Y. Bondar, Cand. Jur. Sc. L. V. Avramenko, Cand. Philol. Sc.
S. V. Myasoedova
Kharkiv Yaroslav Mudryi National Law University
CORRELATION
OF THE LAW AND THE BY-LAWS OF UKRAINE
Modern
period of social development is characterized by the growing necessity in the
regulation of various spheres of life. Currently, many countries pass a great
number of the legal acts to regulate social relations. Ukraine is not an
exception. A legislative body of a country is not the only authority that has the
power to pass such acts, it is also the right of the executive body of power.
Therefore, today it is so actual for any democratic and lawful states to correlate the law and by-laws. The question of the relationship between acts with
different legal force appeared around the 19th century. In spite of
this, the answer isn`t formulated yet. The study of this legal phenomenon will be continued, because the
development of social relations occurs constantly.
The necessity of
this correlation is very significant in
order to develop a mechanism of
legal regulation in Ukraine. That is why it is
particularly important for our country to clear up the problem of the
correlation of the law and the by-law.
The
correlation can be considered as a mutual link between two objects or phenomena.
Thus, let`s consider the correlation of by-laws with the law by defining their
common and different features according to certain criteria:
1.The government authority which has the jurisdiction
in the law-making sphere.
Law
in the system of the mechanism of activity of the state authority is issued
only by the representative body of the state power. Though, Article 85 of the Constitution of Ukraine indicates, that “The
authority of the Verkhovna Rada of Ukraine includes: lawmaking process”.
Moreover, in Article 75 of the main law of Ukraine it is pointed out that “The sole body of legislative power in Ukraine is
the Parliament – the Verkhovna Rada of Ukraine”. On the other hand, a subordinate
legal act is issued mainly by the executive authority, the President of Ukraine
and local governments.
2. The functional direction.
Law
is the main manifestation of implementation of the competence of the legislature
and by-law on the contrary is the reflection of the executive functions of the
state, tasks of the executive authority, President and local authorities in
accordance with the constitutional principle of distribution of powers into
legislative, executive and judicial.
3. The procedure of passing laws and by-laws.
Unlike
laws, by-laws can be more quickly modified, amended or repealed. This flexibility is achieved by legal regulation of social relations in the country. As for the law,
it is a regulation that is adopted by the legislative process. The legislative process
essentially is an adoption procedure of the law, which consists of
certain stages - independent, logical steps and completed organizational and
technical actions. The legislative process consists of the following steps such as the pre-project stage, the stage of the project, the stage of certification
and stage of
information. A by-law does not contain the stages of the legislative process mentoned above. That
helps to reduce the time of creation of the by-law.
In modern terms, society and social processes often require immediate actions and the time of adoption. That is why the
adoption of a normative decision is very important. In this case by-laws can quickly respond to the changes of
certain circumstances
in the society.
4. The number of persons.
By-laws are adopted primarily by the individual body or an official. They are issued personally
or passed collectively. Laws are taken by the collective representative body of the people.
5. The
correlation according to the range of the regulation of social relations.
Various
social relations that arise between people,
organizations and bodies of power are settled by the by-laws. The
circle of these relations in general is defined in Article 92 of the
Constitution of Ukraine. It is necessary to note that by-laws regulate almost
the same relationships that are regulated by laws. Article 117 of the Constitution of Ukraine reads:
“The Cabinet of Ministers of Ukraine within its competence issues resolutions
and orders that are binding”. However, the kind of acts which the Cabinet of
Ministers may pass is not mentioned. I think that it would be arbitrarily to constitute the range of relations necessary to be
settled on the basis of the acts of the executive authority.
6. The legal power.
Modern
legal science determines validity of legal acts as a specific property that
characterizes their relations and interdependence according to the formal
obligation and is determined by the law-making body in the state structure. The
laws is a foundation of the sub-legal regulation. The by-laws have less legal
force than laws. There are a lot of collisions between forms of the by-laws and
laws, but the problems that arise are also solved in favour of for laws. In
this case, the by-laws occupy a secondary place.
7. The time-limits.
By-laws
generally imply the shorter period of validity. They are less stable. When any changes take place in a certain sphere of law
regulation, by-laws should be aligned to these sources of law.
8. The sphere of legal enforcement.
Subordinate
regulations usually apply to smaller group of people than laws. Scope of legal
regulation of some of them are more narrow and specific, if we compare them
with the legal provisions.
However,
some researchers recently pay much attention to negative tendencies of the
growing number of regulations i. e. : 1) the publication of such acts sometimes
disturbes a requirement of compliance with laws, it may be undesirable duplication
of normative material; 2) the possibility of fixing in by-laws decisions which
are narrow and unilateral directed to the protection purely departmental
interests; 3) sometimes, the meaning of these acts may not be proved to
the physical and legal persons who deal with these acts; 4) it cause the low
public confidence in the veracity of the full and complete account of their
rights in this form of regulation; 5) another negative moment of
the by-law implementation is a complex language, the ability to use
non-legal terms inaccurately, publication of acts with obvious excess of
jurisdiction. Of course, we agree with some of these statements. However, it
can be concluded that only the executive authorities can actively react to new
social relations. Typically, the legislative body in the present conditions is
slow, which leads to the the efficiency of subordinate law-making subjects. In
this situation, to remove negative aspects of by-law-making process is possible
only in line with the legislation, without exceeding the competence in the
law-making sphere.
Referring
to the mentioned above, we can conclude that, despite the differences between laws
and by-laws, the priority of the law to the by-laws, the adoption of both these
types of normative acts provides efficiency of the mechanism of legal
regulation of social relations.
References:
1. Теорія держави і права:
підручник для студ. юрид. вищ. навч. закл. / О. В. Петришин,
С. П. Погребняк, В. С. Смородинський
та ін.; за ред. О.В. Петришина.
– Х. : Право, 2014. – 368 с.
2. Теорія держави та права : Навчальний посібник / Л. В. Авраменко. Вид. 2-ге
доп. і перероб. – Харків : Видавництво «ФІНН», 2010. – 308 с.
3. Теория
государства и права (энциклопедический курс): Учебник. Перевод с украинского. –
Харьков: Эспада, 2007. – 840 с.
4. Верховна
Рада України; Конституція, Закон від 28.06.1996 № 254к/
96-ВР