Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

to a law (zakon) rather than to inferior acts. The present Code is more than twice as long as the previous 1964 Code. Many types of relations that used to be regulated by the Government or even by individual Ministries (deliveries of goods, capital construction, credits and accounting, insurance, etc.) are now regulated by the Code in such a detailed fashion that further specification or concretization of the Code by way of normative acts such as presidential edicts, government decrees, etc. has become superfluous. The parties may conclude their agreements expressly on the basis of the Code. In those cases where the Code acknowledges the need for additional legal regulation, it nearly always refers to statutory law rather than to lower-level normative acts (podzakonnye akty).

8.3.In order to minimize “spontaneous law-making”—i.e., laws adopted for incidental reasons or uncoordinated with the Code, etc.—the Code has for the first time in the history of Russian law predetermined the system of civil legislation. The Code expressly refers to over thirty federal laws that must be adopted in furtherance of the Code. The majority of these laws have already been adopted: for instance, the laws “On Public Associations” (19 May 1995); “On Joint-Stock Companies” (26 December

1995); “On Production Cooperatives” (8 May 1996); “On Homeowners’

Partnerships” (15 June 1996); the Air Code (19 February 1997); “On State Registration of the Rights to Immovable Property and Transactions

Related Thereto” (17 June 1997); “On Consumers’ Cooperatives” (11 July

1997); “On Bankruptcy” (10 December 1997); the Railway Transportation Charter (19 December 1997); and “On Companies with Limited Liability”

(8 February 1998). A number of other laws—the promulgation of which is foreseen by the RF Civil Code—have been debated in parliament (e.g., the laws “On the Registration of Legal Persons”; “On Mortgages”; and the Maritime Shipping Code).

8.4.The predictability and stability of civil laws—adopted in addition to Russia’sCivilCode—areconditionedbytherequirementthattheymustbe adopted “in compliance” with the Code (Art.3, para.2).This requirement (which is not unfamiliar to Russian legislation) springs from the specific nature of the Code as a system-generating law. The Russian President has repeatedly vetoed federal laws that contradicted the Code.

8.5.According to the general rule, amendments to the provisions of the Civil Code or any other civil law which is mandatory for the participants in commercial transactions, i.e., imperative (imperativnye) norms, do not affect the terms and conditions of agreements that have been concluded

previously; such terms and conditions continue to be valid even if they contradict the new norms (Art.422, para.2). The exclusion of this rule— which is quite important from the point of view of the stability of com- mercial transactions—could only be realized by making the effect of the new norms retroactive; however, this almost never happens.

8.6. In the first four years after the entry of the Code into force, it was amended a mere four times (Arts.64, 185, and 855).The first two amend- ments were of little importance, and one (an amendment to Art.855) was declared to be in violation of the RF Constitution by the Constitutional Court on 23 December 1997. In this way, despite the vastness of the scale of its application, the Civil Code during its formative years was one of

Russia’s most stable laws. In the subsequent years, less than a score of amendments have been made to the Code; given the importance of the

Code for—and the degree towhich it is applied in the activities of—legal and natural persons, it continues to be remains in our view a bedrock of

Russia’s civil society.

At the same time, it has become obvious that further improvement of the Civil Code and other civil legislation must not be stopped. A method of “repair by blocks” should help make this improvement more effective: on the basis of a careful and comparative analysis of large groups (“blocks”) of inter-related norms (of the Civil Code and of other laws), the coordinated amendments of the Civil Code and that other legislation should be drafted. The highest RF courts that have the right of legal initiative and have experience in the comprehensive application of the Civil Code should be in charge of this effort.

interesting again and sometimes required a not insubstantial degree of rethinking when forced to see them through Russian eyes. This increased consciousness, resulting from many discussions, may have helped the Russian experts to a deeper insight into the issues they had to solve.

Background

The main purpose of both codes is the general aim of every civil code: to bring certainty and predictability to the field of civil law and to create a reliable legal framework for participants in commercial activities. Their historical background has common features, when one views it from a distance and is prepared to go back to Roman law and to the pandect system followed in both codes.2 But their recent historical background differs considerably.

The new Russian Code is a result of the recent rapid and radical changes in Russian society and economy, forcing the Russian legislator to break away from many fundamental concepts of the past. At short notice, civil law had to be reformulated entirely on the basis of clearly expressed, new fundamental principles. On the other hand, it was necessary to build in safeguards in view of the many uncertainties that can be expected in a society in transition, as well as to meet, where possible, the need for continuity if only to reduce implementation problems. It turned out, indeed, to be possible to use—to a large extent—the existing terminology and technical devices. Elaborating those traditional devices in view of the new situation, the drafting commission sometimes even sought inspiration in old legislation from Tsarist times in which those devices had their roots. Still, implementation problems have certainly not yet been overcome.

TheworkontheDutchCodestartedin1947inquiteadifferentset- ting. The Netherlands traditionally has had a market economy, but after the war, the Dutch economy had to be rebuilt. There was no doubt about the underlying freedoms of civil law, such as the freedom of enterprise; freedom of contract; the freedom to accumulate property; or the free circulation of goods, services, and capital.While these freedoms had their limitations, at the time many of them were thought to be of a temporary nature. Against this background, the aim of the new Dutch Code was, in fact, a modest one. The old Civil Code of 1838 no longer contained civil law as it existed in practice, overgrown as it was by case law and legal doctrine. This was all the more the case of the commercial code of the same year. What was thought to be needed was a recodificationofexistingcivil

2BothcodeswereinfluencedbytheGermanBGB,buttoadifferentextent.Infact,The

Netherlands returned to the pandect system prevailing in Dutch-Roman law until the first codification of 1809.

law, restoring the lost balance between legislation and judge-made law. In addition, the occasion could be used to adapt the code to new practical needs and to take into account, where possible, more recent legislation in comparable countries in particular and international developments in general. Of course, this required changes—and, on occasion, important changes—with respect to existing law.The unexpectedly long time taken by this process enabled the drafters to introduce many renovations that mirrored changes in Dutch society and in the economy in the years between 1947 and 1992. But during this work, the tension between the urge for innovation and the need for continuity became a major issue, which led to a curious phenomenon. The courts, in their interpretation of the existing code, began to seek inspiration in the already-published drafts for the new code and its explanatory reports. The resulting case law was, in turn, a source of inspiration for the drafters of the code, working on it inasubsequentpartoftheparliamentaryprocedure.Thisinteractionwas accompaniedandfacilitatedbyacontinuousflowofacademiccriticismin the form of theses, comments in law journals, conferences, and so on.This criticism often made necessary repeated consultations of representatives of the different legal professions and groups of interested parties (judges, lawyers,notaries,insurers,bankers).Allthishadthedualeffectofslowing down the whole legislative process and of enlarging and intensifying the contribution of all segments of the Dutch legal practice and academic scholarship to the new code.3

As a result, practice, as well as the law faculties (including their students), were also already more or less familiar with the new code, when the bulk it entered into force in January 1992. In this way, problems of transition and implementation were reduced to a minimum, a luxury that the need for rapid and radical change in Russia did not permit.

Structure

A striking parallel between both codes is their structure, which can be defined as a special variety of the pandect system. Both codes are built up in layers, proceeding from the general rules to the gradually more and more special ones. Both codes, moreover, have in common that the general rules are not directly applicable in family law. In Russia, this subject is regulated outside the Civil Code, which contains only patrimonial law. In The

3Compare the contributions by Mr. Neleman andArthur Hartkamp, “Interplay Between Judges,LegislatorsandAcademics,TheCaseoftheNewCivilCodeofTheNetherlands”, in B.S. Markesinis, (ed.), LawMaking,LawFindingandLawShaping:DiverseInfluences, TheCliffordChanceLectures, Vol. 2, Oxford 1997, 91-112.

Netherlands, family law is the subject of the first book of the code, while the general rules concerning patrimonial law are in the third book.

Buttherearedifferences.First,thelawofinheritancemightbemen- tioned here. In the Russian Code, it will find a place in the third part of the code, at this moment in the process of final adoption. That means that it will come after the law of property (sec.II), the general part of the law of obligations (sec.III), and the specific types of obligations (sec.IV).

The new Dutch law of inheritance will be placed in Book 4.4 This book will find a place immediately after the general rules on patrimonial law of Book 3 and will precede the law of property of movable and immovable things in Book 5, both of which entered into force in 1992 together with Book 6 (general part of the law of obligations) and parts of Book 7

(specific contracts).

Another difference: the rules on legal persons are placed in Book 2 of the Dutch Code, while the Russian Code concentrates the main rules on legal persons in one chapter of the first part of the code: Chapter 4, placed in Section I (general provisions), Subsection 2 (persons). The more specific rules are left to a series of special statutes.

But apart from these kinds of variations, the subsequent layers of both codes correspond roughly to one another: the law of property, being followed by the general rules of the law of obligations, the law of contract in general and specific contracts. Again a variation: the law of tort and unjust enrichment is placed in the Dutch Code immediately before the law of contract; in the Russian Code, they come after the specific contracts.

This kind of structure has consequences for the application of the code. It makes one aware of the coherence of the system because it forces us to see special rules always in relation to the more general ones that precede it. In the Russian situation, this seems clearly an advantage because this stresses the importance of the new fundamental principles and the consequences drawn therefrom in the subsequent parts of the code. In

The Netherlands before 1992, the system had been criticized because it was thought that the resulting high degree of abstraction of the rules of thegeneralpartwashostiletotheneedsofpractice,especiallyinthefield of transactions in general in contrast to the contract law of the old code. But after 1992, this criticism has not been repeated, which might lead to the conclusion that practice, after all, can work with those provisions.This might have been expected because before 1992 the formulas contained therein were already accepted by the courts, which had to deduct them from more specific rules as an underlying concept.

4See the contribution to this volume by Ms. N. van der Horst. For the time being, Book

4 contains a somewhat modified version of the law of inheritance of 1838.

A last remark: the third part of the Russian Code contains provisions on private international law while the final part of the Code has rules governing intellectual property. In The Netherlands—though legisla- tion on those subjects is in the course of preparation—the intention of inserting them in the Civil Code has recently been contested yet again. As far as intellectual property is concerned, this seems to be based on underestimation by specialists of the importance of general rules of civil law in this field. It is true that the general part of the code has not much to contribute to private international law. But its place in the code can be justified by its function to indicate the limits of the applicability of the code in international cases and by the wish to prevent practitioners in applying the code from ignoring this international dimension.5

Scope

A perhaps still more characteristic common feature of both codes is that they cover the whole field of civil law, including categories specified as commercial (or economic) law. In the view of both countries, distinc- tions of this nature have become obsolete. Civil law—especially contract law—regulates the circulation of goods, services, and capital through all segments of society (work contracts concerning the building of huge industrial plants or the repairing of a simple watch, wholesale contracts, and retail trade, agency, banking, transport, or insurance; in short, all contracts that can be used for very different commercial and individual purposes). This requires a framework covering all civil-law relations, although—as is the case with the Russian Code—elaboration of special subjects might be left to separate statutes.

But here again, attention must be paid to a contrast.The Russian Code not only includes all civil-law provisions but in addition a set of provisions that, to Dutch eyes, would be considered as administrative law. Protection againstunjustifiedstateinterferenceis—inadevelopingmarketeconomy, even if it is still in a transitional stage—a point of utmost importance.

This explains why the Russian Code not only had to express clearly the fundamental freedoms I have mentioned above, but also had to furnish efficientremediesagainstpossibleviolations.ThesystemofArticle1(2and 3),Article 11(2),Articles 13, 16, and 306 and 1069-1071—related toArticle 46 of the Russian Constitution—is intended to provide such protection.

For instance,Article 13 makes it possible, upon certain conditions, to petition a civil (or arbitrazh) court for the invalidation of state acts that violate

5See, for a more detailed discussion, A.L. Makovskii, “A New Stage in the Development of Private International Law in Russia”, 22 Review of Central and East European Law 1996 No. 6, 595-601.

the civil rights and interests of a citizen or a legal person, eventually even normative acts. This pragmatic solution was, no doubt, facilitated by the historic context: in the Soviet concept of predominant state property, there was no reason to draw a sharp line between civil law and administrative law.6 Although some of the provisions have their origin in Soviet legislation, the system as such seems new.7 I understand that actually lawsuits of this nature are not rare. Special attention should be paid here to the criterion of proportionality as a test for reviewing state interference. This test is an essen­tial element of the fundamental rights protected by the European Convention on Human Rights and Fundamental Freedoms of 1950 and the CIS Convention on Human Rights of 1995. It is expressed now as well in Article 1(2) (second sentence), of the Russian Code in terms that correspond to similar phrases in those conventions.

ThesituationinTheNetherlandsatthismomentisdifferent.Article 107 of the Dutch Constitution of 1983—prescribing regulation of civil law, criminal law, and the law of civil and criminal procedure in general codifications—adds that general rules of administrative law should be introduced as well. The most important parts of those general rules are now in force.8 The protection of citizens against state interference has been put in the hands of administrative-law courts, in first instance the administrative sections of the raion tribunals. The kernel of the system is the right to petition a court for the annulment of decisions of administrative authorities on grounds such as a violation of law, as well as violation of “general principles of proper administration”, a kind of general standard for the conduct of those authorities. Such demands can be combined with a claim for damages. Recently, even an independent claim for damages was admitted in some cases.

6The line drawn by Art.2, para.3, of the Russian Code is certainly not a bright one. What if a citizen has paid more than was due under a tax law and bases his demand on Arts.1102-1108?Another example: the unfamiliar rule (inWestern eyes) on forfeiture to the revenue of the Russian Federation, adopted in Art.169 (invalidity on the grounds of violation of legal order and morality) and inArt.179, para.2 (invalidation on the grounds of fraud, violence, threat, etc.), both traditionally linked to invalidation on the grounds of violation of the interest of the state, as was possible under the Codes of 1922 and 1964, but abandoned in the Code of 1994.This kind of a rule might significantly endanger the position of the creditors of the guilty party, among whom are the innocent victims of the transaction.The Codes of 1922 and 1964 were—for all intents and purposes— blind to interests of creditors. The Code of 1994 has introduced many improvements in this field, but sometimes remnants of the old approach can still be seen.

7See the contribution elsewhere in this volume by Donald D. Barry.

8Some CIS countries (e.g., Georgia) have showed an interest in introducing a similar codification of administrative law and have started to consult Dutch experts in this field.

Still, the Dutch approach is much closer to the Russian one than may seem at first sight. InThe Netherlands, administrative law has for a long time remained underdeveloped. For that reason, the Dutch civil-law courts—longbeforethenewlegislation—haveattemptedtofillthisgapby adopting a line of protection against administrative authorities and their decisions, based on civil law (mainly on rules pertaining to tort). Arbitrary decisions of such authorities were considered to be a tort, giving rise to a claim for damages. In certain cases, even nonperformance of a public-law obligation was construed as a tort, leading to a judgment enabling citizens to enforce this performance. This has led now to a system that, roughly speaking, makes it possible to bring tort claims against public authorities before civil-law courts in all instances:

(a)where there is no competent administrative court; or

(b)where a competent administrative court has invalidated the decision of the public authority involved, provided that this invalidation shows that it has committed a tort.

But civil-law courts cannot judge an act of a public authority illicit if appeal to an administrative court is possible and if this court has not yet decided in favor of the citizen. On the other hand, civil-law courts, as well as administrative courts, will devote much attention to the proportionality of state measures with respect to their intended purpose.

Style, General Standards, and Interpretation

Obviously, the codes differ considerably in style; this could have practi- cal consequences for the style of interpretation. The Russian Code is elaborated in much greater detail than its predecessor of 1964, but to

Westerneyesitisstillrelativelysuccinct.Thefirsttwopartsinforcenow have 1,109 provisions. The idea is that the code has a special status as the main source of civil-law legislation; it is not the only source. Details are left in many places with so many words to separate statutes linked to it: on different kinds of legal persons, state registration, mortgage, and so on. This system has the advantage of not encumbering the code with too many special rules of minor importance, which might blur the mainlines, a reproach sometimes made as regards the Dutch Code. Moreover, it has enabled the drafters to proceed quickly, leaving the accompanying statutes to a later moment. But it does create the danger of involuntary contradictions.9

9Important here is Art.3, para.2 (second sentence): “Norms of civil legislation in other laws must conform to this code.” This was intended to prevent contradictions, but