The Prosecutor's Requirement to Change the Regulatory Legal Act: Existing Practice and Application Prospects

Abstract

The requirement of the prosecutor to change the regulatory legal act (hereinafter referred to as the requirement) is a unique act different from other acts of the prosecutor’s response, as well as other forms that reflect the results of anti-corruption examination. However, the official statistics of the Prosecutor General’s Office of Russia do not reflect the number of requirements made, judicial practice in cases related to them is virtually absent. There is little interest in this issue in science. These circumstances determined the tasks of the article to identify the features of the requirement, as well as to assess the existing practice and prospects for its use. Based on an analysis of legislation and scientific positions, the author concludes that the requirement is a self-directed act of prosecutorial response, different from protest, presentation and caution. There is no clear contrast between the requirement and the types of conclusions that reflect the results of the anti-corruption examination. The requirement is inherently related to advisory opinions and differs significantly from mandatory conclusions based on the results of anti-corruption examination. After analyzing the materials of judicial practice and comparing the versions of the legislation on anti-corruption examination of different times, the author comes to the conclusion that initially, when the institution of anti-corruption examination was introduced, it was assumed that the requirement should be of a governmental and administrative nature and be binding on the legal entity, but this position was rejected by the courts. Currently, it is recognized that the requirement is mandatory for consideration by a body or official, but not for execution. The final answer to the question of the need to change the regulatory legal act is given only by the court in the process of challenging the prosecutor’s legality. In conclusion, attention is drawn to the change in the regulation of the issue under consideration in the acts of the Prosecutor General’s Office of Russia. It is concluded that there is a tendency to reduce the attention of the prosecutor’s office to conducting an anti-corruption examination. It is proposed to exclude the requirement from the system of current legal regulation.