The concept of “legislative technology” is derived from two components - “technology” and “law”. In the explanatory dictionary of the Russian language S.I. Ozhegov and N.Yu. Shvedova understands the word “technique” as a set of techniques used in some matter. IN AND. Dahl understood technology as knowledge, skill, work methods and their application to business, everyday life, dexterity. In a large encyclopedic dictionary, legal technique is understood as the total connection of certain techniques used both in developing the content and structure of legal norms of the state, and in implementing them.

A. Nashits characterizes legislative technology as a set of methods and techniques designed to give an appropriate form to the content of legal norms. VC. Babaev argues that legislative technique is a set of rules and techniques for preparing, forming and publishing normative legal acts. According to K.K. Panko, legislative technique is “a set of certain means, techniques, rules, determined by the laws of development of the legal system, used in legislative activity in order to ensure the high quality of its results.”

The presented positions of the authors indicate that among legal scholars there is no single position regarding the essence of the concept of “legislative technique”. Moreover, this term is often identified with the concept of “legal technique”.

According to V.M. Raw, the position according to which “legislative technique is part of legal technique” is controversial. S.S. Alekseev understands legal technology as “a set of means and techniques used in accordance with accepted rules in the development and systematization of legal (regulatory) acts to ensure their perfection.” V.F. Lapshin defines legal technique as “a set of means, techniques and rules developed in the process of scientific study and practical application, which are used by authorities state power and management, as well as by citizens when carrying out law-making, law-interpretation and law-enforcement activities within their competence.” In turn, A.P. Kuznetsov and I.N. Bokova note that “in terms of its content, the concept of “legal technology” is broader than the concept of “legislative technology”, since it carries more deep meaning» .

It is worth noting that recently opinions have been expressed about the uselessness of the term “legal (legislative) technique”. So, G.I. Muromtsev believes that the concept of “legislative technology” is ambiguous, which makes its use as a scientific term problematic. In this regard, V.M. Baranov notes that “the term legal technique is inaccurate, deeply contradictory and is used only due to legal tradition.” V.N. Kartashov considers it correct to operate with the concept of “legal technology”, the components of which he refers to: legal technology (as a system of appropriate means), tactics (as a system of techniques, methods and methods of optimal legal activity), legal strategy (as scientifically based principles, long-term plans, forecasts and methods of activity).

As for the legislation of foreign countries, there is also no unanimity in the interpretation of the concepts under consideration. For example, in countries of the Anglo-Saxon legal system, the concept of “legislative technique” is often used, “which is found at every stage of the legislative process (from legislative initiative to the publication of an adopted and approved law).” In turn, legal scholars from countries of the continental legal system differentiate between the concepts of “legal” and “legislative” technology, simultaneously using both terms. Meanwhile, there are also opposing positions. Thus, M. Oriu denies the concept of “legal technique” as inadequate to the importance and significance of law.

It seems that the identification of legislative technology with legal technology is not entirely accurate. The following arguments are given in favor of this: firstly, legal technology is a broader category in subject matter, since it covers the process of “making” not only laws, but also other regulations; secondly, it is related to lawmaking, interpretative practice, and law enforcement activities. Therefore, it is worth adhering to the opinion established in the legal literature that, in relation to criminal legislation, it is most appropriate to use the concept of “legislative technique” rather than “legal technique”.

Often in legal literature, legislative technique is divided according to content into legislative technique in the narrow and broad sense of the word. Thus, A. Nashits notes that in a broad sense, legislative technology includes “both the development of decisions on the merits and the development of solutions, usually called technical decisions. In other words, it covers operations for the preparation of legal norms from the point of view of their essence, their content, and operations through which decisions on the merits acquire their specific form of expression.” J. Dabin believes that the concept of “legal technology” consists of the following stages: scientific research, when a search for solutions is carried out on the merits, and technical construction, when these solutions are put into a form that is convenient for their perception by public life. VC. Babaev connects the understanding of legislative technology with a set of rules and techniques for the preparation, formation and publication of normative legal acts.

A narrow understanding of legislative technology correlates with the stage of “the actual technical construction of norms with its inherent technical means and techniques, because otherwise it would be impossible to understand how the specific techniques with the help of which the rules of behavior formulated by the legislator on the basis of knowledge and assessment of law-forming factors receive specific expression and specific functional ability."

Recently, in the legal literature, the most acceptable point of view has become “the need to adhere to a narrow understanding of legal and legislative technology, excluding the procedural aspects of one or another stage of the law-making process.” In this regard, S.S. Alekseev understands legal technology as “a set of means and techniques used in accordance with accepted rules in the development and systematization of legal (regulatory) acts to ensure their perfection.” According to K.K. Panko, “in the definition of the concept of legislative technology, contrary to its traditional understanding, only those features should be reflected that give grounds to call it legislative.”

The correct view seems to be that the concept of legislative technology in the narrow sense of the word “most adequately reflects its essence and significance in rule-making and law enforcement activities, including in the field of criminal law. It is unacceptable, on the one hand, to expand its scope due to provisions of an organizational-procedural (procedural) nature, and on the other hand, to limit it to the verbal and documentary form of one or another legal regulation or to the structure (structure) of a normative legal act and its components ".

The question of the components of the concept of “legislative technique” is no less debatable. So, according to K.K. Panko, the essence of legislative technology is a set of certain means, techniques and rules used in legislative activity. Moreover, the author divides the means of legislative technology into two groups: 1) means of structure, which are called rules, techniques and methods; 2) means of language, which include terms, concepts, definitions, definitions and other linguistic rules of legislative technology. A.V. Ivanchin believes that the primary components of legislative technology are means, techniques and rules. S.S. Alekseev notes that in the theoretical interpretation of legal (legislative) technology it is necessary to put forward its substrate, “so to speak, its substantive side - means, and after that, techniques.”

Without going into a terminological dispute, it should be noted that the main components of legislative technology are means and techniques. As for the rules of legislative technology, their classification as elements of legislative technology is not entirely correct, since in this case we mean rule-making and law enforcement technology, which “characterizes the use of technical means and techniques related mainly to the external form.” However, it is worth agreeing with A.L. Santashov is that technical rules in relation to technical means and techniques are secondary components. Meanwhile, this circumstance does not provide grounds for excluding technical rules from the content of legislative technology, since the quality of the latter directly depends on what rules are used when applying technical means and techniques.

Legislative techniques are intangible instruments used in the creation of law. VC. Babaev includes axioms, legal constructions, legal presumptions and fictions. In turn, E.V. Ilyuk, in relation to criminal law, identifies such means of legal technology as legal structures (models) and terminology. According to S.S. Alekseev, technical means in law are terminology (language) and legal constructions. Yu.V. Gracheva considers legislative structures, fictions, criminal law presumptions, legal terminology and definitions as means of legislative technology. E.V. Krasilnikova argues that the legislator, when creating norms of criminal law, used such technical means as legal language, legal constructions, presumptions, legal axioms, fictions, legal symbols.

Without being able to go deeply into this dispute, it should be noted that in relation to the current state of the general theory of Russian law in the science of criminal law, it is necessary to operate with the following means of legislative technology: axioms, presumptions, fictions, the language of criminal law, legal constructions, symbols.

Most often in law, an axiom is understood as a truth that does not require proof due to its obviousness; the most stable rules, unchanged in their content, developed by socio-historical practice. A number of scientists have a negative attitude towards the presence of axioms in law. So, for example, A.F. Cherdantsev believes that “law, even built on a scientific basis, is not a scientific theory, but a normative system. Its primary elements - norms cannot be considered as axioms or theorems, not only because these are not judgments, but also because some of them (axioms) do not serve to prove others (theorems), and these latter do not require proof, because they fully formulated by the legislator."

Meanwhile, the overwhelming majority of legal scholars admit the existence of axioms in law. So, S.S. Alekseev understands axioms in law as provisions that have the character of initial truths and do not require special proof in each case. In addition, the author notes that the objective basis of legal axioms is rooted in patterns, the properties of special legal principles of law, and departure from them, their non-compliance can lead to the fact that law loses its features of will elevated to law, i.e. ceases to be a right. According to V.N. Kudryavtsev, axioms are “the basic provisions and definitions of legal science. They do not raise doubts and do not allow other interpretations. From them, all other categories of legal science are logically deduced, on their basis, they are determined and developed.” To the general features of the legal axiom of V.I. Kaminskaya believes that these are self-evident truths that do not require proof, resulting from the generalization of centuries-old experience public relations and human interaction with the environment. According to L.S. Yavich, axioms are ideas of legal consciousness, the truth of which does not require special evidence and which serve as ideological prerequisites for the principles of law. A.I. Ekimov believes that axioms are generally accepted requirements of justice, which, from a moral point of view, must certainly become part of the current law. In his dissertation research on legal axioms, A.V. Maslennikov distinguishes axioms in law, axioms of law and axioms of the science of law. Thus, by axioms in law, the author understands “knowledge about the phenomena of the natural and social environment, accepted as true and involved, if necessary, in the process of legal regulation (in the creation, interpretation, implementation of legal norms) and in legal research.” Axioms of law, according to the author, are “ideal fragments of legal matter, which are “clumps” of legal experience, objectified in legislation, and law-making, and law-implementing practice without assessing the truth.” A.V. Maslennikov defines the axioms of the science of law as “scientific provisions, which in logical and methodological terms represent an element of the theoretical basis of scientific theories - the basic, initial provisions necessary for the construction of a given theory, and in the content - the initial theories that fix the most important connections and relationships between the main concepts."

Based on the positions and opinions of legal scholars presented above, it is worth noting that axioms are indeed inherent in law. Legal axioms are manifested in legislation, “objectified in legal norms and principles.” However, legal axioms establish only the most general rules, and therefore are always broader in content both norms and principles.

The main features or properties of legal axioms include, firstly, their truth (evidence), i.e. an axiom is a generally accepted position that does not require proof. Secondly, the axiom represents a centuries-old tradition, i.e. a judgment that has emerged as a result of a generalization of centuries or even thousands of years of experience. Legal axioms “express continuity in the dialectical development of law from one historical type to another.” Thirdly, most legal axioms are characterized by universality, i.e. a rule of conduct that is true is accepted as generally accepted not only in any one individual state, but is such in the majority of states of at least a given legal family. Fourthly, it should be noted that the axioms reflect the rules of morality and justice. Axioms are “generally accepted requirements of justice, which from a moral point of view must certainly become part of the current law.” And fifthly, in the field of law-making, legal axioms are used as a method of legislative technique that allows one to rationalize terminology, as well as explain the content of legal norms, procedural actions and court decisions in accordance with the logic of law.

Presumption in Latin means an assumption based on probability. Most researchers agree that the content of the presumption is facts and assumptions of a probabilistic nature, based on knowledge of the connection between similar objects and phenomena and expressed in the form of a directly affirmative/negative conclusion that can be contested. “At the same time, contestability as the possibility of raising a doubt can be considered as a circumstance limiting the scope of use of presumptive provisions.” At the same time, it should be noted that there are opinions about the impossibility of the existence of presumptions in criminal law (M.S. Strogovich and others).

Many lawyers who have studied legal presumptions formulate their own definitions of this concept. So, N.F. Kachur proposed to consider a presumption “an assumption enshrined in the rules of law, which acts as a prerequisite for establishing (non-establishing) one legal fact in the presence of others, and in some cases, replacing a legal fact, entailing certain substantive legal consequences.”

Ya.L. Shtutin understood by presumptions any assumption, whether legal or factual, solely as a logical method of inference with the help of which one can deduce the existence (non-existence) of an unknown sought-after fact from another reliable known fact, if the unknown sought-after fact, by assumption based on generalizations of practice, is direct cause (consequence) of a reliably known fact.

SOUTH. Zuev acknowledges the existence of presumptions in criminal law. So, according to the author, the criminal presumption is:

• - an assumption enshrined directly or indirectly in criminal law about the presence (absence) of a legally significant fact or circumstance;
• - based on the pattern of connection between facts and circumstances similar to the expected and actual;
• - a phenomenon confirmed by law enforcement practice;
• - entailing criminal legal consequences.

In the legal literature, many classifications of presumptions have been proposed. So, I.A. Libus divides them into factual (natural) and legal (legal), refutable and irrefutable. I.I. Malkhazov classifies the types of presumptions as everyday (generally accepted) and legal, disputable and indisputable. SOUTH. Zuev classifies presumptions into those indirectly and directly enshrined in the law; industry-wide, inter-industry, sectoral; refutable and irrefutable; other varieties.

Based on the foregoing, it should be noted that in the legal literature there is no consensus on the issue of classification of presumptions. Meanwhile, most scientists tend to distinguish two classifications of presumption: rebuttable and irrefutable; indirectly and directly enshrined in law.

As the main features of the concept under study, most authors name the probability of a presumption of a position accepted as truth. Moreover, such a probability should be taken for granted. The second feature, according to most authors, is the normative consolidation of the presumption. Lately everything higher value acquires such a property of presumption as its effectiveness. Most authors agree that the effectiveness of a legal presumption is such a property of the latter, which is expressed in the balance of the goal of the presumed provision enshrined in the rule of law and the means of achieving it.

K. K. Panko, not without reason, believes that in criminal law there are the following presumptions: 1) presumption of knowledge of the law; 2) presumption of innocence; 3) presumption of truth court decision; 4) presumption of tort liability; 5) presumption of sanity; 6) presumption of increased social danger of the act and the person who committed it (in complicity, in case of relapse, in aggravating and qualifying circumstances); 7) the presumption of reducing the social danger of the crime and the identity of the perpetrator (when committing a crime for the first time, in conditions state of emergency, under extenuating circumstances, etc.); 8) the presumption that a person has lost a public danger (due to reconciliation with the victim, the expiration of a certain time from the moment the crime was committed, etc.).

Fiction translated from Latin means fiction, fabrication, non-existent, imaginary, false position. In the explanatory dictionary of S.I. Ozhegov, fiction is understood as a deliberately created, fictitious position, a construction that does not correspond to reality, as well as a fake.

As rightly noted by K.K. Panko, legal fiction exists in two versions:

• - as a method of legislative technique, which consists in recognizing the non-existent as existing and vice versa;
• - the property of a rule of law not to meet the needs of society.

Moreover, as a method of creating a legislative norm, fictions, according to the author, “are mandatory instructions and for their object of regulation they isolate those circumstances that are in a state of irreparable uncertainty, giving them the meaning of legal facts.”

A.I. Sitnikova understands legislative fiction as “a technical-legal technique, the application of which leads to the creation of legal norms containing deliberately conventional legislative formulas that do not correspond to reality.” O.A. Kursova believes that legal fictions are “one of special means legal technique, with the help of which something that in fact may be false is accepted as reality.” Legal fiction is also understood as “an indisputable provision deliberately created by a law-making body, which may not correspond to reality and which is imperatively contained in the rules of law in order to cause certain legal consequences.”

Within the framework of the ongoing research, legal fiction is of interest precisely as a method of legislative technique, the essence of which is to recognize the non-existent as existing and vice versa.

In the system of means and techniques of legislative technology important place devoted to such a means as the language of the law. The following basic requirements are imposed on the language of law: simplicity and clarity of legal regulations, accuracy of presentation of the legislator’s thoughts, conciseness and consistency of presentation of legal information, standardization (presentation through established word formations tested by practice), emotional indifference. A legal term is a word (phrase) used in the field of legislation and is a generalized name of a legal concept, which has the following properties: semantic unambiguity and certainty, functional stability, professional level of word use^.

The peculiarity of the definition of a special name as an element of the terminological system of any theory, including the theory of criminal law, lies in the maximum abstractness and generality of the named object of thought. This terminological property allows the use of a word (unit of language) as an adequate special designation for phenomena, objects and signs of the surrounding reality.

The terms of criminal law denoting the types of criminal acts included in the titles of chapters and articles of the Criminal Code refer to the situation of the crime as a whole with all its components: an action (inaction) prohibited by law; an object; subject; subjective side, method of action.

Until recently, little attention was paid to legal structures. Thus, if many works are devoted to the study of the concept, essence and types of corpus delicti, then the issues of constructing this very corpus delicti are often left unattended by legal scholars. But it is the criminal legal structure that serves as the basis with the help of which the corpus delicti is formed. A criminal legal structure is nothing more than “ready-made standard samples, schemes in which normative material is clothed.” K.K. Panko defines legal structures as a means of legislative technology as a complex of legal means that form typified models corresponding to the varieties of social relations. According to A.V. Ivanchin, “a criminal legal structure is a means of internal legislative technology, which is a structural model of a group of homogeneous legal phenomena, a certain combination of elements of which the legislator fills with legally significant information, thereby regulating the corresponding type of these phenomena in criminal law.” Criminal legal structures “contribute to the complete, problem-free, clear settlement of certain social relations or their elements.” As rightly noted by A.F. Cherdantsev, the criminal legal construction of a crime “includes four parts (object, objective side, subject, subjective side), divided into elements (the objective side, for example, includes the act, consequences, the connection between the act and the consequences, method, tools, setting , place and time). At the same time, some of these elements can be divided into more fractional elementary units (elements of the second order).

In the Big Russian Encyclopedic Dictionary, the word “symbol” is defined as follows: “the same as a sign; characterization of an artistic image from the point of view of its meaningfulness, its expression of a certain artistic idea." O.E. Spiridonova rightly notes that in the science of criminal law there are symbols - objects of a crime, which should be understood as a conditional material carrier (sign) in which the content of the subject of a crime is objectified.

As for the system of legislative techniques, lawyers also do not have a single established point of view on this issue. Thus, R. Iering identifies three main techniques of legal technique: legal analysis (alphabet of law), logical concentration, legal construction. According to A.V. Ivanchin, techniques of legislative technique are “methods of constructing normative regulations, including those combined with the use of a certain means (techniques of notes, definitions, directly defined and referential techniques).”

In turn, K.K. Panko notes that “when constructing individual articles of the criminal law, the best is the mixed formal-evaluative (constructive) method developed by legislative practice, which presupposes the consistency of norms in the system of criminal law.” A.V. Denisova proposes to include the following among the methods of legislative technique: abstract, casuistic, direct, blanket and reference, as well as methods of definition and methods of note." In the legal literature, other methods of legislative technology are also called, namely unification and clause.

It seems that, taken together, all of the above points of view make it possible to create a holistic system of legislative techniques, which the author will use in the future when studying the rules on an unfinished crime. The elements of this system are the following methods of legislative technique: abstract, casuistic, direct, blanket and reference, definitions and notes. However, as rightly noted by L.L. Kruglikov, as the theory of law develops, researchers will identify other means and techniques - both those already actually used by the legislator, and those that can be used for legislative consolidation, legal expression of the will of the legislator.

• See: Ozhegov S.I., Shvedova N.Yu. Explanatory dictionary of the Russian language. M., 1997. P. 797.
• See: Dal V.I. Current dictionary of the living Great Russian language: in 4 volumes. M., 1882. T. 4. P. 404.
• See: Big Encyclopedic Dictionary / ed. AND I. Sukhareva, V.D. Zorkina, V.E. Krutskikh. M., 1998. P. 782.
• See: Nashits A. Lawmaking. Theory and legislative technology. M., 1974. P. 144.
• ? See: Babaev V.K. The theory of Soviet law in lecture notes and diagrams: studies, manual. Gorky, 1990. P. 60.
• Panko K.K. Fundamentals of legislative technology in criminal law of Russia: theory and legislative practice: abstract. dis. ...cand. legal Sci. Saratov, 2006. P. 23.
• See, nair.: Babaev V.K. Decree. op. P. 68; Vlasenko N.A. Fundamentals of legislative technology. Practical guide. Irkutsk, 1995. P. 70; Kerimov D.A. Culture and technology of lawmaking. M., 1991. P. 12.
• See: Syrykh V.M. Subject and system of legislative technology as an applied science and academic discipline // Legislative technology of modern Russia: state, problems, improvement: collection. Art. / ed. V.M. Baranova: in 2 volumes. N. Novgorod, 2001. T. 1. P. 15.
• Alekseev S.S. General theory rights: in 2 volumes. M., 1982. T. 1. P. 267.
• Lapshin V.F. Legal and legislative technology: issues of correlation and application in criminal law // Man: crime and punishment. 2009. No. 1. P. 90.
• Kuznetsov A.P., Bokova I.N. Methodological foundations of legal technology in modern Russian criminal law // Bulletin of Nizhny Novgorod State University. Series "Law". 2003. Vol. 2. P. 299.
• See: Muromtsev G.I. Legal technology: some aspects of the content of the concept // Problems of legal technology. N. Novgorod, 2000. P. 24.
• Baranov V.M. Preface // Problems of legal technology. M., 2000.S. eleven.
• See: Kartashov V.N. Legal technology, tactics, strategy and technology (on the issue of correlation) // Problems of legal technology: collection. Art. / ed. V.M. Baranova. N. Novgorod, 2000. P. 22.
• Lapshin V.F. Decree. op. P. 89.
• See about this: Kuznetsov A.P., Bokova I.N. Decree. op. P. 299.
• See: Kruglikov L.L. On the concept of legislative technology // Problems of the theory of criminal law. Yaroslavl, 2010. P. 85.
• Right there. P. 90.
• Nashits A. Lawmaking. Theory and legislative technique. P. 138.
• See: Daben J. Technology and development of law. Paris, 1935. pp. 58-62.
• See: Babaev V.K. Decree. op. P. 68.
• Nashits A. Decree. op. P. 138.
• Kruglikov L.L. Decree. op. pp. 90-91.
• Panko K.K. Decree. op. P. 22.
• Kruglikov L.L. Decree. op. P. 92.
• Panko K.K. Decree. op. P. 23.
• See: Panko K.K. Decree. op. P. 26.
• See: Ivanchin A.V. Criminal legal structures and their role in the construction of criminal legislation: abstract of thesis. dis. ...cand. legal Sci. Ekaterinburg, 2003. P. 11.
• Alekseev S.S. Decree. op. P. 267.
• Gorshenev V.M. Methods and organizational forms of legal regulation in a socialist society. M., 1972. S. 248-249.
• See: Santashov A.L. Execution of deprivation of liberty in relation to minors: issues of legislative technology and differentiation of responsibility: dis. ...cand. legal Sci. Yaroslavl, 2006. P. 66.
• See: Ivanchin A.V. Decree. op. P. 11.
• See: Babaev V.K. Legal system of society // General theory of law: courses / ed. VC. Babaeva. N. Novgorod, 1993. P. 100.

2.1. The concept, subject and method of legislative technology as a methodology.

The concept of “Legislative technique” can be given many definitions. This diversity is explained by the fact that different researchers have different understandings of the essence of legislation, its role in the implementation of legal regulation, the essence and forms of legislative influence on the behavior of individuals and on social relations in general. However, regardless of theoretical settings, legislative technique can be considered as:

1. Methodology (system of techniques and methods) of lawmaking;

2. System of knowledge about this process;

3. Academic discipline (the essence and significance of which were revealed above);

4. A system of legal norms regulating the process of creating normative legal acts.

Let's start by defining legislative technique as a methodology.

Any technology can be defined as a set of means of human activity created for the most effective implementation of creation, activities related to the creation of something necessary for the normal functioning of people. Legislative technology is associated with such a specific type of human activity as lawmaking, the process of creating normative legal acts through external expression and formal consolidation of legal norms.

Legislative technology can be defined as a system of techniques, methods, methods and principles for creating and changing a system of normative legal acts . This broad definition allows us to include in the concept of legislative technology the entire process of forming a legislative system: methods of formulating regulatory legal regulations and presenting them in text form, and the process of developing draft regulatory legal acts, and procedures for their adoption, and methods for improving them, and methodology bringing them into line with each other, and their systematization, and social factors influencing the legislative process and much more. Such an integrated approach allows us to study lawmaking and legislative regulation of social relations as a single system of interconnected and interdependent elements, which is an integral part of the legal system of society. This makes it possible to take into account all, without exception, aspects of the technology for preparing laws and regulations, not to miss any of the factors influencing this process, and is a guarantee of the completeness and reliability of the research and the truth of the conclusions made on the basis of these studies.

It is possible to give another, narrow definition of legislative technique as systems of techniques and ways of presenting the meaning of a rule of law in articles of a normative legal act. This definition refers to legislative technology only the methodology for the formation of a specific normative legal act, its structuring, the presentation of its text, regardless of the factors influencing the work of its authors. This approach allows us to study in more detail the technique of formulating a specific legal regulation, creating a specific act of legislation, but does not make it possible to study the entire process of lawmaking in a complex, does not take into account the systematic nature of legislation, and excludes factors affecting the activities of the legislator from the range of issues being studied. It seems that a narrow approach, a narrow definition of legislative technology is not suitable for professionalizing the work of a participant in the legislative process, whose activities are only an integral part of a complex complex of formation of a unified system of legislation, none of the elements of which can exist and act independently.

Legislative technology should be studied precisely as a set of principles and techniques of lawmaking, a unified process of creating a system of normative legal acts.

The activity of the legislator is determined, first of all, by his main task - to formally express and consolidate the rule of law in the law to create and change the legislative system, forming its elements. Therefore, the main subject of influence of legislative technology as a methodology, the sphere of life for which legislative technology offers a system of methods, is such a special type of creative, conscious and socially significant activity as lawmaking .

Legislation can be defined as the process of creating a system of legislation, expressed in external expression and formal consolidation of the rules of law in regulatory legal acts. This process includes legislative knowledge, creation and systematization of normative legal acts (legislative process) and the study of the results of the impact of these acts on social relations.

Lawmaking (like any creative creative process) is characterized by the organic unity of its three main components, which the science of legislative technology studies:

cognition– awareness of the objective social necessity underlying legal regulation, comprehension of social required option behavior of participants in public relations, which should become the goal of legal regulation, understanding the essence of the rule of law to be embodied in legislation;

activity - legislative process, a system of procedures for the creation of normative legal acts, their adoption, amendment and systematization, as well as the relations accompanying these procedures;

analysis of results– assessment of the regulatory capabilities and significance of the created legislation, analysis of its consequences from the point of view of objective social necessity.

These three components in their dialectical mutual transitions constitute a relatively complete and logically unified cycle of lawmaking. In order for legislation to adequately reflect objectively existing norms of law and processes occurring in society, it is necessary to constantly discover, study and skillfully use objective laws that guide these processes. That is why, in order to effectively create a system of normative and legal acts from a regulatory point of view, it is necessary to understand the objective necessity, those complex conditions, factors and circumstances that determine social life and development and therefore are subject to legal regulation. This knowledge also includes establishing the goals of legal regulation, determining the meaning of the normative legal act to be created. At this stage, the essence of the rule of law, the meaning of legal regulations is realized and comprehended.

Further, cognition is followed by activity, which is its logical continuation. The transition from cognition to activity is a labor-intensive, multi-stage deployment and concretization of knowledge in normative legal acts. The stage of creating the law itself (or by-law) begins, divided in turn into a number of stages. The result of the legislative process, its final product is a normative legal act.

And the last stage of lawmaking is the process of assessing and analyzing the results of the process of creating acts of legislation, establishing the compliance (or non-compliance) of the results of legislative activity with the goals of legislators. The results of such an analysis allow us to draw a conclusion about the possibility of ending or the need to continue the legislative process.

Legislative technology is a methodology for implementing in an objective form - in the form of regulatory legal acts of public authorities - an abstractly existing rule of law, which is an expression of objective necessity public life and development.

Structurally, legislative technology includes 3 subsystems:

· technique of legislative cognition– the methodology most associated with general theoretical legal sciences, such as the theory of state and law and philosophy of law, of understanding the objective social necessity underlying legal regulation, establishing facts of imperfection of the system of normative legal acts, possibilities, directions and forms of its improvement;

· rule-making technique - a system of techniques and methods for creating specific normative legal acts, procedures for their official adoption and approval, as well as combining them into a single system (systematization) ;

· technique for analyzing the results of lawmaking – a technique for assessing the compliance of the results of lawmaking with the original goals of the process in order to conclude the degree of compliance of these results with the original goals of the activity.

The most important of them is the technique of rule-making; it represents the semantic core, the axis of legislative technology. However, this does not reduce the importance of the other two components, because legislative technology as a science can only exist as a system of these three components. Each of them cannot exist separately and act as a knowledge system.

Legislative technique as a methodology includes a whole range of techniques and methods that determine the process of lawmaking:

· determining the need to create a normative legal act (or make changes and additions to existing acts of legislation);

· precise determination of the true content of the rule of law subject to formal expression, which is derived from the complex of fundamental interests of social life and development;

· establishing the form and method of expressing and consolidating a legal prescription;

· accurate and adequate expression of the will of the legislator in textual form (logical, stylistic and linguistic techniques);

· control over the activities of all participants in the legislative process aimed at ensuring the legal nature of its activities, excluding from the number of factors determining the content of the created normative legal, non-legal incentives of legislation that do not reflect (for one reason or another) the true objective interests of public life and social development ;

· formation and expression of the content of legal norms in legislation through normative legal regulations;

· layout and drafting of normative legal acts, its semantic and structural systematization;

· procedures for the development, approval and adoption of bills (draft by-laws);

· systematization of legislation, bringing normative legal material into a certain order in order to facilitate legal implementation (in specific cases);

· filling gaps in current legislation, as well as correcting conflicts between regulatory legal acts;

· researching the results of lawmaking, determining the extent to which participants in legislative activities achieve the goals of their activities.

The techniques and methods of lawmaking that make up the methodological complex of legislative technology have a strictly defined functional purpose, defining them. The functions of legislative technology predetermine the very existence of this entire legal institution, its structure, as well as the content of the main methods included in this institution. The main, most important such functions, in particular, include the following:

· assistance to participants in the legislative process to accurately establish, in order to consolidate in articles of normative legal acts, the true meaning of the rules of law, in a concentrated form expressing the basic interests and patterns of social life and social development;

· ensuring the truly legal nature of legislation, exact compliance of the content of the created normative legal acts with the fundamental interests of life and development of society, excluding the possibility of influence on the formation of this social regulator by non-legal factors (personal aspirations of legislators, interests of narrow social groups that contradict the general direction of life and development of society, political market conditions, populist aspirations, etc.);

· promoting an accurate and complete reflection of the rules of law, and only the rules of law, in the normative legal acts being created;

· ensuring that the requirements set out in the legislation are understandable to the widest possible range of subjects of legal regulation;

· eliminating the possibility of different interpretations of legislative acts, promoting a common understanding of the meaning of the regulations contained in them;

· promoting the implementation of regulatory legal acts as the most appropriate and convenient model lawful behavior of individuals and legal entities;

· promoting the achievement of completeness, consistency and logical unity current legislation, combating both gaps and duplication of regulations expressed in regulatory legal acts;

· creating optimal conditions for improving existing legislation: updating, systematizing, correcting shortcomings;

· maintaining the longest possible viability of the created normative legal acts, ensuring that they retain their legal nature and have a real opportunity to influence the behavior of participants in legal relations for the longest possible period of time.

The above functions of legislative technology as a methodology can be considered as the goals of using scientifically developed and substantiated techniques and methods of lawmaking. They allow us to draw a conclusion about the role that legislative technology plays in the activities of legislators.

2.2. Legislative technology as a science

Now let's consider legislative technology as a system of knowledge, that is, as a science.

Legislative technology, unfortunately, is one of the least developed legal sciences in our country. In fact, we are talking about a fundamentally new system of legal knowledge, which has a specific subject, method and functional purpose. However, despite the weak development, the need for a special scientific substantiation of lawmaking and the fact of the existence of a special legal science, legislative technology, is practically not disputed by anyone.

Legislative technology is a special legal science located at the intersection of the theory of state and law and constitutional law (as a science). It is closely connected with both sectoral legal science and general theoretical science, but, nevertheless, retains its independence. The purpose of this science is to apply in practice in the course of legislative activity the achievements of the theory of state and law, to implement its main ideas and principles, to summarize theoretical basis under the legislative process. Legislative technology as a science is called upon to find a rational way to introduce theoretical knowledge about law into the practical sphere, in the process of creating a system of normative and legal regulators of social relations as forms of external existence of objectively existing legal regulations. Thus, legislative technique can be classified as technical and legal sciences

Legislative technology as a science is a branch of knowledge about legislative technique methodology. Item legislative technique can be generally defined as lawmaking technique, that is a system of principles, techniques and methods used by legislators to implement legal norms in articles of regulatory legal acts, to create and change a unified system of legislation, to form and improve its elements .

The science of legislative technology studies a special sphere of human life associated with the external expression and formal consolidation of objectively existing norms of law in the system of normative legal acts. The main object of studying legislative technology as a science, the main source of knowledge, the main practical basis (both for conducting research and for testing and implementing achievements) is the activity defined by legislative technology as a methodology - lawmaking .

Legislative technology as a science includes the following main institutions:

· basic principles of lawmaking;

· basic methods of understanding the need and determining the method of legal regulation;

· technical techniques and ways of translating the meaning of legal norms into the text form of normative legal acts;

· logic, language and style of law;

· main external factors influencing the formation of the legislative system;

· basic techniques and methods for improving and systematizing regulatory and legal material;

· technical rules for analyzing the results of lawmaking.

The emergence of legislative technology as a science is caused by the practical need for scientific validity of legislative activity. This necessity determines the role and place of this legal science in the system of legal relations and its functional purpose.

Of all the legal sciences, legislative technology is most closely related to theory of state and law, which not only provides a theoretical basis for legislative technology, but also provides a practical justification for many specific provisions and methods. In addition, the science of legislative technology is closely related to such branch legal science as constitutional law, which provides the basis for formal regulation of many (but not all) lawmaking procedures. However, the general part of other branch legal sciences can also be considered as related to legislative technology. Among other legal sciences, one cannot fail to note the connection between legislative technology and legal psychology, which substantiates the possibility of effective influence of legislative regulations on people’s consciousness.

Method science-legislative technology as a system of techniques and methods of obtaining knowledge used in science to obtain knowledge about its subject, includes a whole complex of general scientific and special scientific methods. In general, the methodology of legislative technology is similar to the methods of such legal sciences as the theory of state and law and constitutional law. The science of legislative technology uses are common methods used by all sciences, and private, used only by some sciences.

Legislative technology can be classified as general scientific methods of science, in particular: analysis(the process of mentally decomposing a whole into its component parts) and synthesis(the process of mentally creating a whole from parts). On their basis, researchers have the opportunity to fully and objectively study the theoretical issues of lawmaking as a single complex of actions and institutions, and draw conclusions about the nature of the interrelations of the components of this complex. This category of methods includes historical(study of legislative issues in their dynamics historical development)and logical(use in the field of research of the legislative process and the methods, techniques and methods of the laws of formal logic used by its participants) methods. In addition, among the general scientific methods actively used in legislative technology, we can highlight induction(a method of obtaining general knowledge about a class of objects based on the study of individual representatives of this class) and deduction(a form of inference from the general to the particular and individual, characterized by the fact that new knowledge about an object or a group of homogeneous objects is derived on the basis of knowledge of the class to which the objects under study belong or
general rule valid within a given class of objects) . Legislative technology and other general scientific methods of cognition are used.

The private scientific methods used by legislative technology as a science include a fairly large and unique set of techniques and methods. System-structural method involves the study of a subject based on the assumption of its systemic-structural unity, the close mutually defining relationship of the main components of this subject, as well as the fact that the subject of study is an element of a larger system, and the structural elements of the subject themselves are systems. Functional method involves the study of any object from the point of view of its purpose, its role and functions. Formally – legal method means the study of a subject from the point of view of legal regulation of its functioning (for example, the study of normative legal acts regulating the legislative process). Very important for legislative technology scientific modeling method, when researchers create a mental ideal image of the object under study and study its properties, as well as the possibilities of its functioning and changes. Legislative technology is also used comparative method, in which there is a comparison of certain elements of the subject being studied and other phenomena of the surrounding world. Method of socio-legal research is used to study the effectiveness of existing regulatory legal acts, generalize the practice of their implementation, and identify public opinion that is important for participants in the legislative process. Comparative legal method allows you to explore the techniques and methods used for lawmaking in other legal systems and draw a conclusion about the possibility of their use in Russia. Legislative technology and other methods of scientific knowledge are used.

The above general and specific scientific methods of studying legislative technology are used comprehensively, in close interrelation with each other. The system of these methods largely determines the close relationship between legislative technology and related legal sciences, such as the theory of state and law, constitutional law, philosophy of law and some others.

2.3. Development of problems of legislative technology in Russia and abroad.

Legislative technology as a science has long attracted the attention of legal scholars.

The German legal school is distinguished by the greatest scientific development of the mechanism for creating a legislative system. Germany has given the world a galaxy of outstanding jurists who have developed a brilliant system of scientific concepts in the field of legislative technology. I. Bentham and R. Iering were among the first to begin research in this area. Later, in the 20th century, the development of lawmaking techniques was continued by G. Dolle, O. Gierke, G. Kinderman, G. Weck, G. Hane and others. German scientists created the most important concepts in the field of logic, style and language of laws, which largely influenced on the process of formation of legislation in modern Germany, they managed to justify the use of many theoretical-legal and philosophical-legal theses in the legislative process, to connect general theoretical legal research with the course of their practical application in laws and regulations. The main direction of development in the German school of legislative technology has traditionally been to ensure the deepest possible scientific substantiation of the legislation being created, and the most accurate and complete reflection of doctrinal legal conclusions in normative legal acts.

The French school of legislative technology is more practical in nature. Among the most famous French jurists who worked in the field of legislative technology, it should be noted F. Geny, S. Dabin, R. Cabriac and some others. The research of French jurists is not as deep theoretical and doctrinal in nature as that of German ones; they are much more pragmatic, tied to the solution of specific problems by participants in legislative activity. Perhaps in this regard, most of the developments of French jurists in the field of legislative technology are not so much scientific monographs, but practical aids and recommendations that can be used as a scientific and practical basis for the creation of specific regulatory and legal acts. The French system of legal regulation of lawmaking techniques is distinguished by detail, pragmatism and scrupulousness, which are given much more attention than large-scale and deep general theoretical developments. The basis of French legislative technology is the desire to ensure universal, accurate and complete understanding of the meaning of the normative legal regulations set out in legislation through the simplest possible means, designed for linguistic interpretation by a person who does not have special legal knowledge - the addressee of these regulations. French scientists have developed especially well the scientific foundations of codification and the methodology of this process.

In Russia, issues of improving legislation at the scientific level began to be addressed in the second half of the 19th century. The increased attention of scientists and practitioners to the form of laws of that time is evidenced by the discussion that unfolded in the legal literature regarding the draft Code of Criminal Punishments of 1885. Thus, in one of the reviews of the draft it was written that: “A close acquaintance with the draft convinces that The simplification of legislation proposed by the project, by reducing to a minimum the number of definitions of theft of property, is achieved through the completeness, clarity and certainty of the law. For future judicial practice, the draft opens up the prospect of a whole series of difficulties, since the text of the law is too short to answer all the requests of law and life actions.”

The greatest interest of pre-revolutionary Russian lawyers in the problems of legislative technology manifested itself in the period from 1900 to 1917, i.e. during the period when the bourgeois revolution was brewing in Russia. At this time, such Russian scientists as N.S. Tagantsev, F.P. were engaged in research into legislative technology. Butkevich, M.A. Unkovsky, P.I. Lyublinsky, A.N. Bashmakov and others. During this era, several very interesting scientific concepts developed in Russia.

P.I. Lyublinsky, in his famous textbook “Technique, Interpretation and Casuistry of the Criminal Code,” wrote that, being a changeable creation of human hands, legal law finds its power in itself and only in this form is it an active, order-creating will. Therefore, the word of the legislator is a task that can be perfectly accomplished only by a God-gifted person, who can create an intuitively sacred legal order, consisting in living correspondence with the soul of the people and real forces. He further noted that legal interpretation teaches us the art of developing the legislator’s thought and extracting the necessary content from it. But it is conceivable only if one is familiar with the technical techniques that the legislator used when constructing his norms. That is why P.I. Lyublinsky believed that legal hermeneutics should be preceded by the study of legislative technology based on practical experience in lawmaking and interpretation of legal norms. It was practical experience that was of paramount importance to this one of the founders of the national school of legislative technology.

Another well-known Russian legal scientist, M. A. Unkovsky, held a different point of view on the problems of this science. In one of his scientific works he wrote that, undoubtedly, experience in legislative technology, gained through long-term participation in the process of drafting laws, is far superior to the knowledge in this industry that people who have recently entered the field have legislative activity, which in most cases are elected members of legislative chambers, but that such experience cannot be called sufficient is shown by the fact that those legislative acts that in different states came from the pen of legislators before the introduction of the electoral system into legislative institutions are also invariably upon their publication, they caused a darkness of bewilderment, requiring all kinds of additions and clarifications, both authentic, administrative and judicial. This outstanding lawyer defended the need for a scientific substantiation of the rules of legislative technology and put forward a number of interesting theoretical and legal theses concerning legislative technology.

However, unfortunately, pre-revolutionary domestic scientists did not try to connect their theoretical developments with practical recommendations for the creation of normative legal acts. There was no single state legislative concept based on serious scientific developments.

After the October Revolution, quite a lot of attention was paid to issues of legislative technology for some time, especially at the stage of forming the foundations of Soviet legislation, which was radically different from the legislation Russian Empire. In the era of the formation of a new, planned as an advanced, legal system, a new legal ideology, a new concept of creating revolutionary legislation was developed, the main advantage of which over the bourgeois legislation would be its nationality, and, consequently, the clarity and intelligibility of its provisions, not allowing for double interpretation, etc. distortions and distortions of its essence. The main emphasis in scientific developments of those years was on the need to simplify laws, ensuring their maximum understandability to the broad masses of the population and, at the same time, ensuring their legal nature. And most of the research in the field of legislative activity was carried out in the field of means of presenting the text of laws and the terminological system used in their presentation, in the field of developing the style and language of legislation. In 1931, under the Presidium of the All-Russian Central Executive Committee of the USSR, a special commission was created of scientists - lawyers and philologists, whose task was to develop scientifically based recommendations for improving the language of normative legal acts. The issue of the need to carefully develop the logic, language and style of the law has been actively discussed in the scientific literature. In the late 20s - early 30s of the XX century, an interesting discussion was held, during which many valuable and original proposals were made regarding external design laws, methods of textual expression of normative legal regulations. Even some prominent Soviet party and government figures, far from science, could not deny themselves the pleasure of taking part in this work.

However, with the formation and strengthening of the administrative-command management system in our country, interest in legislative technology gradually faded away. This was facilitated by the disdainful attitude established among semi-literate party and state functionaries towards the “formal” requirements and rules for drafting laws, strict party-ideological control over scientific developments, as well as the physical extermination of the color of the young Soviet law school. However, it cannot be said that research in this area of ​​legal science stopped completely - the search for scientific foundations for improving Soviet legislation by some researchers continued.

The revival of the domestic school of legislative technology occurred in the 60-90s of the 20th century. At this time of the heyday of domestic legal science, the main scientific concepts in the field of lawmaking are formed. They are the ones who determined current state domestic legislative technology as a science.

Currently, domestic science and legislative technology is experiencing a period of growth. Scientific methods of legislative work are being developed, the experience of creating normative legal acts is being comprehended and analyzed, and actively being researched Foreign experience and concepts of foreign authors in the field of legislative technology.

The increased interest in legislative technology in modern Russia is due to a whole complex of factors associated with changes in the state of legal regulation. First of all, attention to this science is due to a significant increase in the role of legislation in legal regulation social relations and in social life in general, as well as intensified legislative work during legal reform from the early 90s of the last twentieth century to the present. In addition, interest in the methodology of forming and improving legislation is associated with the increasing role of legislative representative bodies in the life of the state and society, changing the nature of their formation and work, and the need to systematize, professionalize and streamline their activities. Also, most researchers note that in modern conditions There is an urgent need to improve teaching in legal higher education institutions, to improve the quality of education of legal specialists, which without knowledge of the methodology for forming a system of normative legal acts cannot be considered as a logically complete and full-fledged professional and, especially, scientific training. “One of the urgent tasks not only of law schools, but of all higher education is the transition from training focused on cognitive mastery of disciplines to training aimed at developing the skills and abilities of highly professional subject-practical scientific activity»

Among the most important works of modern Russian researchers devoted to issues of legislative technology, it is necessary to highlight the works of D. A. Kerimov, who creates an important philosophical and legal basis for research in this area, Yu. A. Tikhomirov, who developed a lot of very interesting practical recommendations for legislators, T.V. Polenina, A.S. Pigolkina and some others. It is their developments that represent the scientific basis of the modern Russian school of legislative technology.

It can be stated that as a result of the active scientific development of techniques for forming a legislative system now, at the beginning of the 21st century, the professional level of domestic legislators has increased significantly, compared to the beginning of the 90s of the last 20th century, when radical reform in our country began. Technologies for legislative actions and procedures are developed doctrinally; on the basis of these developments, methods are created and normatively approved, which become generally binding and act as systematization and unification of the legislative process.

However, the general level of scientific substantiation of lawmaking in our country is currently, unfortunately, far from perfect. This is manifested in numerous facts of legislative errors, which entail most of the defects of modern Russian legislation.

In domestic legal science, the question of the relationship between legal and legislative technology still remains open. This is mainly due to the lack of a unified approach to understanding the terms “legal technique” and “legislative technique”.

Modern researchers identify several approaches to understanding the terms legal and legislative technology:

There is an instrumental approach. Within the framework of this approach, legal technology is considered as a set of techniques used in accordance with accepted rules in the development and systematization of legal (regulatory) acts to ensure their perfection.

At the same time, the literature identifies the main elements of legal technology: techniques, means, rules, methods and methods. But this issue is debatable, since different authors list a different set of elements.

Speaking about the subject, it should be noted that scientists have also developed two main approaches:

1. Documentation approach;

2. Activity approach.

Examining the domestic practice of lawmaking and law enforcement, we can conclude that one of the the most important conditions effective improvement of legislation is the mastery of the participants in legislative activity by a system of certain requirements for the process of formation and improvement of the system of normative legal acts. These requirements, as a single set of principles, techniques and methods, are embodied in a branch of knowledge called legislative technology.

As noted by T.V. Khudoykina “It is necessary to strive to achieve high quality of law, its ability to be an effective regulator of social relations”

In the legal literature there are also many approaches to understanding the term legislative technique.

In particular, D. V. Chukhvichev defines legislative technique as a system of techniques, methods, methods and principles for creating and changing a system of normative legal acts.

I. L. Braude defines legislative technique as rules about the nature, structure and language of normative acts.

Legislative technology includes the following structure, consisting of 3 subsystems:

Technique of legislative knowledge;

Rule-making technique;

Technique for analyzing the results of lawmaking.

Speaking about the relationship between legislative and legal techniques, it should be noted that they are inextricably linked.

Looking at the definitions of these concepts, you can notice the similarity of their content. Legislative and legal technology is understood as a set of techniques used in accordance with accepted rules in the development and systematization of legal (regulatory) acts.

Davydova M.L. By legal technique we mean a system of professional legal rules and means used in drawing up legal acts and carrying out other legal activities in the areas of lawmaking, legal interpretation, authoritative and non-authoritative implementation of law, ensuring the perfection of its form and content [2, p. 50].

Kashanina T.V. under legal technique represents the rules for conducting legal work and drawing up in the process of it legal documents.

In order to correctly and accurately fulfill all the requirements in legislative activity, T.V. Khudoikina proposed a number of requirements and rules of legal technique:

The expedient organization and logical sequence of presentation of normative instructions placed in a normative legal act;

Full, adequate expression of the will of the legislator;

Simplicity and general accessibility of the language of regulatory legal acts, “the meaning of each legal concept in the text of a legislative act must be clearly defined”, accuracy and specificity of the terminology used;

Conciseness and capacity of presentation of legal norms with sufficient depth and comprehensiveness of reflection of their content;

Timely promulgation and entry into force of laws and other legal acts in accordance with the established procedure.

When comparing the structural elements of these concepts, it is clear that they coincide. Accordingly, we can conclude that legislative technology can be considered either as an analogue of legal technology, or as the most important, fundamental part of this legal institution.

Thus, it is worth noting that the concept of legislative technology is broader than the concept of legal technology and includes not only techniques, methods, rules for creating regulatory and other legal acts, but also certain actions, stages, steps that determine the process of preparation and discussion , adoption, publication of relevant legal acts.

Bibliography

1. Braude I. L. Essays on legislative technology. M., – 1958. – 105 p.
2. Davydova M.L. Legal technology: problems of theory and methodology: monograph / M.L. Davydova; GOUVPO "VolSU". - Volgograd: VolGu Publishing House, 2009. - 318 p.
3. Kashanina T.V. Legal technology: textbook / T.V. Kashanina.-2nd edition, revision. – M.: Norma: INFRA – M, 2011.- 496 p.
4. Khudoikina T.V. Stability of law or legislation? (theoretical and practical aspects) // Journal of Russian Law. – 2000. – No. 9. – P.18-28.
5. Khudoikina T.V. Legal conflictology: textbook / T.V. Khudoikina, A.A. Bryzhinsky. Saransk, 2008.-224 p.
6. Chukhvichev D.V. Legislative technology: textbook. a manual for university students studying in the field of Jurisprudence. – 2nd ed., revised. and additional M., 2012 – 415 p.

The concept of legislative technology.

This is a system of rules and techniques for preparing draft normative acts that are perfect in form and structure, ensuring the necessary coverage of regulated issues, full and exact compliance of the form of normative regulations with their content, accessibility, simplicity, and visibility of normative material.

1. Reducing regulations on the same issue to a minimum;

2. Absence of contradictions with current regulations and in the regulation itself;

3. The logical sequence of presentation and the relationship of the normative instructions placed in the act;

4. The presence in the act of legal means to ensure its compliance (measures of encouragement, control, procedures for resolving disputes, measures of liability for violation of legal regulations or references to the current regulations establishing them, etc.);

5. Use of identical, unified official attributes (name of the act, title, serial number, etc.) and structural parts (chapters, sections, parts, articles, paragraphs, etc.);

6. The presence in the act of definitions of fundamentally important terms (legislative definitions);

7. Lack of reasoning, scientific statements, declarations, etc.;

8. The language should be precise and concise, the same term should always be used to refer to the same concept;

9. The act must be presented in simple, clear language, in as short phrases as possible; epithets, metaphors, figurative comparisons, quotations and ambiguous words and expressions should not be used in the act;

10. If necessary, simultaneously with the draft act, a draft resolution on the procedure for putting the act into effect is submitted. This project should reflect the issues of repealing (amending) previously adopted regulations (or parts thereof), the commencement of the act, and other issues related to its implementation.

Concept and characteristics of a normative legal act

A normative legal act is understood as a document of public authorities containing rules of law.

Features of a normative legal act (differences from other documents):

1. Comes from the entire population (if adopted in a referendum) or from government bodies.

2. Contains legal norms.

3. Created in a special procedural manner.

4. Designed in a certain form.

5. Forms a unified, hierarchical system.

6. It must be brought to the attention of the population.

Classification of normative legal acts

To streamline regulatory legal acts, various classifications and methods of systematizing regulatory legal acts are used.

Grounds for classification:

1. Legal force of the normative legal act.

3. Entities that issued the regulatory legal act.

4. The scope and nature of the action of the regulatory legal act.

Legal force a normative legal act reflects its place in the hierarchical system of normative legal acts.

The Constitution of the Russian Federation, the fundamental law of the state, has the greatest legal force.

The entire set of legal acts is divided into 2 subsets according to their legal force:

2. By-laws and legal acts.

1. Uniform legal acts.

2. Comprehensive legal acts.

Homogeneous legal acts contain rules of law related to one branch of law.

Complex legal acts relate to different branches of law.

Example of homogeneous legal acts:

Labor Code of the Russian Federation

An example of a complex legal act:

Federal Law “On Education”.

By subject, who issued the regulatory legal act, distinguish:

1. Regulatory and legal acts of legislative bodies (laws).

2. Regulatory acts of executive authorities (by-laws).

3. Regulatory legal acts of the judiciary (decrees).

By volume and nature of action regulatory legal acts are divided into:

1. Acts general action.

2. Acts of limited validity.

Acts of general effect apply to the entire population of the state.

Acts of limited validity apply only to a certain group of persons (for example, refugees).

Laws: signs and types

Signs:

1. Regulate the most important social relations.

2. Adopted as a result of the popular will in a referendum, or by legislative bodies.

3. They have higher legal force compared to other legal acts.

According to their legal force, laws are divided into:

1. The Constitution.

2. Federal constitutional laws

3. Federal laws.

4. Laws of the constituent entities of the Russian Federation.

By-laws: concept and types

A subordinate regulatory legal act is a regulatory legal act adopted by executive authorities.

The following types of by-laws are distinguished in descending order of legal force:

1. Decrees of the President of the Russian Federation.

2. Decrees of the Government of the Russian Federation.

3. Regulatory acts of federal executive authorities (ministries, state committees, federal services).

4. Regulatory acts of executive authorities of the constituent entities of the Russian Federation.

6. Regulatory and legal acts of local governments.

Effect of regulatory legal acts over time,

space and around a circle of people.

Effect of regulations over time begins from the moment the normative legal act enters into force and ends when the normative legal act is terminated.

The moment of entry into force of a normative legal act is determined:

3. After a certain number of days have passed after the publication of the regulatory legal act.

Termination of a regulatory legal act is determined by:

1. By indicating this in a new regulatory legal act.

2. Upon expiration of its validity period specified in the act itself.

By general rule, the norms of a regulatory legal act begin to be applied to regulate social relations that arose after the entry into force of this act.

There are two exceptions:

1. If the retroactive force of the act is expressly stated in the act itself.

2. Acts with rules of law that eliminate or mitigate criminal or administrative liability have retroactive force.

The effect of regulations in space determined by the powers of the entity that issued the act.

Acts issued by federal government bodies are valid throughout the Russian Federation.

Acts issued by state authorities of the constituent entities of the Russian Federation are valid only on the territory of the constituent entities.

By circle of people, to which the act applies, there are general and special acts.

General ones apply to all citizens.

Special – for a certain category of citizens (pensioners, students, etc.).

Characteristics of the main methods of systematization

regulatory acts

Systematization - ordering.

Collision - collision.

The Codex is a book.

There are the following main ways to systematize regulatory legal acts:

1. Incorporation.

2. Codification.

3. Consolidation.

Incorporation- this is a combination of existing legal acts in a collection without changing their content.

Codification– this is an activity aimed at systematizing and radically revising existing legal acts by adopting a new codified act (during codification, conflicts of norms from different legal acts are eliminated).

1. Fundamentals of legislation.

3. Charters.

4. Regulations.

Consolidation– this is an activity aimed at combining many regulatory legal acts relating to a certain area of ​​public relations into one enlarged act.

Consolidation is an intermediate step towards codification.

Concept of legal system

The entire set of legal norms forms a legal system.

The system means a whole made up of parts. As a holistic entity, the legal system includes all legal norms in force in the state. As components systems of law are branches of law, sub-branches of law and institutions of law, but the basic parts of a system of law are branches of law.

The branch of law is understood as a set of rules of law governing any area of ​​social relations. The basis for dividing law into branches is the subject of legal regulation and the method of legal regulation.

Legal system is a set of branches of law in which the general will of the ruling class or the entire society is expressed.

Structure of law

In turn, each branch of law may consist of sub-branches of law and legal institutions. Graphically, the legal system is expressed as follows:

Horizontal structure of law represents a division of law into separate branches of law.

Vertical structure of law– hierarchical connection of various parts included in the branch of law.

Sub-branch of law– a set of legal norms regulating a specific type of relationship within the scope of legal regulation of a branch of law. For example, copyright, inheritance law and other sub-branches act as sub-branches of civil law.

Institute of Law– a set of legal norms regulating a homogeneous group of social relations.

A simple institution of law includes the rules of law of one branch of law. For example, the institution of pledge in civil law.

A complex institution of law includes rules of law from various branches of law. For example, the institution of property includes rules of law from constitutional law, civil law, family law and other branches of law.

Each branch of law has a basic institution of law, which defines:

1. Subject of legal regulation of the industry.

2. Industry-wide principles of law.

3. Industry objectives and other general provisions.

Thus, in constitutional law, the main institution is the Institute of “Fundamentals of the Constitutional System” (subsection 1 of the Constitution of the Russian Federation).

The main institution of civil law are the rules of law reflected in the subsection of the Civil Code “Basic Provisions”.

The legal system is not a frozen structure. It changes depending on changes in social relations. New branches of law and legal institutions appear in it, and old ones die out.

In the literature on legal theory, legislative technique is traditionally considered in the context of lawmaking as one of its elements. Some legal scholars interpret it as a system of rules and techniques for preparing draft normative acts that are the most advanced in form and structure, ensuring full and exact compliance of the form of normative regulations with their content, accessibility, simplicity and visibility of normative material, and comprehensive coverage of regulated issues. Others - as a set of rules, means and techniques for the development, execution and systematization of normative acts in the context of sources of law and lawmaking. Its object is the text of a normative document, in relation to which the legislator expends intellectual effort. Sometimes the means of presenting the content of legal regulations, methods of formulating norms or provisions of legal acts, and means and methods of constructing legal acts differ. In general, legislative technology is recognized as an important factor in the optimization and effectiveness of legislation.

In Russia, issues of improving legislation began to be addressed in the second half of the 19th century. The increased attention of scientists and practitioners to the form of laws of that time is evidenced by the discussion that unfolded in the legal literature regarding the draft Code of Criminal Punishments of 1885. Thus, in one of the reviews of the draft it was written that: “A close acquaintance with the draft convinces that The simplification of legislation proposed by the project, by reducing to a minimum the number of definitions of theft of property, is achieved through the completeness, clarity and certainty of the law. For future judicial practice, the draft opens up the prospect of a number of difficulties, since the text of the law is too short to answer all the requests of law and life actions.”

The greatest interest of Russian lawyers in problems of legislative technology manifested itself in the period from 1900 to 1917, i.e. during the period when the bourgeois revolution was brewing in Russia. At this time, such Russian scientists as N.S. Tagantsev, F.P. were engaged in research into legislative technology. Butkevich, M.A. Unkovsky, P.I. Lublinsky

Simultaneously with the works of Russians, the works of European scientists such as I. Bentham and R. Iering were also published. P.I. Lyublinsky in his famous manual “Technique, Interpretation and Casuistry of the Criminal Code” wrote that, being a changeable creation of human hands, legal law finds its power in itself and only in this form is it an active will that creates order. Therefore, the word of the legislator is a task that can be perfectly accomplished only by a God-gifted person, who can create an intuitively sacred legal order, consisting in living correspondence with the soul of the people and real forces. He further noted that legal interpretation teaches us the art of developing the legislator’s thought and extracting the necessary content from it. But it is conceivable only if one is familiar with the technical techniques that the legislator used when constructing his norms. That is why P.I. Lublinsky believed that legal hermeneutics should be preceded by the study of legislative technology

Another well-known Russian legal scholar M.A. held a different point of view on the problems of legislative technology. Unkovsky. In one of his scientific works, he wrote that, undoubtedly, experience in legislative technology, gained through sitting for many years in the process of drafting bills, is far higher than the knowledge in this area possessed by persons who have recently entered the field of legislative activity, which in most cases are elected members of legislative chambers, but that such experience cannot be called sufficient is shown by the fact that those legislative acts that in different states came from the pen of legislators before the introduction of the electoral system into legislative institutions, also invariably upon their publication caused a great deal of confusion, requiring all sorts of additions and clarifications, both authentic, administrative and judicial.

How then can we compare such, so to speak, primitive type of experience with the knowledge that would arise from systematic acquaintance with the whole mass of legal issues arising from life, taken from different areas of law, different countries and different eras, and if this acquaintance occurs not incidentally with the development of various private bills, but pursues the special task of clarifying the general nature of the legislative and technical shortcomings of legislation, which are usually the causes of one or another kind of confusion, and inventing the most beneficial methods for presenting them for entire systems of laws so that the whole complex legislative norms each given country was expressed in the most concise and clear form? Experience of the first kind is nothing more than some “trainedness” in the matter of legislative technology and, moreover, as already explained, very insufficient, judging by its results, while the knowledge that would be obtained through the above-mentioned systematic and special work would contain everything those guiding conclusions useful for presenting legislation in a clear and concise form that are generally possible to draw

When developing a modern definition of legislative technology, one must constantly remember that its main purpose is to solve problems of the relationship between the content and form of law. Its purpose is to give laws a form that would fully correspond to their content and meet the requirements of accessibility, simplicity and clarity.

Attention should be paid to the specifics of legal and technological techniques in different branches of legislation. Their distinction is due to the different objects and methods of legal regulation. For example, in constitutional legislation more norms - definitions, norms - goals and norms - principles are used, and the norms themselves often consist only of dispositions. In civil and criminal legislation, strict and detailed structuring of institutions and norms is traditional.

In our opinion, legislative technique is a system of rules designed and used for the cognitive-logical and normative-structural formation of legal material and the preparation of the text of the law. In this definition, six interrelated elements can be distinguished: cognitive - legal, normative - structural, logical, linguistic, documentary - technical, procedural.

Each of the elements contains a set of requirements - rules that must be strictly followed. Their application, taking into account the stages of movement of the bill, must be consistent and interconnected.

The cognitive element means determining the subject of legislative regulation, selecting and analyzing processes, phenomena and relationships that may be the object of legislative influence. It is justified to proceed from the following range of legally regulated relations:

a) their high social significance for society, the state and the citizen; b) stability; c) primary - regulatory regulation; d) predetermination of constitutions; e) competence of the subject of legislative activity.

Associated with these components is right choice forms of a legal act, taking into account its place in the legal system and classification characteristics, both official and doctrinal.

The cognitive aspect of preparing the law is related to its concept. This is an analytical normative model with options for legal behavior, with the approximate structure of an act, its connections with other acts, possible consequences and an assessment of the effectiveness of the action. Replacing concepts with all kinds of explanatory notes, etc. outwardly simplifies the process of lawmaking, but in reality only depreciates it.

What is important within the concept of law is the “set of concepts” that are intended to be used. These are, first of all, scientific and legal concepts developed by legal science and necessary for the correct construction of the law. Their underestimation and ignorance lead to mistakes and legal contradictions. Further, constitutional concepts should be applied correctly, without allowing arbitrary deviations from them.

Quite often, concepts and terms are recognized in some law. Is this necessary? Traditionally, within the framework of the continental law system, to which, we note, Russian law primarily belongs, not every law is accompanied by a set of its own concepts. They are already embedded in constitutions, codified acts and scientific doctrines. In our country, on the contrary, there is now a fascination with definitions as the “calling card” of the law.

The Water Code contains 30 basic concepts - such as “water”, “waters”, “groundwater”, etc. (Article 1). It is unlikely that they have a specific meaning that requires normative expression. The Air Code contains no norms or definitions at all, except for the concept of “specially authorized body” (Article 6). This circumstance led to their appearance in specific laws adopted within this area.

It is more correct, firstly, to introduce normative concepts only in basic laws (codes), secondly, to achieve a strict internal connection between norms - definitions and chapters, articles of the law, thirdly, to ensure the consistent and correct application of basic norms - definitions in other laws and other acts.