September 6, 2010 at 15:18Mistakes in laws
Laws are written by people, and people tend to make mistakes. From this it is very easy to conclude that the texts of laws, and of other normative acts, may be incorrect.
How to identify an error in the text of the law - what if the legislator wanted to write exactly that? The number of normative acts is huge, and in order to fully understand the meaning of a particular document, you need to consider it in the context of “nearby” complementary and concretizing acts. However, most often in the “normative” there are simple logical inconsistencies, cases mismatches, missing words, and the like. Sometimes these errors are eliminated, but most of the inaccuracies described in the article are contained in the current versions of normative acts.
Codes
Most go to the codes, the purpose of which is to collect the rules of law of a particular industry and state them in a systematic way. To the “ordinary” errors that occur during the writing of the text, systematization errors, for example, incorrect cross-references, are added.
For example, article 109 of the Customs Code refers to the requirements for a temporary storage warehouse. “Temporary storage" is a special customs regime, which is characterized by certain rules for handling imported goods. In particular, it should be stored in “temporary storage warehouses”. Such a warehouse is included in a special registry, for this it must meet certain requirements.
The third paragraph of the article refers to the civil liability risk insurance contract, which must be concluded by the owner of such a warehouse: “The insurance amount, within which the insurer undertakes to compensate for the occurrence of each insured event to persons whose property interests are caused, is calculated based on the usable area or useful volume and is determined by the rate of 3,500 rubles per square meter of usable area, if as a customs warehouse used outdoor playground , or at the rate of 1,000 rubles per cubic meter of useful volume if in a customs warehouse premises used , but can not be less than two million rubles. "
It would seem, is nothing strange if you do not know what" customs warehouse"- this is not just a phrase, but another special customs regime. In this regime, goods must be stored in a" customs warehouse ", which also has certain requirements. Among them, there is also a requirement to conclude a civil liability risk insurance contract. And if we compare the relevant paragraphs of Articles 109 and 227 , we’ll understand where this “customs warehouse" came from in that article, which should not be there.
Yes, yes: the text of these paragraphs is almost the same. In Article 227, however, there are no words “calculated on the basis of useful area or useful volume and "they added in Article 109. But the" bonded warehouse "obviously forgotten from her black out and replaced by" temporary storage ".
Well, think of a warehouse and warehouse. Apparently, they forgot that the “warehouse” is not just such a building, but a customs regime ... Here is such a legislative copy-paste. But in these cases, the meaning of a normative act can still be understood.
But the drafters of paragraph 1 of Article 110 of the Arbitration Procedure Code seem to have forgotten to include the most important passage in it. This article speaks of the distribution of legal expenses between the participants in the case, and its first paragraph reads: “The legal costs incurred by the persons participating in the case, in whose favor the judicial act was adopted, shall be recovered by the arbitration court from the side .” It is not clear from which of the parties they are recovered. . According to general rules - with a loser, but this general rule, as we see, is not reflected in the text of the law.
Returning to the “warehouses”, we recall also article 908 of the Civil Code . Its first paragraph reads: “ A warehouse is recognized as a general warehouse if it follows from the law and other legal acts that it is obliged to accept goods for storage from any goods owner.” Who is this " she " is not reported, and the comma after the "law" does not look appropriate: in theory, there should be an "or" ...
This is one of those rare cases when an error is not fixed when a change is made, but is made: after the “legal acts”, the original version also contained the words “ or permission (license) issued by this commercial organization ”.
After the adoption of the law "A lot of other normative acts had to be brought into compliance with the licensing of certain types of activities . The authors of the law , which were amended, simply went through the texts, cutting out the words about licensing from everywhere . Some phrases after that lose their meaning, they seem to they didn’t think ... The
Civil Code , in general, is lucky for such mistakes: for example, an incorrect ending in Article 790 altogether changes the meaning of what is written to the opposite: “In cases where, in accordance with the law or other legal acts, the mouth the privileges or advantages for the freight charge for the carriage of goods, passengers and baggage have been updated; the expenses incurred in connection with this are reimbursed by the transport organizationat the expense of the corresponding budget. ”Of course, a typo in the text: instead of“ organization ”there should be“ organization ”. Otherwise, it would have turned out that the carrier is not only obliged to take less from the beneficiaries, but also to reimburse the costs to the unknown. In practice, “you cannot have mercy on execution” ... The
Land Code is not lucky for constructions of the type “oil oil”. In article 5, with definitions of the concepts used in it, the first is: " landowners - persons who are owners of land ". Yes, specifically. And try to argue ...
And in the law on the introduction of the Land Code into effect ( clause 12 of article 3) After his admission contained this design: "Provision of land users before the introduction of the Land Code of the Russian Federation the right of permanent (perpetual) use of land inconsistent with the Land Code of the Russian Federation the right of permanent (perpetual) use of land." And then, "oil oil". True, later on this passage was amended: the first passage of “permanent (perpetual)” was replaced ... you will never guess which one. On " unlimited (permanent) ." Well, in this case, the parliamentarians at least tried to fix something - but the rest of the inaccuracies mentioned above exist to this day.
tax code
The tax code is perhaps the record holder for errors, which is not surprising, given how many changes were made to it, especially in the second part. So we will devote to him a separate section of this article.
For example, in the second part of the code, articles 218-221 referred to "determining the size of the tax base in accordance with paragraph 2 of Article 210 of this Code ." In fact, the rules for determining the tax base are established by the third part of Article 210 . The error lasted safely for almost seven years , and was corrected only in July 2007.
Another mistake was corrected: the last paragraph of article 40 contained a link to the chapter “Income tax ( income) organizations ”, which is actually called the“ Corporate Profit Tax ”. Changes were made only last year, the error, therefore, lasted more than ten years . It seems that this is a record ...
And in 1999, Article 135.1 was added to the Tax Code , which established the responsibility of banks for failure to provide information about their customers to the tax authorities. The first part provided for a fine of ten thousand, and the second - twenty thousand rubles. The trouble is that the text of both parts was absolutely identical , that is, they spoke of the same offense. It happens. The bug was fixed in 2006.
Against the backdrop of such an enchanting “blunder,” the confusion with copyright terminology in Articles 208 and 221 seems just a trifle, although there are no trifles in the texts of legislative acts. Clause 3 of Article 208 speaks of "income from the use of copyright or other related rights outside the Russian Federation ." The word “other” is clearly superfluous here: copyrights are not a kind of related rights. Moreover, an inaccuracy was introduced during the introduction of changes, and in the previous edition it was said about “rights to intellectual property”, and why it was necessary to fix it is completely incomprehensible.
In paragraph 3 of Article 221For some reason, “discoveries”, which were never protected by copyright or patent law, are among the “intellectual property” for which the taxpayer is to receive remuneration. Moreover, “inventions and industrial designs” are mentioned in the text, but there is not a word about utility models that are also protected by patent law.
Everything else
Similar inaccuracies were contained in the previous law “On Enforcement Proceedings” (a new law with the same name is now in force). His sixty-sixth article , talking about the amount of withholding from the debtor's income, also speaks of some kind of " right to open". It also does not say anything about utility models, in addition, the authors of the article believe that some kind of" evidence "is issued for the industrial design - it seems that they confused it with the Soviet era (in favor of this option it also says that the text mentions “ rationalization proposals.”)
Another “oil of butter” is contained in the law “On the right of citizens of the Russian Federation to freedom of movement, choice of place of residence and residence within the Russian Federation.” The first sentence of his second article reads: “For the purposes of this By law, the place of stay and residence means the place of stay and place of residence . ”
But the inaccuracy in one of the articles of the law “On the protection of the rights of legal entities and individual entrepreneurs in the implementation of state control (supervision) and municipal control” is not so harmless. Article 9, paragraph 12 reads: “A legal entity, an individual entrepreneur shall be notified of a scheduled audit by a state control (supervision) body, or by a municipal control body no later than within three business days before it begins ...” Actually, usually in such In cases used the expression "no later than ... days", and if we literally read the text, it turns out that the notification can be sent in any of these "three working days" - that is, for example, send today, and go tomorrow with checking ...
Some inaccuracies may be interpreted the other way round, not in favor of the state. For example, the law “On Advertising” ( paragraph 10 of Article 19 ) says: “In the event of an unauthorized installation of the advertising structure again, it must be dismantled on the basis of the instructions of the local government of the municipal district or the local government of the city district in whose territories the advertising structure is installed.” The question is: if the construction is not installed “ again ”, but for the first time, can the local government issue an order for dismantling, or does it not have the right to do so? And how then to make the structure installed " again " - to illegally demolish it?
Another source of errors is the substitution of the meaning of concepts for “everyday” instead of what is contained in the law. We have already examined the example of a “ customs warehouse ”, which is not just “a barn like that ”, but a special customs regime of m. Well, the authors of the already inactive “Rules for the provision of postal services” in 2005 entered the following definition: ““ Representative representatives "- persons with a power of attorney drawn up in the prescribed manner." But "legal representatives" have always been called persons who represent someone by virtue of the law, as opposed to " representatives by proxy ." I.e,
Section 8 of the Law “On Valuation Activities in the Russian Federation” speaks of cases where the valuation of property is mandatory. Here's how it looks: "Conducting evaluation of the evaluation object is mandatory in the case of the involvement of the trade evaluation sites , belonging wholly or in part of the Russian Federation , Russian Federation subjects or municipalities, including: ... in the preparation of marriage contracts and the division of property of divorcing spouses on demand one of the parties or both parties in the event of a dispute about the value of this property. ” Who needs to be married to the dowry of the spouse belong to the Russian Federation, its subjects or municipalities, the law is silent.
There are cases when the absurdity of a normative act arises not because of an error, but because of too free treatment of the legislation. Often this was found in decrees signed by Yeltsin. For example, at the end of one of his decrees it says: “This Decree comes into force on February 1, 2005. ” And then - “Moscow, the Kremlin, February 16, 2005. ” That is, it was officially adopted retroactively, for two weeks before the actual signing ...
Even cooler came out with a decree“On some changes in taxation and in the relationships of budgets of various levels”, which, inter alia, states the following: “Establish that the Laws of the Russian Federation“ On Value Added Tax ”,“ On Excise Taxes ”,“ On Corporate Property Tax ” , “On the tax on profits of enterprises and organizations” and “On the fundamentals of the tax system in the Russian Federation” do not apply to the extent contrary to this Decree . ”Like that, no more and no less. It was adopted in 1993: the nineties, as we see, are not in vain known as an era of rampant crime. An example of a disregard for the law was given by the first person of the state ...
And sometimes it’s not at all clear that we have before us a mistake or such a sophisticated plan of the legislator. For example, article 10“On Civil Defense” establishes that citizens of the Russian Federation “undergo training in the field of civil defense”, “take part in other activities on civil defense”, and also “render assistance to state authorities and organizations in solving tasks in the field of civil defense”. This is called the article " Rights and Obligations of Citizens of the Russian Federation in the Field of Civil Defense". Naturally, the question arises: which of the following are rights, and which are responsibilities? The law, of course, does not contain an answer to this question ...
Rulemaking is generally a complicated thing ...
How to identify an error in the text of the law - what if the legislator wanted to write exactly that? The number of normative acts is huge, and in order to fully understand the meaning of a particular document, you need to consider it in the context of “nearby” complementary and concretizing acts. However, most often in the “normative” there are simple logical inconsistencies, cases mismatches, missing words, and the like. Sometimes these errors are eliminated, but most of the inaccuracies described in the article are contained in the current versions of normative acts.
Codes
Most go to the codes, the purpose of which is to collect the rules of law of a particular industry and state them in a systematic way. To the “ordinary” errors that occur during the writing of the text, systematization errors, for example, incorrect cross-references, are added.
For example, article 109 of the Customs Code refers to the requirements for a temporary storage warehouse. “Temporary storage" is a special customs regime, which is characterized by certain rules for handling imported goods. In particular, it should be stored in “temporary storage warehouses”. Such a warehouse is included in a special registry, for this it must meet certain requirements.
The third paragraph of the article refers to the civil liability risk insurance contract, which must be concluded by the owner of such a warehouse: “The insurance amount, within which the insurer undertakes to compensate for the occurrence of each insured event to persons whose property interests are caused, is calculated based on the usable area or useful volume and is determined by the rate of 3,500 rubles per square meter of usable area, if as a customs warehouse used outdoor playground , or at the rate of 1,000 rubles per cubic meter of useful volume if in a customs warehouse premises used , but can not be less than two million rubles. "
It would seem, is nothing strange if you do not know what" customs warehouse"- this is not just a phrase, but another special customs regime. In this regime, goods must be stored in a" customs warehouse ", which also has certain requirements. Among them, there is also a requirement to conclude a civil liability risk insurance contract. And if we compare the relevant paragraphs of Articles 109 and 227 , we’ll understand where this “customs warehouse" came from in that article, which should not be there.
Yes, yes: the text of these paragraphs is almost the same. In Article 227, however, there are no words “calculated on the basis of useful area or useful volume and "they added in Article 109. But the" bonded warehouse "obviously forgotten from her black out and replaced by" temporary storage ".
Well, think of a warehouse and warehouse. Apparently, they forgot that the “warehouse” is not just such a building, but a customs regime ... Here is such a legislative copy-paste. But in these cases, the meaning of a normative act can still be understood.
But the drafters of paragraph 1 of Article 110 of the Arbitration Procedure Code seem to have forgotten to include the most important passage in it. This article speaks of the distribution of legal expenses between the participants in the case, and its first paragraph reads: “The legal costs incurred by the persons participating in the case, in whose favor the judicial act was adopted, shall be recovered by the arbitration court from the side .” It is not clear from which of the parties they are recovered. . According to general rules - with a loser, but this general rule, as we see, is not reflected in the text of the law.
Returning to the “warehouses”, we recall also article 908 of the Civil Code . Its first paragraph reads: “ A warehouse is recognized as a general warehouse if it follows from the law and other legal acts that it is obliged to accept goods for storage from any goods owner.” Who is this " she " is not reported, and the comma after the "law" does not look appropriate: in theory, there should be an "or" ...
This is one of those rare cases when an error is not fixed when a change is made, but is made: after the “legal acts”, the original version also contained the words “ or permission (license) issued by this commercial organization ”.
After the adoption of the law "A lot of other normative acts had to be brought into compliance with the licensing of certain types of activities . The authors of the law , which were amended, simply went through the texts, cutting out the words about licensing from everywhere . Some phrases after that lose their meaning, they seem to they didn’t think ... The
Civil Code , in general, is lucky for such mistakes: for example, an incorrect ending in Article 790 altogether changes the meaning of what is written to the opposite: “In cases where, in accordance with the law or other legal acts, the mouth the privileges or advantages for the freight charge for the carriage of goods, passengers and baggage have been updated; the expenses incurred in connection with this are reimbursed by the transport organizationat the expense of the corresponding budget. ”Of course, a typo in the text: instead of“ organization ”there should be“ organization ”. Otherwise, it would have turned out that the carrier is not only obliged to take less from the beneficiaries, but also to reimburse the costs to the unknown. In practice, “you cannot have mercy on execution” ... The
Land Code is not lucky for constructions of the type “oil oil”. In article 5, with definitions of the concepts used in it, the first is: " landowners - persons who are owners of land ". Yes, specifically. And try to argue ...
And in the law on the introduction of the Land Code into effect ( clause 12 of article 3) After his admission contained this design: "Provision of land users before the introduction of the Land Code of the Russian Federation the right of permanent (perpetual) use of land inconsistent with the Land Code of the Russian Federation the right of permanent (perpetual) use of land." And then, "oil oil". True, later on this passage was amended: the first passage of “permanent (perpetual)” was replaced ... you will never guess which one. On " unlimited (permanent) ." Well, in this case, the parliamentarians at least tried to fix something - but the rest of the inaccuracies mentioned above exist to this day.
tax code
The tax code is perhaps the record holder for errors, which is not surprising, given how many changes were made to it, especially in the second part. So we will devote to him a separate section of this article.
For example, in the second part of the code, articles 218-221 referred to "determining the size of the tax base in accordance with paragraph 2 of Article 210 of this Code ." In fact, the rules for determining the tax base are established by the third part of Article 210 . The error lasted safely for almost seven years , and was corrected only in July 2007.
Another mistake was corrected: the last paragraph of article 40 contained a link to the chapter “Income tax ( income) organizations ”, which is actually called the“ Corporate Profit Tax ”. Changes were made only last year, the error, therefore, lasted more than ten years . It seems that this is a record ...
And in 1999, Article 135.1 was added to the Tax Code , which established the responsibility of banks for failure to provide information about their customers to the tax authorities. The first part provided for a fine of ten thousand, and the second - twenty thousand rubles. The trouble is that the text of both parts was absolutely identical , that is, they spoke of the same offense. It happens. The bug was fixed in 2006.
Against the backdrop of such an enchanting “blunder,” the confusion with copyright terminology in Articles 208 and 221 seems just a trifle, although there are no trifles in the texts of legislative acts. Clause 3 of Article 208 speaks of "income from the use of copyright or other related rights outside the Russian Federation ." The word “other” is clearly superfluous here: copyrights are not a kind of related rights. Moreover, an inaccuracy was introduced during the introduction of changes, and in the previous edition it was said about “rights to intellectual property”, and why it was necessary to fix it is completely incomprehensible.
In paragraph 3 of Article 221For some reason, “discoveries”, which were never protected by copyright or patent law, are among the “intellectual property” for which the taxpayer is to receive remuneration. Moreover, “inventions and industrial designs” are mentioned in the text, but there is not a word about utility models that are also protected by patent law.
Everything else
Similar inaccuracies were contained in the previous law “On Enforcement Proceedings” (a new law with the same name is now in force). His sixty-sixth article , talking about the amount of withholding from the debtor's income, also speaks of some kind of " right to open". It also does not say anything about utility models, in addition, the authors of the article believe that some kind of" evidence "is issued for the industrial design - it seems that they confused it with the Soviet era (in favor of this option it also says that the text mentions “ rationalization proposals.”)
Another “oil of butter” is contained in the law “On the right of citizens of the Russian Federation to freedom of movement, choice of place of residence and residence within the Russian Federation.” The first sentence of his second article reads: “For the purposes of this By law, the place of stay and residence means the place of stay and place of residence . ”
But the inaccuracy in one of the articles of the law “On the protection of the rights of legal entities and individual entrepreneurs in the implementation of state control (supervision) and municipal control” is not so harmless. Article 9, paragraph 12 reads: “A legal entity, an individual entrepreneur shall be notified of a scheduled audit by a state control (supervision) body, or by a municipal control body no later than within three business days before it begins ...” Actually, usually in such In cases used the expression "no later than ... days", and if we literally read the text, it turns out that the notification can be sent in any of these "three working days" - that is, for example, send today, and go tomorrow with checking ...
Some inaccuracies may be interpreted the other way round, not in favor of the state. For example, the law “On Advertising” ( paragraph 10 of Article 19 ) says: “In the event of an unauthorized installation of the advertising structure again, it must be dismantled on the basis of the instructions of the local government of the municipal district or the local government of the city district in whose territories the advertising structure is installed.” The question is: if the construction is not installed “ again ”, but for the first time, can the local government issue an order for dismantling, or does it not have the right to do so? And how then to make the structure installed " again " - to illegally demolish it?
Another source of errors is the substitution of the meaning of concepts for “everyday” instead of what is contained in the law. We have already examined the example of a “ customs warehouse ”, which is not just “a barn like that ”, but a special customs regime of m. Well, the authors of the already inactive “Rules for the provision of postal services” in 2005 entered the following definition: ““ Representative representatives "- persons with a power of attorney drawn up in the prescribed manner." But "legal representatives" have always been called persons who represent someone by virtue of the law, as opposed to " representatives by proxy ." I.e,
Section 8 of the Law “On Valuation Activities in the Russian Federation” speaks of cases where the valuation of property is mandatory. Here's how it looks: "Conducting evaluation of the evaluation object is mandatory in the case of the involvement of the trade evaluation sites , belonging wholly or in part of the Russian Federation , Russian Federation subjects or municipalities, including: ... in the preparation of marriage contracts and the division of property of divorcing spouses on demand one of the parties or both parties in the event of a dispute about the value of this property. ” Who needs to be married to the dowry of the spouse belong to the Russian Federation, its subjects or municipalities, the law is silent.
There are cases when the absurdity of a normative act arises not because of an error, but because of too free treatment of the legislation. Often this was found in decrees signed by Yeltsin. For example, at the end of one of his decrees it says: “This Decree comes into force on February 1, 2005. ” And then - “Moscow, the Kremlin, February 16, 2005. ” That is, it was officially adopted retroactively, for two weeks before the actual signing ...
Even cooler came out with a decree“On some changes in taxation and in the relationships of budgets of various levels”, which, inter alia, states the following: “Establish that the Laws of the Russian Federation“ On Value Added Tax ”,“ On Excise Taxes ”,“ On Corporate Property Tax ” , “On the tax on profits of enterprises and organizations” and “On the fundamentals of the tax system in the Russian Federation” do not apply to the extent contrary to this Decree . ”Like that, no more and no less. It was adopted in 1993: the nineties, as we see, are not in vain known as an era of rampant crime. An example of a disregard for the law was given by the first person of the state ...
And sometimes it’s not at all clear that we have before us a mistake or such a sophisticated plan of the legislator. For example, article 10“On Civil Defense” establishes that citizens of the Russian Federation “undergo training in the field of civil defense”, “take part in other activities on civil defense”, and also “render assistance to state authorities and organizations in solving tasks in the field of civil defense”. This is called the article " Rights and Obligations of Citizens of the Russian Federation in the Field of Civil Defense". Naturally, the question arises: which of the following are rights, and which are responsibilities? The law, of course, does not contain an answer to this question ...
Rulemaking is generally a complicated thing ...