64 https://doi .org/10 .30932/1992-3252-2019-17-3-56-70

Transport and Law: Historical Relationship THEORY and Prospects

Dukhno, Nickolay A., Russian University of Transport, Moscow, Russia*.

Nickolay A. DUKHNO

ABSTRACT When considering the current The article, dedicated to the 210 th state of transport law in Russia, anniversary of creation of a single various approaches to the Russian transport administration and composition and degree of autonomy transport education and based on of the transport law area, as well as historical information, analyzes the certain regulatory issues, are relationship between development of analyzed. transport and transport law in Russia. The general tasks of transport law The increasing need for legal in the sphere of regulation of the most regulation of more and more relevant fields of transport activity complicated and increasingly complex are determined, the possibility of transport relations comprises creating a single code of transport development of transport law as one of legislation and legal norms, the the key tasks in achieving the goals of importance of intensifying transport the transport industry. and legal research are substantiated.

Keywords: transport law, transport, transport relations, transport legislation, science of transport law, legal relations, transport safety, state law, .

*Information about the author: Dukhno, Nickolay A. – ​D.Sc. (Law), professor, director of Law Institute of Russian University of Transport, Moscow, Russia, [email protected].

Article received 14.03.2019, accepted 27.06.2019.

For the original Russian text please see р. 56.

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Dukhno, Nickolay A. Transport and Transport Law: Historical Relationship and Prospects Background. development of the engineering culture in Russia . The development of public relations confirms These particularly significant decisions led Russia the historical relationship of development of to breakthrough railway construction, resulted in transport and of legal regulation of transport the rise of industry and in strengthening of relations, traced from the earliest times . With international relations, which facilitated Russia’s formation of statehood as long ago as in Ancient rise to the heights of a new technical culture . A Rus’ (as Russia was called at the epoch), and then great contribution to the positive resolution of the with development of internal and external water discussion [see, for example, 2] on construction of and land routes in medieval Rus’, a need arose to railways was made by the works of P .P .Melnikov govern and regulate transportation . The first legal [3] . norms began to appear that governed the relations The start of operation of the first railways regarding those first modes of transport . Traces of required appropriate legal regulation of their legal regulation of transportation are visible in the activities, as well as improvement of the norms first written code of laws «Russkaya Pravda» [that related to the transportation process involving can be literally translated as Russian Truth] by several modes of transport . As a result, during the Yaroslav the Wise in 1016, where the legal norms reign of Nickolay I, the regulatory legal acts of civil and were interlinked [1] . The governing the transportation process were combination of the words «transport» and «law», substantially updated . In 1842, the content of the merged into one capacious category «transport Code of Laws of the Russian Empire was law», had come into use already before 20th century . supplemented by 820 articles regulating the 2019 is a jubilee year for the Russian transport procedure for water and land transportation in administration and transport education . 210 years Russia, while the terms associated with railway ago, in 1809, the corps of railway engineers and an communications were not highlighted due to institute under its auspices were established, laying insufficient legal practices . the foundation of modern transport education; By the middle of 19th century, the conditions legal regulation of transport administration was had matured for the reform of Russian transport strengthened; the Department of Water and Land law . In 1857, the Code of Laws of the Russian Communications, first single transport Empire incorporated Volume XII «Code of administration body in the history of Russia was Institutions and of Railways» [4] . This created, replacing the Department of Water historical stage is characterized as a process of new Communications and the Expedition for development of transport law, consisting of legal Construction in the State . norms of various sectoral lines, forming the This date gives a legitimate reason to analyze complexity of legislation . the genesis of transport law in Russia and assess Technical progress, reflected in rapid the current problems and tasks associated with its construction of railways, as well as in fundamental development . changes in the legal system of Russia, thanks to The objective of the work is to determine the adoption in 1864 of legal documents that modern problems of transport law, including its fundamentally changed the legal proceedings, problems as of a field of scientific research . putting them on the basis of an objective and fair The author used general scientific methods, resolution of cases, led to further improvement methods of formal legal, comparative legal and of public administration of the transport industry historical legal analysis . and to enhancement of transport law . In 1865, the Results. Ministry of Railways was created, endowed with Development of transport law in 19th century broad powers to build an extensive network of The decisions that laid the foundation for railways . The further development of railway creation of a single governing body in transport transport prompted preparation and adoption of field and of transport education were based on state new legislative acts, the need for which grew in and economic reasons, and were further developed progression, equal to the growth of the railway under the influence of technical achievements of network . In 1879, experts developed the foundations their time, primarily under the influence of a new of the first « of Railways», and on June 12, 65 type of traction, a newly born steam locomotive . 1885, Alexander III signed and put into effect the Together, technological progress and the new first «General Charter of Russian Railways», which system of transport education, founded by got the of law . The Charter became the legal Alexander I, gave a powerful impetus to basis for the activities of railway transport . This

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Dukhno, Nickolay A. Transport and Transport Law: Historical Relationship and Prospects legal document enshrined the rules governing connection with transport activity, increasing its 66 maintenance and operation of railways, the norms security, and efficiency for citizens and business governing management of railways, transportation manifests itself even more clearly . of and goods . The Charter of Railways Transport law continues to develop under the included: «Section on transportation of passengers influence of the need for further development of and goods by rail»; «Section on the rules on transport relations, dictated by the tasks of jurisdiction and limitation of railway claims and transport development, defined in the strategic on the procedure for execution of decisions on program documents of Russia, aimed at creating claims to the railways»; «Section of railway conditions conducive to economic growth, regulations» [5] . This legal document combined increasing competitiveness of the national the norms of different legal branches, becoming economy and improving quality of life of the thus the general regulatory instrument of transport population, creating affordable, safe and high- relations, confirming the vital necessity of existence quality transport services [8] . of transport law and of establishment of a unified Currently, transport law represents a large transport legal order . volume of various legal concepts, theoretical The strengthening of the legal foundations of provisions, legal ideas, legal principles, followed transport activities was initiated under the by a huge number of laws, and an even greater pressure of two factors . The first originated from number of various regulatory legal acts adopted the process of development of transport by authorities, supplemented by technologies, which went along the lines of numerous corporate legal documents . industrialization . The second factor was associated For a complete solution of the tasks set, the with the growing need to enhance and improve legal norms of , administrative the quality of transport services . The full law, , civil law, , implementation of both factors could not be , intertwined with departmental and carried out without the appropriate legal corporate legal norms, regulating transport regulation, without creation and development of relations, form transport law in its dialectical transport law . unity . Being in the core of administrative transport On modern approaches to transport law relations, state-administrative relations; A brief historical analysis of the process of administrative and procedural relations; control emergence and development of modern transport and supervision relations and other similar law in Russia is important to demonstrate that, relations are also regulated by transport law . firstly, transport law develops inseparably from But at the same time, the approach has not development of the transport industry, meets the yet been eliminated, when the narrow challenges it faces, and, secondly, is formed as an interpretation of the transport itself is put at the independent area of legal regulation, as evidenced forefront as exclusively a system for delivering by inclusion of a separate book in the Code of various goods to a given place in the required Laws of the Russian Empire . Without setting quantity and assortment on time, as well as timely ourselves the task of tracing in this article the delivery to destinations of passengers using further genesis of transport law in Russia, to which in compliance with transportation safety many studies are devoted and, I am sure, will be rules [9] . Accordingly, based on this approach, devoted in the future [eg, 2, 6, 7], we turn to the the array of transport law is reduced only to the analysis of the current situation in order to legal norms governing transportation . Thus, the understand its place in the modern legal system, prevailing opinion about transport as a means of and how it meets the needs of society and the transportation could not but affect a part of jurists state . who narrowed down transport law and limited its Today, transport is perceived not only as an regulatory function only to transportation industry capable of efficiently and safely processes . transporting goods and passengers, but as a At the same time, on the contrary, it is quite backbone industry contributing to balanced obvious that effective legal regulation of transport development of the state and society, solution of relations requires a comprehensive branch of law social and economic problems, and spatial that develops according to a separate methodology development of the country . In these conditions, and operates its own methods that ensure the need to improve the system of legal norms regulation of the totality of specific transport governing various relations emerging in relations, and not just transportation .

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Dukhno, Nickolay A. Transport and Transport Law: Historical Relationship and Prospects This is as true as the fact that certain The main source of transport law is associated branches of law separated by mode of with state laws . Other, subordinate regulatory legal transport, for example, regarding civil acts are called upon to regulate those relations aviation, rail or sea transport, in isolation from which are not covered by laws . Their mass others, are not able to regulate complex, character and lack of orderliness create difficulties heterogeneous transport relations, merged in implementation of legal norms in current into a single relationship, involving various activities . modes of transport, determining their On the other hand, a large amount of legislation interaction, legal relations . This is equivalent acts and other regulatory legal acts is not a reason to the fact that transport itself cannot exist if to believe that transport law does not need to be it is represented by separate, unrelated parts . developed . And proceeding from this, it is Certain branches of law cannot fully regulate necessary to consider first of all the interests of transport relations without being combined development of society, the state, citizens, taking into a single complex of transport law . into account the specific urgent tasks of We also note another aspect of complexity of development of the transport industry . transport law, which goes far beyond the regulation Modern tasks of development of Russian of specific aspects of the activity of modes of transport law transport . The strategic goals of development of the Transport law has arisen and is developing as a transport system of the Russian Federation are also regulator of those transport relations that need to determined by the tasks of improving transport law . be put in a certain order to meet the needs of a The task of forming a single transport space in person, society and the state . For our country, this Russia on the basis of a balanced, accelerated is ultimately the achievement of the constitutional development of transport infrastructure cannot be goal of developing Russia as a social state, the solved without legal regulation of relations in the activity of which should be aimed at creating sphere of management, financing and determining conditions that ensure decent life and free human the legal order guaranteeing the functioning of the development . Accordingly, under the influence of transport system . Legal regulation ensures the constitutional principles, the state and other functioning of a single system of transport entities have an obligation to promote the communications, contributes to creation of an development of transport law, focusing legal integrated system of technological transport regulations on ensuring safe conditions of transport infrastructure of all modes of transport . The law activities, satisfying the needs of citizens . governs application of common technological The problem of correlation and interconnection compatibility standards for various modes of of public and private interests in transport law has transport that optimize their interaction . Relations not yet been studied so deeply and widely that it in the field of creating a single information could be presented fully and objectively in a short environment for technological interaction of article [10] . But in the current transport legislation, various modes of transport are also regulated by the priority of public interest over private is transport law . noticeable . One reason is the need to address Without legal regulation of transport relations threats to sustainable and safe transport activities . it is impossible to ensure transport safety . For all measures are required to ensure modes of transport, traffic safety, flight safety, and transport safety . Public interests reflect the focus safety at sea are ensured by legal establishment of of transport law on the necessity to satisfy the needs an order that prevents threats and dangers that can of people, to contribute to protection of harm people, transport infrastructure, and vehicles . fundamental rights of citizens . Understanding of Engineering and organizational measures are public interests should increase as the legal culture structured and applied within the framework of in transport strengthens . transport law . In order for the transport system to One cannot fail to note the existence of a meet the requirements stated in the public program number of problems in the transport law of Russia . documents, we need clear, convenient legal There is an indefinite number of valid regulatory regulators that guarantee maintenance and safe 67 legal acts adopted as long ago as in Soviet times . functioning of the entire structure that forms the Their presence does not strengthen, but weakens transport complex . the legal framework intended to regulate transport Legal regulation needs to be improved in the relations . field of ensuring safety of transportation processes,

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Dukhno, Nickolay A. Transport and Transport Law: Historical Relationship and Prospects safety of vehicles movement, environmental safety business processes of deliveries and transit 68 and other types of safety in transport, in the field transportation . Qualified legal analysis is required of control and supervision . To this day, a large in the field of the management of the export market number of regulatory legal acts are in force in the of transport services, and of competitive situation transport control and supervision process that were in it . Improvement of regulatory measures and adopted back in the Soviet period . Under those development of qualified legal measures to improve conditions, transport control and supervision technical and technological indicators require activities suffer difficulties in solving the tasks organization of activities and planning of assigned to them . contractual cooperation within international Environmental safety requires special attention, transport corridors . which is ensured by comprehensive respect of the The current state of the infrastructure and legal standards governing reduction of the negative vehicles of various modes of transport necessitates technogenic impact of the transport system on the development of new legal standards regarding environment, which contributes to full and healthy allocation of financial resources in the amount life for people and ensures that transport facilities necessary to minimize depreciation and to replace comply with international environmental obsolete elements of the transport system with new standards . Through legal regulators, public technical means and technologies . The existing administration is enhancing the conditions for procedure for financing the transport industry is converting vehicles to environmentally friendly unsatisfactory in some aspects, which is confirmed fuels, increasing the degree of use of hybrid and by Rosstat [Federal Statistics Service] data electric engines of vehicles, materials and regarding the degree of depreciation of fixed assets technologies that eliminate harmful effects on the of the transport system of Russia as of 2018 . So, in environment . Legal measures may ensure rail transport the degree of depreciation of fixed environmentally sound management of waste from assets is 36,5 %, in air transport – ​41,8 % [11] . the transport complex . Improvement of legal measures is required that The legal impact on transport relations ensures increases responsibility for effectiveness of an increase in the quality of transport and logistics investments and prevents misuse of funds . services in the field of and freight The achieved level of informatization of transportation that both meet the development transport processes and plans for further needs of the Russian economy . The introduction digitalization of transport require legal regulation of modern transport technologies and guaranteed in the field of implementation and use of digital provision of transport services of social significance technologies, comprehensive and complete are associated with proper legal regulation . equipping with modern information technologies Transport law also manifests itself in of all structures providing high-quality transport development of a market for competitive transport services, ensuring timeliness, completeness, services . Legal regulators ensure fair competition in reliability of data transmission and processing, which conditions are created for growing quality forming the basis of transportation process’s of the offered transport services . development and of transport safety . The territorial features of Russia, taking into An important aspect is introduction and account the geographical location and its developed development of legal culture . Transport law forms transport system, contribute to implementation of the vision of managers and specialists of the entire transit potential, which requires development of transport complex . Such a vision contributes to legal regulation for solving such problems as solving the problems of improving quality of Russia’s integration into the global transport system, transport services for the population, of satisfying expanding access of Russian transport service their legitimate interests and of implementing providers to foreign markets, and developing export established social standards . The process of solving of Russian transport services . A huge role is played problems is based on the norms of transport law, by transport law in development and functioning but it does not exist by itself, its implementation of international transport corridors . The success should not be carried out formally, but be rooted of technical and technological integration of the in the minds of transport employees, who develop transport and logistics infrastructure of Russia in the relationships within which the tasks are the global transport system depends on the level of realized . On the contrary, a weak level of legal legal order, which is able to guarantee the solution culture does not allow a large number of transport of the tasks of cargo transportation, can coordinate employees to understand that implementation of

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Dukhno, Nickolay A. Transport and Transport Law: Historical Relationship and Prospects legal norms requires legal knowledge . Legal regulation is lost . Unfortunately, in many such knowledge constitutes the basis for understanding cases, the legal regulation is replaced by the of the requirements of law and conviction is formed instructions of the chief, which are not taken on a in favour of legal, legally justified and verified legal basis, but on the basis of subjective assessment decisions . of the circumstances that take shape in transport . It is difficult to overestimate the contribution And this is one of the causes of accidents and other of transport law to solving problems that promote transport incidents . mobility of the population and accessibility of Conclusions and proposals. In the course of transport services . Among the main tasks set for the discussions, including those held at scientific transport industry are satisfaction of the rights and forums, Law Institute of Russian University of legitimate need of people in transportation, in Transport presented substantiated proposals on establishing and observing social norms and development and creation of a code of transport standards, creating an accessible transport legislation and regulatory legal acts, which will environment for people with disabilities, and contribute to systematization of legal norms and ensuring transport accessibility of settlements . to development of an internal regulatory legal The growing dynamics of the need for legal system of the transport complex . This will create regulation of transport relations stimulates the a complete systematic collection of existing strengthening of scientific research in the field of regulatory legal acts regulating transport relations . transport law . Deep theoretical developments are The draft of such a code needs to be developed required to develop and justify changes and on a scientific basis and put up for wide discussion amendments to the existing transport legislation, at workshops, round tables with participation of to prepare draft new laws, particularly in the fields legal scholars and practitioners of transport . The where changes in transport relations are most creation of the code should be based on principles clearly manifested, but sufficient legal regulators of systematization of legislation and on other are missing . regulatory legal acts . To ensure completeness and In other words, in order to achieve high-quality reliability of collection of regulatory legal acts legal regulation in a wide range of transport related to the transport complex, they should be relations, it is necessary to further develop the inventoried, and a thorough scientific analysis science of transport law . Only on the basis of should be carried out to identify contradictions science it does become possible to objectively and and other shortcomings in them, identifying thus fully evaluate the current transport legislation . The grounds for making proposals on amendments science of transport law is the basis for development and additions . This is a big and painstaking work, of new laws and other regulatory legal acts . And but it is necessary, because subsequent adoption this process is closely related to organization of of new regulatory legal acts will further aggravate training in transport law . Only on the basis of shortcomings of transport legislation . In the scientific research it is possible to fully develop new process of evaluating existing normative legal acts, educational programs, new training courses, it is important to pay attention to their necessary for legal training of transport employees . constitutionality, to their compliance with the The educational process in the field of the study of requirements of Part 2, Article 55, of the transport law will be weakened in the absence of of Russia, which clearly defines that close interaction with scientific research . laws should not be enacted in the Russian On the contrary, in the absence of a sufficient Federation that abrogate or derogate rights and number of scientific studies, the conduct of which freedoms of a person and a citizen . Systematization is mainly based on the enthusiasm of those jurists of transport legislation will free it from excesses, for whom the involvement in transport law research unnecessary piling up, eliminate many is the result of a deliberate voluntary choice, but shortcomings and transform it into a more not of a targeted request of the transport sector, the efficient system, convenient for use and practical development of new regulations often goes without application [12] . proper scientific support, by persons who do not In general, the science of transport law should have professional competencies in the field of be oriented towards development of new concepts 69 transport law . As a result, in the absence of expressing relationship between different branches fundamental legal knowledge of the employees of law, combining them into a single complex responsible for the process, and branch of transport law, which should be a full- with flaws in normative legal acts, the value of legal fledged regulator of transport relations . Here it is

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Dukhno, Nickolay A. Transport and Transport Law: Historical Relationship and Prospects 70

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Dukhno, Nickolay A. Transport and Transport Law: Historical Relationship and Prospects