and linguistic examination of bills are designed mainly to promote the enhancement of the perfection of the law of the law. However, a legally perfect law (the law is perfect in terms of the requirements of the legislative technology) may be little suitable in the social sense. This happens in cases where the law enshrines the imbalance of social interests.
Since the legislator is constantly meeting with this problem, it is obviously a special mechanism, and the use of which would exclude deformation of interests in law. The decision of this problem could be facilitated by the introduction along with the already named types of expertise social expertise bills. The purpose of this kind of examination is to avoid objective legislative mistakes, thereby ensure the legal nature (nature) of the adopted law.
Draft Federal Law"About public Examination regulatory legal acts and projects of regulatory legal acts "
Chapter 1. General concepts
Article 1.Public expertise
1. This Federal Law establishes the legal and organizational foundations of the public expertise of regulatory legal acts and draft regulatory legal acts in the Russian Federation.
2. For the purposes of this Federal Law, under public expertise, the activities of individuals and non-governmental non-profit organizations (public and civil experts) are aimed at research, analysis and evaluation of regulatory legal acts and projects of regulatory legal acts for their compliance with the interests of personality, society and the state.
3. The action of this Federal Law does not apply to the provisions of regulatory legal acts and projects of regulatory legal acts containing information that make up the state secret.
Article 2.Legal basis of public expertise
The legal basis of the public expertise is the Constitution of the Russian Federation, federal constitutional laws, generally accepted principles and norms of international law and international treaties Of the Russian Federation, this federal law and other federal laws, regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, the regulatory legal acts of other federal government bodies, regulatory legal acts of state authorities of the constituent entities of the Russian Federation and municipal legal acts.
Article 3.Objectives and objectives of public expertise
1. The public expertise of regulatory legal acts and projects of regulatory legal acts is carried out in order to:
the realization of citizens of the Russian Federation enshrined by the Constitution of the Russian Federation the right to participate in the management of state affairs;
compliance with the rights and freedoms of man and citizen and ensuring the interests of associations of citizens in the legislative process;
enhance the effectiveness of current legislation.
identifying the provisions of regulatory legal acts and projects of regulatory legal acts contrary to the interests of the individual, society and the state;
evaluation of the social, economic and other consequences of the adoption of draft regulatory legal acts, as well as the implementation of regulatory legal acts;
development of recommendations to eliminate the identified deficiencies.
Article 4.Basic principles of public expertise
Public expertise in the Russian Federation is based on the following basic principles:
recognition, ensuring and protecting the fundamental rights and freedoms of man and citizen;
legality;
publicity and openness of the results of public expertise;
voluntary implementation of public expertise;
non-interference of government bodies, organs local governments and their officials in carrying out public expertise;
independence of experts;
objectivity and accuracy of expert opinions.
Article 5.Types of public expertise
The Russian Federation provides a mandatory public examination of projects of regulatory legal acts and initiative public expertise of regulatory legal acts and projects of regulatory legal acts.
Chapter 2. Mandatory Public Examination
Article 6.Combined public expertise
Mandatory public expertise is held in relation to draft regulatory legal acts affecting the implementation of the fundamental human rights and citizen in the fields:
social policies, labor and social security;
property public security and law and order;
security ambient and public health;
activities of public associations and other non-governmental non-commercial organizations;
interethnic and interfaith relations, national policies;
citizenship and migration;
election and electoral system;
budget and finance;
education, culture and mass sports.
Article 7.Subjects of mandatory public expertise
Mandatory public expertise can be carried out:
The Public Chamber of the Russian Federation and similar structures formed on the basis of the laws of the constituent entities of the Russian Federation in accordance with the current legislation;
Public councils and similar structures under the federal government bodies, the state authorities of the constituent entities of the Russian Federation, local governments;
citizens of the Russian Federation having higher professional education and work experience in one of the areas listed in Article 6 of this Federal Law, at least three years over the past ten years, accredited in subjects of the mandatory public expertise specified in parts 1 and 2 of this article;
non-state non-profit organizations registered in the manner prescribed by law and carrying out activities at least three years accredited in subjects of the mandatory public expertise specified in parts 1 and 2 of this article.
Article 8.Accreditation of public experts with public chambers (councils)
1. Citizens of the Russian Federation, as well as non-state non-commercial organizationsThe requirements of Article 7 of this Law are entitled to submit a notice of accreditation as a public expert not more than three areas listed in Article 6 of this Federal Law.
2. Public chambers (councils) accredit declared public experts in a notification procedure, subject to the compliance with the conditions specified in Article 7 of this Law.
3. Accredited public experts Public Chambers (Tips) are obliged to pre-notify them about meetings of expert groups and working commissions, as well as other events held for research, analysis and evaluation of regulatory legal acts and projects of regulatory legal acts; Provide the possibility of familiarizing public experts or their representatives with projects of regulatory legal acts, as well as other accompanying documents and materials.
4. Accredited public experts have the right to attend meetings, meetings and other events held by its accredited public chambers (councils), with the exception of cases when a decision was made to conduct a closed event due to the need to ensure state secrets.
5. Public chambers (tips) are formed, lead and place on their official websites on the Internet or on the websites of federal state authorities, state authorities of the constituent entities of the Russian Federation, local governments, under which they are formed, federal, regional and local accredited registries Public experts.
Article 9.The procedure for conducting a mandatory public examination
1. The state authority or local government is obliged to decide on the public examination of the draft regulatory legal Actaffecting questions in the areas listed in Article 6 of this Law within three days from the date of its adoption for consideration.
2. State authority or local government authority, who decided to conduct a public examination, sends the official notice to the relevant subjects of the mandatory public expertise (federal, regional or local), and also places on its official website on the Internet or publishes officials in the media Notice containing the following information:
the full text of the draft regulatory legal act, subject to public expertise, as well as accompanying documents for it;
name, location, postal address and email address, contact phone number Authority authority who has decided to conduct a public expertise;
deadline for public expertise;
the procedure for admission and consideration of expert opinions.
4. State authority or a local government body that has decided to conduct a public expertise, it is obliged to pre-notify the subjects of the mandatory public expertise on the meetings of expert groups and working commissions, as well as other activities carried out in order to study, analyze and evaluate regulatory legal acts and projects regulatory legal acts.
5. The deadline for the mandatory public examination cannot be less than fourteen days or be more than ninety days from the date of the official publicization of the notice specified in Part 2 of this article.
6. Non-state non-commercial organizations and citizens who are not accredited as public experts have the right to send federal bodies State power, state authorities of the constituent entities of the Russian Federation, local governments, who have decided to carry out compulsory public expertise, as well as subjects of compulsory public expertise their comments and suggestions regarding draft regulatory legal acts.
Chapter 3. Initiative Public Examination
Article 10.Subjects of Initiative Public Examination
Citizens of the Russian Federation, which have reached the age of 18, as well as non-state non-commercial organizations registered in the manner prescribed by law, have the right to implement the initiative public expertise of regulatory legal acts and draft regulatory legal acts as civil experts.
Article 11.Procedure for the initiative public examination
1. The civil expert has the right to implement the initiative public expertise of the current regulatory legal act affecting the fundamental human rights and a citizen, and place its conclusion on the Internet for universal familiarization.
2. The civil expert has the right to send a request to the state authority or body of local self-government on the initiative public expertise of the draft regulatory legal act affecting the fundamental human rights and a citizen, within ten days from the date of receipt of a civil expert request for a public expertise of the draft regulatory legal Act, developed either under consideration by this authority or local government, the latter is obliged to submit a request to the initiator full text of the draft regulatory legal act and the accompanying documents for it, or place these materials on its official website on the Internet, indicating the period for consideration of the draft regulatory legal act by this body.
Chapter 4. Procedure for registration and consideration of the results of public expertise
Article 12.Expert conclusion
1. Conclusion According to the results of public expertise, should contain an indication of the provisions of regulatory legal acts or projects of regulatory legal acts, contrary to the interests of the individual, society and the state, and recommendations on the elimination of these contradictions. The conclusion may also contain an assessment of the social, economic and other consequences of the adoption of the draft regulatory legal act.
2. The expert opinion should not contain information violating the current legislation and generally accepted moral norms.
3. The expert opinion that meets the requirements of this Law is subject to compulsory placement on the Internet on the official website of the authority that made the decision to conduct a mandatory public examination or received an expert opinion of a civil expert.
Article 13.Consideration of expert opinion by authorities
The conclusion according to the results of a public examination is a recommendatory nature, but is subject to compulsory consideration by the authority of state power or by the local government authority, who appointed its holding, or received an expert opinion of a civil expert, no more than a thirty-day period from the date of its receipt. According to the results of consideration, a motivated response is sent to the subject of public expertise, and is published on the Internet on the official website of the relevant state authority or local government, except in cases where the conclusion does not comply with the requirements established by Article 12 of this Law.
Article 14.Entry into force of this Federal Law
1. This federal law enters into force on the day of its official publication.
2. Suggest to the President of the Russian Federation bring their regulations In accordance with this Federal Law.
3. The Government of the Russian Federation within six months will bring its regulations in line with this Federal Law .
President of Russian Federation
D. Medvedev
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The draft federal law was prepared by a non-profit partnership "Lawyers for Civil Society" and a discussion was held at expert meetings in Moscow on April 29, 2010 and in St. Petersburg on May 12, 2010.