Implementation of reference norms of law: theoretical and practical aspects

Khovantsev Alexey Sergeevich Lawyer; Bar Association 'Status' of the Penza Region Bar Association 440000, Russia, Penza region, Penza, Moskovskaya str., 18 aftoboto@mail.ru Other publications by this author

Introduction. The implementation of law and its individual components has always been of interest to representatives of legal science, since law regulates a variety of social relations, encouraging subjects to behave in accordance with the requirements of the law. There are diverse views on the concept of "realization of law", the analysis of which led to the conclusion that the realization of law is related to the legitimate activities of people and legal entities. However, you should not limit yourself to this aspect only. For the realization of the right, the result is important, "in which full compliance must be achieved between the requirements of the norms and the relevant actions of the subjects of law" ^{[1, pp. 34-35]}. Therefore, the realization of the right can be perceived as a process and result of the implementation of legal regulations through the exercise of rights and obligations by various participants in public life.

In legal science, reference norms are not considered as an autonomous type of legal prescriptions. As a rule, reference norms are studied in the context of the ways in which the norms of law are presented in normative legal acts. Thus, A.V. Demin and F.G. Kiparisov were interested in the problems of the reference method of forming legal norms ^{[2, 3]}. There are no monographic studies of reference prescriptions in the legal doctrine. Only some specialists of the branch of legal sciences have made attempts to study them. In particular, the criminal law aspects of the reference norms were revealed in the works of N.S. Borovikov ^[4].

The obvious inattention to the reference norms of law has a negative effect on the theory of legal norms, since it prevents the knowledge of the variety of legal prescriptions and the definition of their role in the mechanism of legal regulation.

The situation is complicated by the understanding of reference norms not as an independent kind of legal rules, but as a type of disposition ^{[5, p. 181]}. At the same time, reference norms are an independent type of legal rules. The allocation of the reference norms of law proceeds from the classical understanding of the ways of correlation between the rule of law and the article of the normative act. This approach is not new in the theory of law. In particular, in 2021, at the dissertation level, F.G. Kiparisov successfully attempted to prove the existence of blank legal norms as a relatively independent type of legal norms, distinguished by the blank method of presenting normative material ^[6]. In this regard, let us put forward a hypothesis about the analogy with the presence of blank norms in law, which also correspond to the blank method of presentation, and reference norms, which are embodied in a legal act by means of a reference method.

Currently, there is no consensus on the understanding of the reference norm. Some researchers reveal the reference norm as a norm that in its disposition contains a reference to another article of the same normative legal act, others – as a legal norm that does not contain a specific rule of conduct, but refers to the rule of another article of this or another normative legal act. In our opinion, the reference norm should be understood as an independent, generally binding, formally defined rule of conduct established by the state and enforced by the force of state coercion, which has a concretizing and communicative character, aimed at forming intra- and inter-sectoral relations of legal prescriptions, organizing interaction between legal acts adopted on the basis of normative legal acts and normative agreements.

There are a significant number of reference norms in the current legislation. This token is also actively used in the implementation process, which is of the greatest interest.

In the study of the implementation of reference norms, dialectical, logical, comparative legal and formal legal methods of cognition were used. The method of dialectics contributed to the knowledge of the essence of the reference norm as an autonomous type of legal norms. The dialectical method explains the possibilities of a reference norm to combine a technical and substantive orientation, on the one hand, affecting the external documentary form of a normative act, and, on the other hand, influencing the content of legal institutions, respectively. The logical method was used to understand the forms of practical implementation of reference norms. The comparative legal method has found its application in distinguishing reference norms from related legal prescriptions. The formal legal method was used in defining the reference norm.

Discussion. The implementation of reference norms consists in influencing the will and consciousness of participants in legal relations in order to encourage them to behave in accordance with the reference prescriptions and achieve certain results in which the law-making entity is interested.

Despite the fact that in the legal doctrine there are diverse approaches to the classification of forms of implementation ^[7], four forms of implementation of law are generally recognized: compliance, enforcement, use and application. Reference norms, of course, receive their direct embodiment and effect in all four classical forms of law.

Compliance is a passive form of behavior in which legal entities adhere to legal prohibitions, refraining from illegal actions or omissions ^{[8, p. 7]}. According to G.N. Utkin, compliance is "the most unconditional model of behavior, which is associated with a high degree of significance or danger of violation of prohibitions established by the state in normative legal acts" ^{[9, p. 78]}. Compliance with the reference norms of law is the most accessible and understandable form of implementation. The role of reference norms in observing the law is to establish and not violate certain rules of conduct. Law enforcement officers also pay attention to this circumstance. Thus, in the decision of the Eighth Arbitration Court of Appeal dated November 25, 2011 No. 08AP-8526/11 in case No. A46-9631/2011, it is indicated that Part 2 of Article 199 of the APC of the Russian Federation, being a reference norm, contains a requirement to comply with all the requirements of Article 126 of the APC of the Russian Federation.

Execution as a form of realization of the right ensures the implementation of binding legal norms ^{[10, p. 9]}. The specifics of the execution of reference norms imply the active activity of subjects not only to fulfill the duties assigned to them by reference prescriptions, but also to fulfill the obligations they have assumed. In other words, this form of implementation is based not only on the obligation as a measure of proper behavior towards the state and its bodies, but also on the fulfillment of obligations, i.e. voluntarily assumed debt to other participants in social relations. In particular, the Arbitration Court of the Ural District in its decision No. F09-2712/24 dated June 11, 2-024 in case No. A60-53862/2023 indicated that "by virtue of the reference norm contained in paragraph 1 of Article 308.3 of the Civil Code of the Russian Federation (paragraph 1 of Article 33 of the Civil Code of the Russian Federation), a court penalty also constitutes a measure responsibility for non-fulfillment of a court decision and, in this sense, is also inseparable from the subject matter awarded in court for compulsory fulfillment of an obligation." The main differences between duties and obligations are, firstly, that obligations may arise not only and not so much to the state as to other persons, and, secondly, responsibility for non-fulfillment of obligations is much less than for non-fulfillment of obligations.

The use implies the ability of subjects to exercise their rights and freedoms at their discretion within the framework defined by law, without violating the rights and legitimate interests of other participants in public relations ^{[11, p. 6]}. The use of reference norms is aimed at the implementation of dispositive rules allowed by the state, but presented in certain sizes and limits. At the same time, the use of reference rules depends on the discretion of the copyright holder. In particular, in Ruling No. 2410-O dated October 29, 2020, the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation) indicated that "The Federal Law On Electronic Signature provides that a simple electronic signature is an electronic signature that, through the use of codes, passwords or other means, confirms the formation of an electronic signature with a certain by a person (part 2 of Article 5). This norm, in conjunction with the referential part 2 of Article 6 of the said Federal Law, is an element of the mechanism that ensures the use of electronic signatures in civil transactions, the provision of state and municipal services, and the performance of state and municipal functions."

Finally, the last form of realization of the right – application – is the most unique, the specific features and features of which have led to many views on its concept. The application of law is an authoritative organizing activity of competent authorities and persons, aimed at assisting the addressees of legal norms in the realization of their rights and obligations ^{[12, p. 51]}. In the process of applying the reference norms, public authorities or officials establish the actual circumstances of the case, qualify them in accordance with the reference norms and other legal provisions and make an objective decision.

However, law enforcement agencies do not always apply the reference rules correctly. This, first of all, is expressed in a misunderstanding of the reference norms. Thus, in the definition dated February 27, 2024, No. 312-O of the Constitutional Court of the Russian Federation stated that "the right of an employee as an insured person to temporary disability benefits is also provided for in Article 183 of the Labor Code of the Russian Federation, which, without setting the amount of this benefit and the conditions for its payment, is a reference norm." However, a careful analysis of Article 183 of the Labor Code of the Russian Federation allows us to refute the court's conclusion about the referential nature of this provision. The formulations "in accordance with federal laws", "established by federal laws", fixed in the above-mentioned prescription are not peculiar to reference norms. For the latter, a mandatory characteristic feature is the redirection to a specific structural unit of a regulatory legal act or a regulatory agreement, which may be a part (paragraph), paragraph (article). Therefore, redirecting a certain article (paragraph) to a specific section or chapter of a regulatory legal act or a regulatory agreement cannot be a sign of a reference norm. Although such cases are known in legal practice. In particular, in the ruling of July 20, 2023, No. 1932, the Constitutional Court of the Russian Federation established that "the contested provision of part 1 of Article 227 of the CAS of the Russian Federation, containing a reference rule that the court's decision in an administrative case challenging the decision, action (inaction) of an authority, organization, person endowed with state or other public powers They are applied according to the rules established by Chapter 15 of this Code, provides regulatory certainty of the procedural procedure for making decisions by the court in cases of this category." At the same time, this reference is not to a specific article or its structural part, but to the chapter of a normative legal act does not indicate the existence of a reference norm. The uncertainty of a specific prescription contained in a particular form of law is a characteristic feature of the blank rule.

In addition to the indicated problem, in practice there are situations when courts confuse reference orders with other norms. For example, in the definition of the Volgograd Regional Court dated January 25, 2019 No. 3a-15/2019, the law enforcement officer established that "the specified norm of the Land Code of the Russian Federation in its structure and content is a reference (declarative) norm of law," thereby perceiving reference and declarative norms as synonymous concepts.

At the same time, these are completely different phenomena, although they are united by their normative nature, which is not recognized by all researchers. Despite the fact that few works have been devoted to the general theoretical study of declarative norms, in general they can be represented as "norms-statements reflecting the prevailing legal ideals in society and the state, approved actions, orientations, the existing system of legal values built in the appropriate hierarchy" ^{[13, p. 137]}. They consolidate the basic foundations of legal reality, determine the foundations of the existence of the social system, moral, political and ideological principles of legislation, etc. ^{[14, p. 16]}

Unlike reference prescriptions, declarative norms are maximally generalized, they do not fix specific rules of behavior, do not have a direct impact on the actions (inaction) of subjects. Therefore, declarative norms may not always generate specific legal relations. They are not provided with the force of state coercion in case of non-compliance and violation. In this regard, declarative norms are considered in the legal literature as one of the types of specialized provisions aimed at establishing additional systemically preserved links between normative prescriptions ^{[15, p. 34]}. That is, according to the exact remark of A.V. Baranov, they perform special functions that "do not directly coincide with the granting of rights, nor with the establishment of duties, nor with the consolidation of legal prohibitions" ^{[14, p. 15]}. Their functional purpose is to integrate universally valid values of a moral, political, and ideological nature into a system of legal ideals. These circumstances allow us to come to the conclusion about the diversity of reference and declarative norms. In this regard, their confusion and perception as synonymous concepts seems to be erroneous.

But can a reference norm be declarative? An analysis of legal practice has shown that sometimes law enforcement officers consider a specific provision both as a reference and a declarative prescription. An example is the Decision of the Volgograd Regional Court of September 18, 2000 No. 3-209/2000. It seems that this situation causes a number of critical comments. Firstly, declarative norms refer to atypical provisions that have an abstract character, whereas reference rules refer to specific norms, often related to casual prescriptions. For this reason, the same norm cannot be a declarative and a reference provision. Secondly, declarative norms receive their meaningful development through the action of other prescriptions, including reference ones. And, therefore, not coinciding with each other, these types of legal provisions are in one systemic connection, which is a key property of the reference norms.

The systemic connection of reference norms with other prescriptions finds its direct embodiment in the course of resolving various disputes and incidents. Thus, in its definition dated October 24, 2019, No. 2850-O of the Constitutional Court of the Russian Federation indicated that paragraph 179 of the Basic Provisions of the Functioning of Retail Electric Energy Markets, approved by Decree of the Government of the Russian Federation dated May 4, 2012 No. 442, is a reference norm applied in systemic connection with paragraph 10 of subparagraph 166 of the Basic Provisions. It is the systemic connection of reference norms with other legal prescriptions that reflects the specifics of the relationship between them. At the same time, in certain cases, law enforcement officers are required to apply the reference norms in conjunction with other legal provisions. In particular, in the Review of the practice of the Constitutional Court of the Russian Federation in the field of intellectual property rights protection for the period from 1992 to 2023, it was determined that sub-paragraph 1 of paragraph 2 of Article 1512 of the Civil Code of the Russian Federation, which is by its nature a reference norm, is applied only in systemic connection with the grounds fixed in Article 1512 of the Civil Code of the Russian Federation for refusal of state registration of a trademark the sign and, as aimed at implementing the imperative constitutional requirement to comply with the Constitution and laws.

The organic interrelation of reference norms with other legal prescriptions allows, on the one hand, to ensure the achievement of the required effectiveness of legal provisions, and, on the other, to exclude their inconsistency. Thus, in its decision No. AKPI12-491 of the Supreme Court of the Russian Federation dated June 13, 2012, it established that "the inclusion of reference norms in the contested normative legal act ... is one of the ways of legal regulation and does not indicate the illegality of these norms."

The main task of any rule of law, including reference, is to ensure the rights and freedoms of participants in public relations and to prevent their violation. Apparently for this reason, quite often in court decisions there is a mention that a specific instruction, being a reference norm, cannot be considered as violating any rights of citizens (Ruling of the Constitutional Court of the Russian Federation dated March 20, 2014 No. 593-O; Decision of the Supreme Court of the Russian Federation dated September 8, 2021 No. AKPI21-470). Therefore, the existence of a reference norm in itself cannot be regarded as a contradiction to the law, although in law enforcement there are cases when applicants try to refer to the inconsistency of reference norms. In such situations, the courts adhere to the unequivocal position that the contested reference norm does not contradict the current legislation and does not violate the rights, freedoms and legitimate interests of the applicants (Decision of the Supreme Court of the Russian Federation dated February 20, 2013 No. AKPI12-1630).

Conclusions. Summarizing what has been said, the following conclusions can be drawn.

Firstly, the implementation of reference norms is reflected in four classical forms: compliance, execution, use and application.

Secondly, reference norms are often incorrectly applied in law enforcement activities. This can be expressed in the naming of blank prescriptions by the latter or mixing reference norms with declarative ones. Meanwhile, reference and declarative provisions have a number of differences.

Thirdly, in the process of application, the systemic connection of reference norms with other prescriptions finds its direct embodiment, reflecting the specifics of the relationship between them. The organic interrelation of reference norms with other legal prescriptions allows, on the one hand, to ensure the achievement of the required effectiveness of legal provisions, and, on the other, to exclude their inconsistency.