Melnichenko R. G. Non-traditional sources of soliciting law. interpreter Maximov M.O.
The basic sources of law in Russia are regulatory legal acts: international treaties, laws, subordinate acts. Together with those mentioned above, some other non-traditional sources are distinguished- They are: corporative acts, customs, precedents. Their being non-traditional has led to the fact that they are not enough studied and practiced. However, in some spheres of law these minor sources are often applied and therefore, demand special attention. The sphere includes soliciting law - a range of norms regulating lawyers' activity. Let us try to analyze these non-traditional sources of law in soliciting legal relations.
Corporative acts. Corporative act is a source of law defined formally. Two kinds of corporative acts are distinguished in the association of lawyers. Corporative acts becoming effective by way of reaching preliminary agreement and by way of further agreement of the state. Some decisions of the Federal Advocates1 Chamber are included into the first kind. According to the Law on Practice of Law, The Russian congress of lawyers adopts the code of professional ethics of a lawyer. The latest one was adopted in 2003. Therefore, from the point of view of the theory of the law, the state has given its lawmaking obligations to the corporation of lawyers itself while the latter is granted the right to fix ethic norms which automatically become legal. This kind of corporative acts includes decisions of the regional advocates' chambers of Russia which act as law-makers too. For example they produce acts regulating the services of a lawyer. The lawyer registrated in this particular region must obey the norms of his/her advocates1 chamber. On default of these norms are violated the sanction is supposed by the Law on Practice of Law - the lawyer is deprived of his/her status "for violating the decisions of the advocates' chamber".
The second type of corporative acts of the advocates' association, effective by way of further agreement of the state include constitutive acts of advocates' corporations. For example, the charter and the constitutive treaty of the Bar and the partnership treaty of the law office. After being created these documents pass administrative procedure in the state body which is authorized to license juridical persons.
Researchers argue whether corporative acts can or cannot fix the norms presupposing legal responsibility. For example should the court do "if a complaint is filed from an ex-lawyer deprived of his/her status on default of the norms of the advocates' ethic adopted by the same lawyers? For clarifying, let us divide into elements the legal norm according to which a lawyer can be deprived of his/her status for non-fulfillment of the norms of the advocates' ethic. Hypothesis: commitment by a lawyer of an action belittling the authority of the advocate ship (p. 5 p. 1 article 17 of the Law on Practice of Law). Disposition: a lawyer must not impose his/her services to a person needing juridical help (article 9 of The Code of professional ethic of a lawyer). Sanction: the lawyer is deprived of the status (p. 1 article 17 of the Law on Practice of Law). As we see, legal responsibility here is fixed by a regulatory legal act.
Corporative acts are considered to be sources of law on the basis of the Law on Practice of Law of the Russian Federation, which in particular includes lawyer's obligation to obey the code of the professional ethic. A part of these norms is contained in the regulatory legal act itself. For example the interdiction of an advocate taking the procuratory in case when he/she is personally interested in the case, interdiction of public announcements about the guilt of a client proved or the interdiction of the defense taken. However, the most part of the ethic norms is in supplementary sources - corporative acts.
Customs. A custom is a source of law which is not defined formally. After being sanctioned officially by the state a custom becomes a law. We should say that we are not completely agree with the definition of a custom as source of law which is popular in the theory of the Russian law as with the term "legal custom". We define a custom in a wider sense - as a bearer of legal norms. A custom is a source of law. containing legal norms or legal decisions which are not registered formally or applied in cases of hard violations of other social norms. At the beginning of the last century E. N. Trubetskoi wrote: "If we take into consideration only those customs which are registered formally, we will have to come to a conclusion that in the earliest states the law did not exist -the conclusion none of the educated lawyers will never agree with".
The sphere of applying of the soliciting law is so vast that all the norms it includes cannot be fixated formally either in regulatory legal acts or in corporative acts. Particularly it concerns the norms of advocates' ethic. The origin of the term "ethic" is Greek - from ethos - custom. It is customs which contain a part of norms regulating ethical behavior of lawyers. There are several reasons for the situations in which a user of a law being in the Russian legal system (where the dominating source of law is a regulatory legal act) has to turn to a custom.
First, a normal advocates' activity takes a wide range of regulators of the soliciting legal relations. Regulatory legal acts cannot cope with this task. Any legal system can contain a limited number of norms defined formally. Going beyond this limit will make it more difficult for a user of the law not only to apply but even to learn about all this range of laws and subordinate acts. As a result they are simply ignored. That is why a law-maker should follow tha principle - law-making does not study minor things, consciously leaving some important social relations behind. Custom is not prone to inflation, when the custom is not needed anymore, it is "forgot". Customs fill the legal vacuum which appears because of the natural borders of regulatory legal acts.
Second, constantly accelerating scientific and technical progress brings changes to the soliciting legal relations so quickly that only a custom can regulate them. For example, the situation wit the World Wide Web and the necessity to regulate issues on lawyers' advertisements. Such a negative phenomenon as spam has stimulated some careless lawyers to use it as a method to advertise their activity. And it is a custom that can quickly react to it.
Third, ethic norms cannot be the same for lawyers in different regions of Russia. Objectively, they differ - for example for a Moscow lawyer an for a lawyer from Urupinsk. These different norms take into consideration peculiarities of different regions.
So what is the formal basis for the customs to be regarded as sources of soliciting law? In Article 17 of the Law on Practise of Law there is a statement according to which a lawyer is deprived of his/her status in case of committing an action marring the honor and dignity of a lawyer and advocate ship. As we can see there is not any reference to the Code of professional honor of a lawyer which, as we have mentioned before, is a corporative act. It means that terms "honor of a lawyer" "dignity of a lawyer" and "prestige of advocate ship" are defined not only in corporative acts but also in customs.
Precedents. In soliciting law three kinds of precedents are distinguished: judicial, administrative and precedents created by the advocates' corporation itself.
Although formally, judicial precedents are not sources of Russian law, a range of norms of soliciting law depend on decisions of a court. A special role is played by the decisions of the Constitutional court of the Russian Federation. For example, the case "B. V. Antipov, R. L. Guitis, S. V. Abramov against Russia". According to the results of the arbitrary practice, the informational Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation, September, 29 1999 "On different questions of judicial practice arising while regarding arguments on soliciting treaties" was published. In its decisions the Supreme Court of the Russian Federation often addresses the soliciting law.
Administrative precedents include acts of state bodies which contain legal norms but which are not regulatory legal acts. These acts are adopted while generalizing administrative practice. So the Ministry of Justice is obliged to supervise lawyers' activity. The Ministry, supervising the activity of the bar edits informational letters. For example, "About the activity of the territorial bodies of Ministry of Justice on exposing and suppressing the violations of legal norms while registration advocates' offices and their usage of stamps, announcements, outdoor signs and other attributes". This letter is an administrative precedent of generalizing the practice of the Ministry of Justice.
Legally, the principle of self-governing is used in organizing the activity of advocate ship. That is why the precedents of the advocate ship's self-government are the source of the soliciting law. A lot of precedents are created on this basis during disciplinary practice or qualifications commissions. This body is obliged to reveal ethic norms while trying a case of a lawyer. Let us give an example of using customs in lawyers' practice. A Lawyer N. got the information about legal cases in a regional court and sent letters to the clients where he asked them "to come to his legal advice office for clarifying details of the defense at the trial". Summons like this were not received by the legal advice office. The date of the letters sent by N. was earlier than the date of the trial written on summons. The conclusion was made that such N's actions violate the norms of lawyers' professional ethic, and, according to the decision made, N. was excluded from the bar. As we see the qualifications commission, trying the complaint, revealed the custom and then applied it to this very case.
To our opinion, applying the so called supplementary sources of law in soliciting legal relations will enrich not only the practice of law but also the theory of law.
|Почтовый адрес: г. Волгоград, ул. Порт-Саида, 9-29. e-mail: email@example.com http://melnichenko.t-k.ru|