Principles of Law: Problems of Enforcement

Abstract

Federal Law «On Mandatory Requirements in the Russian Federation» defines the rules for «better regulation» for economic relations. The Law pursues the idea of the regulatory lifecycle with engaging the public in the development of regulatory acts and evaluating their influence on business, society and State. Also, the Law defines the principles to be applied in these processes (principles for establishing and evaluating the application of mandatory requirements). In the article the principles of law are considered on the example of the principles stipulated by the Federal Law. The content of these principles gives reason to assume that they have a constitutional nature disclosed in the decisions of the Constitutional Court of the Russian Federation. This may mean that the content of the principles of establishing and assessing the application of mandatory requirements is broader than literally formulated in Federal Law and in practice can be supplemented by the positions of the Court in terms of understanding the relevant principles. Therefore, the main purpose of this article is to demonstrate the constitutional nature of the principles and show their content and usage. Author claims that the principle of legality, the principle of substantiation of mandatory requirements, the principle of enforceability of mandatory requirements develop the constitutional principles of proportionality of restrictions on rights and freedoms, balance of private and public interests, forming a test for proportionality of restrictions generated by mandatory requirements. In the article it is also shown that the principle of legal certainty and consistency, the principle of openness and predictability are based on the principle of maintaining confidence in the actions of the state, arising from the constitutional principles of legal equality and justice. In considering the principles of the Law, the author focuses on their regulatory potential and problems of implementation, including the issues of regulatory impact assessment and ex post evaluation. Moreover, the article examines the legal content of the basic notions of the Federal Law: mandatory requirements, legally protected values, the risk of harm (damage) to legally protected values.
For citation: Velichinskaya Y.N. (2022) Principles of Law: Problems of Enforcement. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 180–207 (In Russ.). DOI:10.17323/2072-8166.2022.1.180.207.