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ORDER OF THE MINISTER OF JUSTICE OF THE REPUBLIC OF KAZAKHSTAN

of September 26, 2016 No. 800

About approval of Methodical recommendations about conducting legal (legal) examination of drafts of the laws

Being guided by the subitem 3) of Item 2 of article 7 of the Law of the Republic of Kazakhstan "About judicial authorities", and also according to Item 14 of the Actions plan for 2016 on implementation of the Concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020 approved by the order of the Government of December 31, 2015 No. 1151, I ORDER:

1. Approve the enclosed Methodical recommendations about conducting legal (legal) examination of drafts of the laws.

2. To the staff of Department of the legislation when conducting legal (legal) examination of drafts of the laws to be guided by the made Methodical recommendations.

3. This order becomes effective from the date of its signing.

Minister of Justice of the Republic of Kazakhstan

M. Beketayev

Methodical recommendations about conducting legal (legal) examination of drafts of legal acts

These Methodical recommendations determine procedure for conducting legal (legal) examination of drafts of legal acts by the Ministry of Justice, and also preparation of the conclusions by them

Section 1. General provisions

1. Methodical recommendations about conducting legal examination of drafts of legal acts are developed for use of the legislation of the Ministry of Justice by Department when conducting legal examination of drafts of legal acts (further - legal examination).

2. When conducting legal examination it is necessary to be guided by the following regulatory legal acts:

1) Constitution of the Republic of Kazakhstan;

2) Law "About Legal Acts";

3) Rules of the organization of bill work in authorized bodies of the Republic of Kazakhstan;

4) Regulations of the Government;

5) Other normative and substandard legal acts

When conducting legal examination it is also necessary to consider normative resolutions of the Constitutional Council and Supreme Court which use can help to formulate conclusion about discrepancy of the bill of the Constitution and to the current legislation.

3. Legal expertize is carried out within 10 working days from the date of receipt of the draft of the legal act (further - the bill) in the Ministry of Justice.

Section 2. Conducting legal examination

4. When conducting legal examination it is necessary:

- study condition of legal regulation in the respective sphere of legal relationship;

- perform legal treatment of the purposes and tasks of the bill, and also its form;

- check regarding compliance of the Constitution of the Republic of Kazakhstan and to the legislation of the Republic of Kazakhstan, including the legislation in the sphere of anti-corruption, compliance to international treaties and other international obligations, decisions of the international organizations;

- estimate bill compliance to requirements of legal method.

5.1. Studying of condition of legal regulation

When studying condition of legal regulation in the respective sphere the place of the considered bill among other regulatory legal acts in the specified sphere and their ratio comes to light.

Not all relations are subject to normative legal regulation in the form of the legal act. In case of determination of subject of the legal act it is necessary to consider the ratio of the laws and bylaws fixed in Item 3 of article 61 of the Constitution and the criteria characterizing the law as the act of high legal force. Treat such criteria:

- importance and stability of the regulated public relations. The law governs the most important, steady public relations;

- primacy of normative regulation of the relations constituting subject of branch of law or industry of the legislation.

For the purpose of studying of condition of legal regulation it is recommended to analyse not only legal acts, but also normative resolutions of the Constitutional Council and Supreme Court.

5.2. Assessment of the purposes and tasks of the bill, and also its form

The purposes and tasks of the bill need to be analysed regarding compliance to the fundamental principles of the right (humanity, equality of all before the law, democratism, legality, justice, harmony, proportionality, etc.), observance of basic rights and freedoms of man and citizen.

The purposes and tasks of the bill shall be aimed at the consecutive development and specification of the principles and provisions of the Constitution.

In case of assessment of the bill it is necessary to analyse carefully possible circle of the relations which will regulate the bill after its acceptance, and also to determine bill form.

All changes and additions shall be made to the legal act by adoption of the act of the same level. The law changes the law, the constitutional law - the constitutional law, etc. Modification of the legal act is not allowed by the act of other form or other legal force (even to higher). Changes can be made by the special law about introduction of amendments to the Constitution to the Constitution.

One changing act can contain changes of several existing acts. At the same time the following priority of changeable legal acts shall be observed:

- on hierarchy of legal acts (starting with the legal act having big legal force);

- on acceptance date (starting with earlier adopted legal act).

5.3. Check on compliance to Constitution regulations

According to Item 2 of article 4 of the Constitution it has the highest legal force and direct action in all territory of the Republic. Therefore the bill needs to be checked for compliance to Constitution regulations, first of all.

As practice shows, most often contradictions to those provisions of the Constitution which concern the rights and legitimate interests of citizens and legal entities occur in bills.

So, by preparation of bills concerning law and order and social security the regulations of Item 1 of article 1 of the Constitution that the Republic of Kazakhstan approves itself by the constitutional and social state which supreme values are the person, his life, the rights and freedoms are sometimes ignored.

Aiming to increase efficiency of measures for fight against crime, developers of projects quite often offer unreasonable restrictions of the rights of citizens from which, first of all, law-abiding citizens, but not criminals suffer. Some authors of projects, aiming to cut down as much as possible the public expenditures for social programs, forget about the above-stated regulation of the Constitution according to which the supreme values in our state are the person and his life and, therefore, the main task of the state - their providing, but not economy of budgetary funds.

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