The teaching fellow of Jurisprudence Chair, L. A. Gracheva

Amur State University (the Birobidzhan Branch), Russia

The peculiarities of realization of certain norms of the Civil Legislation in Russia

There is no answer to the question what should be meant by legislation in general and the civil legislation in particular in the Constitution of the Russian Federation, adopted on 12 December and entered into legal force on December 25, 1995. But there is a reasonable and certainty answer to the question whose jurisdiction the civil law applies. Article 71 of the Constitution of the Russian Federation, defining the subjects of jurisdiction of the Russian Federation relates the civil law to its jurisdiction as well. The point at issue is that the civil law belongs to the exclusive jurisdiction of the Russian Federation. This conclusion should be done through the systematic interpretation of articles 71 and 72 of the Constitution. In Article 72 such sectors of legislation related to the civil law, as labour legislation, the family and marriage, land legislation, forest legislation, water legislation, mining legislation and a number of others are assumed to the jurisdiction of the Russian Federation and its sub-sovereign entities. It follows that the civil legislation does not refer to the cooperative jurisdiction of the Russian Federation and its sub-sovereign entities, but to the exclusive jurisdiction of the Russian Federation.

The approach of the maker of law to this extremely and complex problem is clear. If we are in fact want to re-establish destroyed economy, at least within the Russian Federation, and to provide free unimpeded movement of goods, capital and services, we must allow spreading of the civil legislation among the sub-sovereign entities of the Federation, which are almost 90. It is clear that if while moving of goods, capital and services there will be artificial barriers in the form of different legal provisions, specifically, if we follow the direction of the particularism in the legislation, there won’t be any restoring of the economy.

But, we seem to have gone to the extremities in this case. Let’s put a rhetorical question whether it is possible to give up civil legal norms completely at the regional level, which must provide their specification and fixing in relation to the local conditions without deviating from the initial bases of the legal regulation laid down at the federal level? However, the present edition of the relevant norms of the Constitution of the Russian Federation it is not an easy task to make the theoretical basis suitable for such a decision. The misadventures concerning the approach to the civil law and the definition of its content do not end in this case.

But to take the reader to the point of the emerging problems, we will leave the fundamental law of our country for a while and turn to the Civil Code of the Russian Federation. What content does it put into the concept of the “civil law”? The most detailed provisions are in Article 3 of the Civil Code. Let’s recall the point of these provisions.

The notion of the “civil law” is restricted only by federal laws of the Code. The fundamental place among them is the Civil Code. The standards of the Civil Code laid down by the principles of legal regulation must correspond to the civil law provisions contained in all legal acts, including federal laws.

In addition to the laws, which are covered by the notion of legislation, in Article 3 of the Civil Code it is said about decrees of the President, Government decrees, acts of ministries and other federal authorities of the executive branch, which could contain standards of civil law. In article 3, decrees of the President and Government decrees are covered by the notion of “legal acts”. Apparently, this concept can be used for acts of ministries and other federal authorities of the executive branch.

In accordance with it the regulatory and administrative authorities of the sub-sovereign entities of the Russian Federation and the municipal entities do not have the right to issue legally enforceable enactments containing the standards of civil law. The necessity of uniform settling of social relations within the subject of civil right throughout the territory of the Russian Federation is not in doubt. However, at present when civil legislation taken at the federal level, is far from to be complete and comprehensive, this legislative solution raises a significant complexity in solving many problems arising in certain regions of the Russian Federation.

The laws of the constituent entities of the Russian Federation contain the standards of law attributed to the joint competence of the Russian Federation and constituent entities of the Russian Federation according to item K of article 71 of the Constitution.

The relationships regulated by the Federal law “On the state regulation of production and turn-round of ethyl alcohol and alcoholic products, and limiting using (drinking) of alcoholic”, are the subject of civil law, and the Federal law enters the system of the civil law.

The latter Federal law gives the right to the sub-sovereign entities of the Russian Federation to impose additional restrictions on the sale of alcoholic products. According to item 5 of article 6 of the Federal Law “On the state regulation of production and turn-round of ethyl alcohol and alcoholic products, and limiting using (drinking) of alcoholic” “retail of alcoholic products is not allowed from 11:0 pm to 8 am of local time, with the exception of retail sale of alcoholic products, carried out by organizations, and retail sale of beer and beer beverages carried out by individual entrepreneurs on conditions that such organizations and individual entrepreneurs provide public catering services and the retail sale of alcoholic beverages by tax-free shops.

State authorities of the constituent entities of the Russian Federation have the right to set up additional time limits, conditions and places of retail sale of alcoholic products, including an absolute embargo on retail of alcoholic products.

State authorities of the constituent entities of the Russian Federation set up requirements to the minimum size of the paid authorized capital (charter fund) amounting to not more than 1 million rubles for organizations engaged in the retail sale of alcoholic products (with the exception of public catering organizations).

In the law of the Jewish Autonomous Region “On regulation of alcoholic products retail in the territory of the Jewish autonomous region” additional rules of retail of alcoholic products, which is applicable only in the territory of the region, are established.

Though these standards are not civil, but social relations regulated by this law are the subject of civil law. Above all, they touch the entrepreneurs who carry out retail of alcohol products.

Drawing up the results it can be concluded that allowing the sub-sovereign entities of the Russian Federation to establish their own restrictions on the sale of alcohol products, the principle of the joint competence of the legislation is violated.

However, on the whole territory of the Russian Federation there must be the same rules of carrying out entrepreneurial and other activity.

Literature:

1. Civil Code of the Russian Federation.

2. Federal Law “On the state regulation of production and turn-round of ethyl alcohol and alcoholic products, and limiting using (drinking) of alcoholic products”.

3. The Law of the Jewish autonomous region “On regulation of alcoholic products retail in the territory of the Jewish autonomous region”.