The author examines problems of systematization of mining and smelting legislation as a constituent part of entrepreneurial legislation.
Body of laws; legislative system; business code of laws; business law; Mining and Metallurgy law; branch of economy/industry
Mining and Metallurgy law in modern Russia: problems of taxonomy (problem definition)1
Last 10-15 years witnessed a new codification of the main branches of law as the most profound form of taxonomy. The branches are: the civil (along with the family law), criminal, remedial, administrative and labor law. Of prime importance is that the unification has covered those branches that have previously included legal norms from random sources of law: Codes adopted: Tax, City planning, Customs, Budget. Emergence of the codes as well as that of the regulations with the branches of law and legislation, which codify the industry, speaks for a certain emerging trend in development of law and legislation. The Codes resulted from identification of regularities with the system of law and legislation as an exterior form of reflecting these processes2. The above trend has been expeditiously implemented and maintained by the legislator. Thereby both the entrepreneurial (economic law) and the mining and metallurgy (hereinafter MM) law are inevitably linked in the general line of regularities of existing law and legislation development (and, without limitation, in the law development processes taken place with a number of countries including the conventionally non-unified common law in the countries which belong to the British and American law system3).
Among main legal measures of economic impact we specifically reckon regulatory legal acts (regulations) which regulate the intercourse in the MM branch of economy and which, according to our reckoning, make a special branch of legislation. Speaking of the expediency, feasibility of individualization and avowal of the MM legislation as a body of rules which regulate business (entrepreneurial) relations in the MM branch of economy along with the mining law, environmental management law, we can point out the following.
According to R.N. Savelieva it is advisable to a certain extent to stand out the environmental management law if by the environmental management we shall mean the aggregate of all forms of exploitation of natural resources and measures of their protection. To this effect we need a general statute named "On the fundamentals of environmental management", which prescribes main rules of exploitation of various types of natural resources and such a statute could become the backbone one. Within the statute we objectively need the codified regulatory acts of relations depending on a type of natural resources in the area of use of land, forests, water as well as in that of power resources to which oil and gas belong to. These relations should be regulated by a special statute 4. P.G. Lakhno suggests regulating of the relations by the 5.
I.A. Ignatieva concludes that in the context of the Russian environmental management legislation it is hard to say that on the level of legal regulation the legislation is self-sufficient for successful meeting the challenges of environmental protection and sustainable use of natural resources. Nothing but a unity theory of the legal regulation of environmental protection and management relations can facilitate the application of the subject legislation along with increasing of its quality and efficiency6.
V.V. Kruglov divides industrial legislation into two groups: legal acts of environmental legislation and its other branches which regulate their activities and place them under control of environmental standards as well as strengthen organizational, legal and economic guarantees of their practical use and enforcement7.
V.S. Belykh is correct in saying that formation of legislation which gives an impetus to business and development of domestic industry should be implemented through the following pattern: codified act - federal statute - regional statute8.
With the above system we suggest the following sequence of regulatory legal acts: Business/entrepreneurial code which is to regulate the rules of government control of business in general as well as the principles of contractual control of business (economic) relations, i.e. the federal law named "On the principles of environmental management>; the federal program law "On development of MM sector of economy"; the special federal law "On coal and ore", the regional law "On coal and ore". Given the subject of legal regulation the above statutes should be with the system of business law.
As for the co-relation between the MM legislation and the rules of mining law it is essential to note that. Before revolution of 1917 in Russia the mining law was recognized as an individual branch of law intended to regulate mining businesses in their relations with government and individuals9. In post-revolutionary Russia for a long while the mining law had not been recognized as an individual branch but rather that with the land law or with the natural resources law10. Self-sufficiency of the mining legislation was emphasized by A.M. Kaverin, G.S. Bashmakov, N.I. Krasnov11, N.A. Syroyedov12, N.B. Mukhitdinov13. L.A. Zaslavskaya determined the mineral resources legislation as a self-sufficient branch of legislation14. The mining law development concept was worked out by B.D. Klyukin15, O.M. Teplov16, A.N. Kurskiy17.
Existence of the system of rules pertaining to the mining legislation, which deals with the mining relations which occur in the context of mining development and non-renewal exploitation, is not challenged today. Therefore for mining legislation which 'is severely retarded'18, the scientific literature suggested creating a certain system of legal acts which 'is to take in to account both the structure of mining branches: coal, oil and gas, iron and steelmaking, and main institutes of mining law including exploration, extraction, use of underground areas, the institute of licensing, payments for resources and etc.'19.
However with the subject MM sector of economy the regulation of relations is not limited just to the rules of mining law as long as this system of economy covers both relations in the area of exploration and survey and those of mining, transporting, metallurgical treatment and sales. This group of public relations has a feature of uniformity where coal, ore and steel products as the objects, provide integration of the elements. Relations of exploration, survey and extraction/mining have a special character. In virtue of the fact that a certain system of legal acts has been already formed, which regulate the subject legal relations, we can speak of a logical, objective need to stand out the body of rules of the MM legislation. A part of the mining legislation in the area of subsurface management for exploration and survey of coal and ore may be included into the system of MM law.
At a certain stage of legislation development under any system of law the increasing number of laws and the other statutes leads to perception of necessity of its systematizing. Business legislation of Russia and that of MM as an integral part of the above won't apparently avoid that.
S.S. Alexeev while marking off between a system of law and a system of legislation highlights the fact that the system of legislation, unlike the system of law by itself, features agility, direct dependency on the human factor and the lawmaker's judgment. Regulatory acts are published at different times by different and occasionally non-intersubdominant rule-making bodies. Many acts are approved in the context of certain specific events or special problems in activity of governments and its bodies. Sometimes the acts appear to be discordant if not conflictive20.
Subject matter of business legislation in general and that of MM in particular manifests itself in the fact that a lot of regulations which control similar relations, are united into a unified and ordered system.
Most complete idea of systematization significance for the system of law and legislation is given by A.S. Pigolkin. He links the necessity of legislation systematization to: a) the development of legislation; b) restructuring of regulations required; c) creation of conditions for proper and fast navigation in legislation; d) goal-oriented legal enlightenment, scientific studies and training of students21.
Result of all effects and functions of the business legislation systematization shows that the MM legislation systematization activity is not an end in itself. It is performed to improve both the content and the form of MM legislation so as to make it friendlier for using and ultimately effective in terms of meeting the performance targets of legislation. According to R.Yering 'the superior goal of law is in realization of material justice rather than in eliminating the possibility of abuse of power in lawmaking'22.
I.A.Ignatieva makes a conclusion that in the context of individual branches of legislation the taxonomy study on one hand is to obtain effect-oriented and specific features. Proceeding to the comprehensive analysis of regulatory legal (primarily of legislative) acts from the point of their interrelations as well as discrepancies, redundancy, gaps and the other deficiencies and concurrently, on the other hand, increasing the level of legal control, the contents of the legal norms23. The analysis is logically followed by the development of proposals on improvement of the subject acts. This is properly the reason why the taxonomy manifests itself as a form of constant development of legislation24.
'Law - as R.Yering wrote - is not an end in itself but rather the means to an end. Determination and securing of the living conditions of society should be the ultimate end of both state and law: - law exists for the sake of society rather than vice versa'25. In this context the goals of business (economic) legislation (developed in science) predetermine the taxonomy goals of MM legislation. The taxonomy should be performed to maximize the efficiency, quality and stability of legal control of relations in the MM sector for maximum profit and satisfaction of social needs. This is to be the ultimate goal of any MM legislation taxonomy efforts.
With this aim in mind we have to identify the MM legislation taxonomy objectives which enable to emphasize specific areas of activity to obtain the goal stated. With that a number of taxonomy objectives are predominantly effect-oriented being significant for taxonomy as an area of activity for development of the MM legislation. A part of such objectives comes from the general subject matter of legislation taxonomy. The objectives are: 1) eliminate the legal control collisions and gaps within legislation, take other measures to perfect the legal norms contained with the MM legislation (improve the conceptual mechanism, the wording of specific branch related norms, aspire to the best exemplars of those with the foreign legislation along with the capabilities to use them, ensure compliance with established international agreements and etc.); 2) negotiate the unjustified narrowness of regulatory areas of various laws, extend the regulatory legal acts; 3) improve the quality of the MM legislation mechanisms in terms of consideration for the achievements of juridical science.
At the modern stage the list of objectives should advisably be extended: identify the scope of normative material to be systematized; make inventory of the acts which regulate relations in the MM sector of economy; identify the required detailing degree of legal control of relations in the MM sector of economy on the legislative level; ensure strict compliance of the MM legislation being systematized with the Constitution of Russian Federation;
Concurrently the taxonomy of the MM legislation as an integral part of business legislation should solve a number of scientific objectives which indirectly affect the implementation of the abovementioned effect-oriented objectives.
Theory of business law uses a comprehensive scientific approach to taxonomy of business legislation. Thus V.S. Belykh comes to conclusion that business legislation should be based upon the business area as a criterion. The area gives rise to special type of public relations. First group covers relations between businesses. Such business relations are customarily referred to in the literature as horizontal relations. Second group covers relations between businesses and national/local governments. These relations may be called vertical. Their significance with the business legislation is much lower than that of the horizontal ones. The final group includes the incompany (corporate) relations formed between the company's divisions26.
The 'business area' criterion enables to distinguish between the business and economy legislation; the latter deals with relations in the area of husbandry27.
Speaking of the complex nature of the business legislation V.S. Belykh points out that the comprehensive (unlike the branch) legislation is marked by an overwhelming predominance of various branch related regulatory acts which contain norms of various branches of law. Development and publishing of the comprehensive acts is dictated primarily by the fact that the regulated relations have common purpose. Single branch regulation is incapable (and is not intended for) of ensuring proper regulating of relations which are interrelated and integrated by common purpose28.
According to V.F. Popondopulo any regulatory act has its range of regulation. Certain public relations as a subject of legal control are characteristics of a branch of law rather than that of legislation. Business legislation which is built up with practical interests in mind takes into account the entitative links between business relations (private relations) and those of public management of business activity (public relations), and comprehensively regulates the entire business area29.
Thus we believe that the MM legislation as an integral part of business legislation comprehensively regulates the business area with the MM sector of economy. The MM legislation features the predominance of regulatory acts of various branches, which contain regulations of various branches of law.
Modern level of business legislation dictates the following objectives to be set for the science of business law: 1) set criteria according to which the regulatory legal acts are covered by the system of business legislation; 2) substantiate the use of specific forms of taxonomy for various stages of business legislation development according to the formulated objectives; 3) substantiate and document clear-cut conclusions on the framework and capabilities of lawmaking by constituents of Russian Federation in regulating the business relations30; 4) clarify the significance of law-enforcement practice for implementation of the business legislation taxonomy.
Setting of goal and objectives of the business legislation taxonomy including that of the MM will henceforth positively affect the lawmaking activity.
Scientific support of the MM legislation taxonomy as an integral part of business legislation involves documenting of basic terms of the activity, which enables maximum removal of the human factor effect from taxonomy of business legislation as a theoretically and practically complicated issue.
Which regulatory legal acts in particular are to be merged and codified is one of the first challenges arising at the stage of the MM taxonomy implementation. I.A. Ignatieva shows that the chosen form of taxonomy directly affects the number and the legal effect of the regulatory legal acts31.
Thereby we believe that 'legislation' should be defined in the modern business legislation, should be applied exclusively to the regulatory acts of that system and used in the codified act. The approach may be applied in the course of the business legislation taxonomy by means of incorporation and codification which involve appropriate amendments to the point of legal regulation. In the course of the Business Code development the above conclusions should become a basis of a new individual paper which is to include the term 'business legislation'. The MM legislation should be defined along with identification and justification of its legal regulation range judging from the meaning of legislation as the system of regulatory acts which control relations with the MM sector of economy.
Analysis of the general subsurface management legislation and special regulatory legal acts which control relations in the MM sector of economy as well as a comparison of the main MM complex development trends with the existing legal groundwork shows the necessity to develop the National Program of the business legal groundwork with the given sector of economy which provides for the development and approval of the special regulatory legal acts and managerial efforts.
Main sections of the Program can be determined according to the main MM sector development trends with account of the Program of the business legal groundwork with the oil and gas sector of economy32:
1. Efforts on increasing the performance of geological coal and ore deposits exploration within the framework of the 'National long-term program of mineral wealth studies and reproduction of the mineral resource base of Russia based upon a balanced consumption and reproduction of mineral resources'; those on harmonious exploitation.
2. Support for the balance between the interests of the government and steelmaking companies and social institutions interested in sustainable operation of the complex.
3. Support for increasing competitiveness of products, harmonization of Russian and foreign standards for metal products.
4. Support for dynamic implementation of innovations, formation of favorable investment climate.
5. Support for corporatisation (construction of the vertical and horizontal structure) within the branch, improvement of the branch related regulatory and procedural base.
6. Support for development and implementation of a mutually favorable policy among the CIS members in the area of geological exploration and use of mineral resources; integration into a system of international export relations; improvement of the exports management.
7. Support for the development of a set of the regulatory legal acts which suggest flexible (stimulating) taxation.
8. Support for improvement of the regulatory legal base in the area of collection, recycling and selling of scrap and non-ferrous and ferrous metal wastes aimed at streamlining of a non-ferrous and ferrous metal scrap turnover and improvement of the branch control.
We propose development and approval of the regulatory legal acts for the above main trends, aimed at filling the gaps revealed with the legal groundwork.
1 O.A. Gerasimov, Assistant Professor of the Business law dpt. of Ural State University of Law, PhD Science of law, Advisor to the Vice-President of OOO "EvrazHolding" on law matters.
2 I.A. Ignatieva. Environmental Law of Russia: Theory and practice of taxonomy. Dis. : PhD Law. М., 2007. С. 17.
3 See: Taxonomy of British laws: consolidation against codification // Soviet state and law. 1986. № 2. P. 98-103; S.V. Zapolskiy System of continuous codification of legislation in the USA: experience of the 80s // Preparation and approval of laws in a law-governed state. M., 1998. P. 376-391.
4 R.N. Salieva Legal groundwork of business development with the oil and gas branch of industry. Dis. :Doctor of Law Tyumen. 2003. С. 94.
5 P.G. Lakhno Power legislation of the Russian federation // Oil-gas, power industry and legislation. Informational and law publication of the fuel and energy complex of Russia. Moscow. 2001-2002. P. 22-23.
6 I.A. Ignatieva Collected book P.145.
7 V.V. Kruglov Legal platforms of environmental policy in industrial region. Yekaterinburg. 2006. P. 175-176.
8 V.S. Belykh Business law in the body of law in Russia // Science of law. 2001. № 1. P. 136
9 A. Yanovskiy. Mining legislation. encyclopaedic dictionary, ed. by Brokgauz and Efron Saint Pet. 1893. V17 P.246
10 R.N. Salieva Collected book P.96
11 G.S. Bashmakov, A.M. Kaverin, N.I. Krasnov Mineral resources legislation М.: Legal literature, 1976 P.11.
12 N.A. Syroyedov Scientific basis of the law mining codification // Soviet state and law. 1969. № 4. P. 36-41.
13 N.B. Mukhitdinov Legal relations in mining. Synopsis of a thesis for the academic degree of Doctor of Law Alma-Ata, 1973; N.B. Mukhitdinov Theoretical problems of Soviet mining law. Synopsis for the academic degree of Doctor of Law Alma-Ata, 1980.
14 L.A. Zaslavskaya Mineral resources legislation // Soviet state and law 1977. № 7. P. 63-70.
15 B.D. Klyukin Formation of Russian mining law on the basis of mineral resources law // Lawmaking and economy. 1995. № 17-18. P. 3-8.
16 O.M. Teplov Development of mineral resources law within the mining law of Russian Federation // Business and law. 1995.№ 8. P. 27-32.
17 A.N. Kurskiy On the concept of the Mining Code of Russian Federation // Mineral resources of Russia. 1966. № 5. P. 37-40.
18 B.D. Klyukin Legal framework of the mining law of Russian federation: modern challenges and methods of improvement // Environmental law. 2002. № 3. P. 23
19 B.D. Klyukin Formation of a new mining law of Russia // Journal of Russian law. 2001. № 3. P. 60-61.
20 S.S. Alexeev General Theory of law: textbook - 2nd edition, revised and amended -М.: TK Welby, Printing House Prospekt,
21 Legislation systematization in Russian Federation / Under the editorship of A.S. Pigolkin Saint-Petersburg., 2003. P. 30.
22 R.Yering. Goal in law Т. I. Saint-Petersburg., 1881. P. 312.
23 I.A. Ignatieva Collected book P.20
24 See: A.S. Pigolkin Russian legislation taxonomy challenges // Law: creation and interpretation / Under the editorship of A.S. Pigolkin M. 1998 P.56
25 R.Yering. Goal in law Т. I. P.308 -309.
26 V.S. Belykh Codification or consolidation of business legislation: What shall be done? // Business, management and law. № 3. 2006. P. 12
27 ibid P. 12-13.
28 ibid P. 15
29 V.F. Popondopulo Business legislation and challenges of its improvement // Business, management and law. № 3. 2006. P. 22
30 For resolving the issues of legal regulation of market relations Article 71 of the Constitution of Russian Federation judges from the fact that civil legislation, civil procedure and arbitration procedure legislation generally belong to the Federal jurisdiction. However Article 72 of the same refers the civil issues of ownership, use and management of land, mineral wealth, water and other natural resources to the joint jurisdiction as well.
31 I.A. Ignatieva Collected book P.151
32 See: R.N. Salieva Collected book P.122-128.