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Problems of Correlation between Norms of the Civil Code of the Russian Federation and Special Regulatory Legal Acts, and Efficiency of Legal Support for Protection of Rights of Energy Market Players
 
Код статьиS231243500022074-9-1
DOI10.18572/2410-4396-2019-2-104-111
Тип публикации Статья
Статус публикации Опубликовано
Авторы
Хорошева Наталья Валерьевна 
Аффилиация: Arbitration Court of Saint-Petersburg and the Leningrad Region of the Russian Federation
Адрес: Russian Federation, Saint Petersburg
Название журналаПравовой энергетический форум
ВыпускВыпуск № 2
Страницы104-111
Аннотация

Arbitration currently considers a large number of disputes in the field of power supply, special judicial structures are formed in regional arbitration courts. Issues of correlation between the norms of the Civil Code of the Russian Federation, special federal laws, and subordinate regulatory acts in the field of energy supply, which require settlement of conflicts, arise in practice. Legal conflict in the energy industry arises in case of a mutual discrepancy between legal norms and regulation of similar public relations, which the judge shall balance or link so that the legal mechanism would become efficient. Today there is a tendency to ignore the principle of exclusivity of regulatory legal acts, therefore, first of all, a good law is necessary in the context of the priority of general stable provisions of the Civil Code of the Russian Federation. This article analyzes the problems of correlation between the norms of the Civil Code of the Russian Federation and special regulatory legal acts. The author comes to the conclusion that legal conflicts in the energy industry arise when legal norms do not coincide and in regulation of similar public relations, conflicts should be settled so that the legal mechanism could efficiently work. To activate the doctrine in lawmaking as well as in court proceedings complicated by the need to settle conflicts between the rules of law at various levels, including disputes arising out of legal relations in the energy sector, it is proposed to most actively apply the doctrine through scientific expert activities involving specialists in this field.

Ключевые словаCivil Code of the Russian Federation, civil law, energy law, energy legislation, contracts in power supply
Получено28.02.2019
Дата публикации01.06.2019
Кол-во символов28893
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1 In the period of Russia’s integration into the world market economy, the role of wellregulated and actually applicable civil laws, which should comply with the latest world trends in this area, is significantly increasing. Civil law regulates property and monetary, and personal non-property relations involving citizens, and contractual relations in the field of civil turnover involving organizations. The majority of contractual legal relations involving legal entitiesand citizens acting as entrepreneurs are governed by the law of obligations. Legal relations in the economic turnover arise with regard to movement of material goods: things, money, work, and services in the fields of production, circulation, production or personal consumption, that is, act as goods.
2 The property nature of civil (commercial, entrepreneurial) contracts requires a very clear interpretation of the provisions of the current legislation and their correct application by the counterparties. It is not by chance that in law enforcement practice, it is said that “civil jurisprudence is an exact science” and the mistakes made by the subjects in application of civil law or their poor legislative control may lead to certain negative consequences of a property and monetary nature in an indefinite future.
3 Federal Law dated December 28, 2016, No. 497-ФЗ added clause 2.1 to Article 3 of the Civil Code of the Russian Federation. According to it, the Civil Code of the Russian Federation shall be amended, and the provisions of the Civil Code shall be suspended or invalidated by individual laws. Provisions providing for amendments to the Civil Code of the Russian Federation, suspension or invalidation of the provisions of the Civil Code of the Russian Federation “may not be included in the texts of laws that amend (suspend or invalidate) other legislative acts of the Russian Federation or contain an independent subject of legal regulation”.
4 However, the legislator left unchanged the wording of clause 2, Article 3 of the Civil Code of the Russian Federation, according to which civil law consists of the Civil Code of the Russian Federation and other federal laws adopted in accordance with it, which regulate the relations specified in clauses 1 and 2, Article 2 of the Civil Code of the Russian Federation.
5 Petrov A.A. differentiates positive and negative subject hierarchies [1]. In the course of increase in the legal force of a codified legal act (the civil code is a codified federal law) as compared to other similar acts in a certain area of regulation (for example, special federal laws in the energy sector), there is a positive subject hierarchy. Reduction of the legal force of an act as compared to the lower-level acts is a way of ensuring superiority of lower-level special rules over higher-level acts or literal reversion of a hierarchic connection.
6 According to the second paragraph of clause 2, Article 3 of the Civil Code of the Russian Federation, civil norms contained in other laws shall comply with the Civil Code of the Russian Federation, that is, according to the above logic, a positive subject hierarchy ensuring the unity of legal regulation of relevant branches of law and legislation is applicable.
7 It appears that inclusion of clause 2.1. in Article 3 of the Civil Code of the Russian Federation does not fully correlate with clause 2, Article 3 of the Civil Code of the Russian Federation, which can complicate the legislative process as well as law enforcement and court practice. Problems of legal procedures are reflected in scientific works of many scientists and special publications of practicing lawyers [2].
8 Attention should be paid to the opposite approach of Kurbatov A.Ya., Professor of the Department of Civil and Entrepreneurial Law of the National Research University Higher School of Economics, Doctor of Law, about invalidity of priority of the rules of the Civil Code of the Russian Federation as a codified act over other federal laws. He considers the priority of the Civil Code of the Russian Federation to be unconstitutional, defining it only as a method of legislative procedure [3]. Kurbatov A.Ya. proposed to exclude the priority of the Civil Code of the Russian Federation, to change general and special rules at the same time since the effect of the amended general rules will block special ones. At the same time, the Constitutional Court of the Russian Federation did not recognize the legal norms establishing the priority of the Civil Code of the Russian Federation as invalid or unconstitutional.
9 The Constitution of the Russian Federation does not provide for a hierarchy of legal norms within acts of the same type. According to V.D. Zorkin, the President of the Constitutional Court of the Russian Federation [4], the general part of the Civil Code of the Russian Federation should have the status of a constitutional law.
10 Filippova S.Yu., Assistant Professor of the Department of Commercial Law and Fundamentals of Law of the Lomonosov Moscow State University, Candidate of Legal Sciences, believes that the Civil Code of the Russian Federation, in its essence of a codified act, should consolidate and give integrity to the entire system of civil law, especially in general provisions [5].

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