Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

December 1995). The rule in the Water Code could be defended by arguing that the relation between the two codes in case of collision of norms has to be regulated, but this argument cannot be used to discuss the relation between a code on the one hand and an ordinary law on the other. Whether the latter rule applies is not totally clear because of the Lankina ruling (cited supra).

A draft Maritime Shipping Code (submitted to parliament to replace the 1968 Code) attempts to govern this branch by regulating the use of maritime vessels as an entirely separate branch providing rules for any relationconnectedwiththeuseofships.Thisisimpossible—sowritesthe President—because it may not regulate a number of public-law questions

(taxes, customs etc.), and this solution fails to take into account the powers of the Federation Subjects. Moreover, the draft bill uses many concepts of civil law. Therefore, the President proposes to provide that civil law rela- tions (property relations based on equality and autonomy) be regulated by the proposed Code in accordance with the Civil Code. However, this will be supplemented with the provision: “The rules of civil legislation are applied to relations, not regulated or not completely regulated by the present Code.”67 This would mean, in fact, that the Civil Code is not the central code but, rather, the general law in the field of civil legislation.

Sometimes, the relations between one law and other laws are based on a different approach. The (now obsolete) Federal Law “On Fundamental

Guarantees of Electoral Rights” (6 December 1994) even provides:

“The electoral rights of citizens of the RF and their guarantees, established by this Federal Law, as well as by other federal laws, laws and other normative legal acts of the legislative (representative) organs of state power of the Subjects of the Russian Federation, may not be amended otherwise than by the adoption of a federal law.”

This provision directly affects the lawmaking rights of the Subjects but leaves the federal lawmaker free in adopting other rules. At the same time, the1994lawregulatesallsortsofbasicquestionsinthefieldofelectorallaw; in case of doubts as to the application of a certain rule in a special electoral law, the participants in the electoral process (and the electoral commissions and courts) must be guided by the 1994 Law.68 In Solov’ev Vadim v. TsIK on the safekeeping of election results, the Supreme Court considered the 1994 Law as “the basic Federal Law for all types of elections”. Therefore, a provision in the law on presidential elections—providing for elections

67Letter on the draft Code, Rossiiskaia gazeta 18 March 1998.Another question raised is that the draft reproduces many rules of international treaties in the field of maritime law, not yet ratified by Russia. Many rules would be impossible under the Civil Code and would become possible only after Russia has acceded to these conventions.

68A.E.Postnikov,“Sistemarossiiskogoizbiratel’nogozakonodatel’stva”,Zhurnalrossiiskogo prava 1997 No.1, 34.

results to be stored for a period of six months—is not in compliance with that basic law, which prescribes a period of one year and, therefore, it is not subject to application.69 (The 1997 law on basic guarantees contains the same rule.)

The question of Selbstbindung of the lawmaker does not pose many problems, but this is different when these rules also have to be applied by courts—including the Constitutional Court—without any basis in the

Constitution but, rather, only in a federal law itself. In its Lankina ruling, the Constitutional Court still could cite some provisions from a constitutional provision on the unity of legislation to this effect.The 1993 Constitution does not provide for “unity of legislative regulation” or contain a rule according codes a special place within the legal system, nor does it provide for a special procedure for adopting such laws. In Article 15 of the RF Constitution, the concept “legal system” is used, but only to provide that treaties belong thereto; it hardly can be argued that the occasional use of this term in that provision mandates a “unity of legislation”. Under the Law “On the Constitutional Court”, however, the Court also has to render a decision with regard to the constitutionality of a law “proceeding from its place in the system of legal acts” (Art.74). This could be (and is) used by the Court as empowering it to enforce the idea of “unity of legislation”. Russian scholars largely agree with the application of these rules by the court.70

Apparently, the ordinary courts also see such rules—under which the lawmakerbindsitselftoitsownlaws—asquasi-constitutionalrulesandrule on the constitutionality and legality of laws on this basis: they are binding for the Court too.

In a letter of 21 July 1997—explaining his veto of a bill on the legal position of military serviceman—the President argued that the provision in the bill (providing that legal and social guarantees set forth in the law may only be reduced by way of an amendment to that law) contravened Article 76(1) of the RF Constitution; this provides that all laws operate directly, thus denying the possibility of codifying acts.71 Herewith, he neglected the rulings of the Constitutional Court, legalizing the concept of codifying acts.

In most issues, cited supra, the result of the application of notions such as branch law, codifying acts, or foundations of the legislation was a progression in the law along an increasingly democratic direction. This, however,

69Sudebnaiapraktikapograzhdanskimdelam1993-1996,Moscow1997,40,Biulleten’Verkhovnogo Suda Rossiiskoi Federatsii 1998 No.2, 14-15. See for this case J. Middleton, “Legal Regulations on the Russian Presidential Elections”, Sudebnik 1996 No.3, 707-709.

70Braginskii, op.cit. note 17, 13.

71Letter of El’tsin of 21 July 1997, Rossiiskaia gazeta 7 August 1997.

need not always be the case.Thus, the 1991 Law “On Mass Media” provides a journalist with witness immunity. S/he does not need to reveal his/her sources if these have requested confidentiality.The editorial board has to inform the court about such sources in a criminal trial, when it has them at its disposal, but the court cannot oblige the journalist to do so (Art.41). Under the Criminal Procedure Code, a journalist is obliged to give all the information at her/his disposal. Applying the reasoning of the Lankina or Gurdzhiiants rulings would result in a holding that the rule of the media law cannot be applied.72 In my opinion, it would be unacceptable to declare the rule in the media law void, because of reasoning derived from the system of law (the reasoning in the Lankina ruling).

The difference from the situation in the Gurdzhiiants ruling is clear: there,aconflictbetweentwolawswasresolvedthatcouldbeappliedboth in the case and that would result in a different judgment. The Law “On

State Secrets” sets forth only very general rules and fails to expressly deal with the position of deputies, judges, and lawyers.Therefore, a court has to refine the rules of this law.The media law is different because it regulates the position of a journalist in a criminal trial in all details of importance.

Thus, this is really a special law; this law must be applied—even when the rule per se is not made possible by the Code of Criminal Procedure.

Foundations of Branch Legislation

In its Kaliningrad Deputies ruling (30 November 1995), the Constitutional Court used a more material concept of the foundations of branch legisla- tion when it held that the rules on the inviolability of deputies—included in regional regulations—intrude into federal competence. It asserts that FederationSubjectsmaylegislateinthefieldofjointcompetenceifafederal law is lacking; but, a regional law must resolve the question:

“in accordance with Chapter One RF Constitution, laying down the foundations of the constitutional order, other provisions of the RF Constitution, and the system of federal legal acts, based thereon, in which these provisions have been reproduced and elaborated.”

Bythemannerinwhichthequestionwasregulated,theregionalprovisions on the inviolability of deputies from administrative liability affect “the principles, fundamental provisions and institutes of administrative law and administrative liability, i.e., in their substance they relate to the foundations of administrative law, established by the federal legislation in force”.73

72See for this issue Delo No.1. P. Grachev protiv V. Poegli st.131 UK RSFSR, Moscow 1996, 11-12.

73Rossiiskaia gazeta 27 December 1995; Sobranie zakonodatel’stva Rossiiskoi Federatsii 1995

Aconflict among constitutional rights may be resolved in a concrete case by balancing these rights. As far as rights may serve as trump cards in court, this seems the correct approach where the Constitution (or the lawmaker) does not give priority to a certain right. In principle, all constitutional rights (or duties) have the same force; but this does not mean that it would not be possible to provide for certain rules in case of a conflict of rights, taking into account the lawful interests which are involved. This may be done by the lawmaker; but when the lawmaker has not done this, a court has to do it in each concrete case. Such a conflict of rights does notdeprivethelawmakerofher/hisinfluenceofbalancingtheserights,by providing that in certain situations specific interests of one of the parties (or of other groups of persons) affected by the decision in that situation may prevail. In this sense, the rule of the Constitutional Court that only ordinary courts can resolve conflicts among branches of law (or between rights or duties) in a concrete case is too general.

in 1994.The agreement means, in effect, the adoption of a uniform code of private international law in the contracting states.5

European Union

The European Parliament considers the harmonization of the law of member states in the area of private law to be one effective way of meet- ing the European Community’s legal requirements.This was recognized in a resolution adopted in 1989 requesting that a “start be made on [...] drawing up a common European Code of Private Law”.6 The European Parliament emphasized the importance of unifying contract law. Pioneering steps in this direction have been undertaken by Ole Lando (Copenhagen) on whose initiative a Commission of European Contract Law (Lando-Commission) has been at work since 1982.7 The countries of Central and Eastern Europe associated with the European Union are under an obligation to adapt their legislation to the requirements of the EU.The requirements for integration into the internal market of the EU were defined in a 1995White Paper.8

Past Experience Compared

Thesignificanceofattemptstoharmonizeandunifylawsbecomesvisible in perspective. Almost forgotten are two unsuccessful attempts:

—A uniform code of obligations and contracts, drafted by Italy and

France in 1928,9 that never entered into force.

—Auniformcodeoffamilylaw,adoptedseparately,butwithidentical texts by Czechoslovakia and Poland in 1950, remained an experiment that did not work. The codes were replaced by new legislation in 1963 and 1964, respectively.10

5F. Majoros, Osteuropa-Recht 1998 No.1, 1, 10, 20.

6Resolution of 26 May 1989, Official Journal of the European Communities 1989 C, 158/400.

7O. Lando, “Legal Harmonization of the European Contract Law in a Social and Cultural Perspective”, in Proceedings of International Symposium on Law, Economics and Business in the Melting Pot, 1996, Vedbaek 1997, 248-274. For further references, see Europarecht 1991, 379-381; 62 RabelsZ 1998, 124-127.

8European Union. White Paper, Brussels 1995.

9Commissionfrancaised’etudesdel’UnionlegislativeentrelesNationsalliesetamies.

Commissione reale per la riforma dei codici. Projet de code des obligations et des contrats.Texte definitif approuve a Paris en Octobre 1927, Paris 1929,XIX, 573.

10S. Rozmaryn, in Unidroit.L’Unificationdudroit.Annuaire1963, Rome 1964, 156-157.

Successful, on the other hand, were other examples of the unification of law:

—The three Baltic countries, Estonia, Latvia, and Lithuania, estab- lished a Joint Legal Office in 1934 with a view toward harmonizing their legislation. They concluded Conventions on a Uniform Law on Bills of Exchange in 1938 and on a Uniform Law on Checks in the same year. Other conventions were in preparation when the Soviet Union incorporated the Baltic states in 1940.11

—TheCouncilofMutualEconomicAssistance(CMEA)adoptedGen- eral Conditions for the Delivery of Goods in 1968 (supplemented in

1975). This act created a unified legal regime for the purchase and sale of goods among the member states. 12

—The Soviet Union used Principles (Osnovy) of federal legislation as a means for achieving conformity of republican codes.

UnderStalin’srule,anattemptwasmadetoimplementuniformitydirectly by enacting codes on the federal level, bypassing republican legislatures. Thus, a Criminal Code of the USSRwas drafted in the 1940s.Also prepared were all-union codes of criminal procedure and of civil procedure.

I suppose that these drafts are not to be found in any library outside of the former Soviet Union, and even on former Soviet territory they are not readily available. I have brought with me some of these texts of Soviet legislative history. This is a special occasion to honor a special person. Therefore, it seems appropriate to conclude my comments by presenting a few draft all-union codes of the Stalin period as a gift to Professor Feldbrugge for the Institute of East European Law and Russian Studies in Leiden.

11For documentation on the harmonization of the law of the Baltic states in the inter-war period (1918-1940) with an introduction, see D.A. Loeber, in Humanities and Social Sciences, Riga 1998 No.2(19)/3(20), 197-223.

12P.S. Smirnov, Review of Central and East European Law 1985 No.3, 201-213; D.A. Loeber,

Osteuropa-Recht 1960 No.1, 39.