Legislative flaws: characteristic features and separation from other legal phenomena

• Main Author: Elena Leiba
• Format: Article
• Language: English
• Published: Yaroslav Mudryi National Law University 2016-12-01
• Series: Проблеми Законності
• Subjects: legislative flaws; rule-making; legislative technology; legal collision; legislation gap; legislative error
• Online Access: http://plaw.nlu.edu.ua/article/view/84792

The article is devoted to defining characteristic features of legislative flaws from the point of view of the needs of legal doctrine and law enforcement application, enabling to single out specified legal phenomenon among others. Legislative flaws are considered in the light of the rule-making features of regulation of criminal legal procedural relations. It is noted that the flaws of legislation are an official (albeit negative) result of law-making activity. It is emphasized that state power statement of a legislative flaw is an official formalized criterion of legislative error, but it cannot be considered its mandatory feature. It is proved that the only universal and mandatory signs of a legislative flaw, which make it possible to separate it from similar legal phenomena, are social harm of legislative flaw, and as one of its principal manifestations, reduction of the effectiveness of law enforcement activity and level of protection of rights, freedoms and legal interests of participants of legal relationships. Taking into account the defined attributes, definition of legislative flaw is proposed as the official result of legislative activity (or inactivity), which in the process of its implementation leads to socially harmful effects and the fact of its existence reduces the efficiency of law enforcement activity and the level of protection of rights, freedoms and legitimate interests of participants of legal relations.