Environmental payments regulations in the system of law
Table of contents: The Kazakh-American Free University Academic Journal №7 - 2015
Author: Gavrilova Yuliya , Kazakh - American Free University, Kazakhstan
problem of environmental payments regulation in the system of law deserves
close attention as a result of its complex legal nature and its scientific and
practical value caused by relations concerning charging for environmental
emissions and natural resources use. Complex character of the legal nature of
environmental payments as an ecological and legal category is defined by
interrelation of the stated relations with the tax, budgetary, and civil ones
that indicates the need of accurate and detailed consideration of the role and
place of environmental payments regulations in the system of law.
consideration of the aforesaid task is necessary to begin with the analysis of
the concept “the system of law”. Philosophical and legal literature interprets
the system of law as a complex of structurally ordered interconnected elements
forming a unity whereas the structure is a special way of internal
interrelation of elements in the system [1, p. 274]. From the point of view of
Kazakhstani law scholars A. Yerenov, N. Mukhitdinov, and L. Ilyashenko the
distinctive features of the system are as following:
it consists of a few or lots of elements;
the elements are united in the system according to their substantial features;
the elements of the system are definitely interacting components;
when interacting with the environment the system always acts as something
unified and qualitatively definite;
the system components are relatively independent [2, p. 71-72].
the first time the system of law was discussed at the first meeting of law
scholars in 1938. It was recognized that the subject of legal regulation, i.e.
the public relations regulated by the law, is of crucial importance among the
objective criteria defining the structure of the Soviet law and its subdivision
into separate branches [3, p. 5].
the discussion of 1956-1958 the subject was recognized as the main criterion
for differentiating regulations on branches, as the leading foundation of the
system of law. However, even then one of the criteria of the system was
considered the method of legal regulation, along with its subject [4, p. 68].
the “criteria for modern legal science subdivision into branches are the
subject and the method of legal regulation. In fact, it is just the
subject of legal regulation as no branch of legal science has its special
method. At such criterion the legal branches can be subdivided indefinitely.
The similar situation is observed at the lower levels of the hierarchy – law
institutes and regulations” [5, p. 13].
institute is usually defined as a set of interconnected law rules objectively
stood apart in one or several legal branches and regulating unified group of
public relations . Such relations are components of the subject of legal
regulation [7, p. 402]. The main point of legal institute can be correctly
defined only if to consider it as a set of law rules which, in its turn, is a
structural element of the following main subdivision – a law branch. The legal
institute, as well as a rule of law, has a number of its distinctive features.
Firstly, each legal institute provides independent regulatory impact on a
certain aspect of relations. Secondly, regulating a certain aspect of public
relations, the legal institute possesses the actual and legal uniformity.
Thirdly, according to A. Ibrayeva and N. Ibrayev the legal criterion for uniting
certain sets into a concrete legal institute is “a provision of
regulations forming a legal institute in chapters, sections, parts, and
other structural units of laws and other legal acts” [8, p. 83].
institutes are independent structural subdivisions of both the system of law
and all its relevant branches, thus strengthening the integrity of the system
the traditional structure of the system of law is a hierarchy with the
following levels (top-down): the system in general, its branches, institutes,
and rules of law. More detailed legal research differentiates also sub-branches
rule of law is a primary element of all the system of law and an example of
people’s behavior and activity. G. Sapargaliyev, a contemporary theorist of
constitutional law, is correct to consider the rule of law as a section of a
legal matter [9, p. 17]. “Besides, any state-organized society can’t do without
legal rules. It is a single phenomenon of law and therefore its complete scientific
definition assumes clarification of its inherent specific features (properties)
[10, p. 257]. The need for consideration of legal rules features is also
explained by a variety of social regulations such as moral norms or rules of
some separate (non-state) social communities.
Bulgakova mentions the following main features of legal rules:
Obligation: it represents the imperious instruction of the state concerning
people’s possible and due behavior;
Formal definiteness: it is expressed in official documents in writing;
Relation to the state: it is established by government bodies and provided by
measures of state influence;
Granting-binding character: it not only grants but also assigns legal subjects
duties as the law is impossible to exercise without a duty and the duty without
a law [11, p. 51].
S. Alekseyev specifies that “legal rules being variants of social norms are
characterized by features common to all social norms: they are rules of
people’s conduct in society; they are rules of conduct of general character;
they are result of conscious and strong-willed activity; and are caused by a
social and economic system…” [7, p. 334].
system of legal rules regulates relations concerning payments for environmental
emissions and use of some types of natural resources.
speaking about the structure of legal rules, it is necessary to emphasize the
disposition regulating the order of payments for environmental emissions and
use of natural resources, including stipulation of environmental payments in
law and definition of taxation object, payment rates, calculation and payment
procedures, tax period, and tax returns.
hypothesis as a component of a legal rule is expressed in determining the
payment payers – individual and legal entities responsible for environmental
emissions or using of some types of natural resources on the basis of special
sanction as the third structural part of rule of law plays an important role in
the implementation of its guarding function. The sanction determines
possibility of its compulsory implementation and legal consequences of
violations of legal requirements. Sanctions are directed to those who do not
obey law requirements. They perform a preventive function, thus to some extent
constraining law violations. In relation to the discussed structure of
environmental payments rules the sanctions are mentioned in the following acts
of public law – the Code of Administrative Offences and the Criminal Code.
having considered the structure of environmental payments rules, it is
necessary to emphasize that not exact interpretation of a hypothesis involves a
defective legal design of the rule not provided with due conceptual base. It
also should be mentioned that qualitative characteristics of legal rules and
their relevant application in many respects depend on a detailed and complete
determination of their structural components.
problem of correlation of law branch and legislation branch is very often
considered in legal literature. When considering the concept and structure of
the system of law it is important to consider the structure of legislation
branch also. The system of legislation can be considered in two aspects
presented in its vertical and horizontal structures. According to M. Baitin and
D. Petrov the structure of legislation is “an arrangement and correlation of
its elements including acts and regulations, i.e. forms (legal sources) of law.
If the vertical structure of the legislation reflects the hierarchy of
regulations depending on their validity, the horizontal one reflects a certain
arrangement (grouping) of these legal sources depending on spheres of public
relations, i.e. legislation branches” .
about legislation concerning the rules in question it is necessary to mention
the Environmental Code of the Republic of Kazakhstan (Article 101. Payment for
environmental emissions; Article 102. Obligatory payments to the budget for the
use of some types of natural resources), the Water Code of the Republic of
Kazakhstan (Article 133. Payment for the use of water resources), and the
Forestry Code of the Republic of Kazakhstan (Article 105. Payment for the use
of the state forest fund), etc. The rates, calculation and payment procedures
are determined according to the Tax Law of the Republic of Kazakhstan.
allows to draw a conclusion that a set of unified environmental regulations
(i.e. payments for environmental emissions and environmental use) covering such
branches as Environmental Law, Natural Resources Law, Tax Law, Budgetary Law,
etc. forms a legal institute of inter-branch complex character. Its
complexity is also of a secondary, derivative nature since environmental
payments, in their turn, are a variant of payments as a legal institute of Tax
Law. The given institute is authoritative and expresses public interests of the
state. In this case when establishing payments collection procedures the state
acts as the holder of sovereignty. The rights and duties of environmental payments
subjects are usually regulated by imperative rules.
subsurface use agreements, providing environmental payments are signed, the
relations are regulated according to private law. But in contractual
relations between subsoil users and the state the public law still prevails
over the private law. Moreover, theorists of environmental law emphasize the
advantages of such agreements and call them public-legal: … “Firstly, they are
organizational, i.e. possess the huge regulatory ability stimulating economic
activity in the branch in general. Secondly, through public agreements the
state realizes its regulatory power and opportunities which are not the subject
of civil agreements (change of a public order in taxation, licensing, tariffs,
quotas, etc. ,… assignment of natural resources of exclusively state ownership
for use)” [13, p. 44].
it is undoubted that in the course of further development and improvement of a
contractual form of relationship, the private-law principles will prevail, thus
proving the civil-legal not administrative-legal character of the agreements
(contracts) in the sphere of subsurface use” [4, p. 162]. It is reflected in
the qualitative characteristic of the institute of environmental payments which
is being dynamic by its legal nature comprises both the principles of public
and private laws.
about distinctive features of legal payments as institutional legal norms, it
is necessary to emphasize that “each legal institute has its own characteristic
features determined by the peculiarity of public relations regulated by it and
unites all legal rules relating to these relations” [4, p. 75-76]. The
institute of environmental payments is closely interconnected with other
institutes of environmental law, e.g. the institute of environmental emissions
payment is directly interconnected with the institutes of rate-setting and
licensing as according to Clause 2 Article 27 of the Environmental Code of the
Republic of Kazakhstan the standards of maximum permissible emissions and
dumping of polluting substances are used as guidelines for granting
environmental emissions permission.
example of interrelation of institutes of environmental emissions payment,
environmental and (or) people’s health indemnification, environmental
insurance. The latter institute is regulated by the Law of the Republic of
Kazakhstan as of December 13, 2005 “About obligatory environmental insurance”.
It defines the obligatory environmental insurance as a complex of relations
providing property protection of legitimate interests of natural and (or) legal
entities (the insured) at occurrence of civil responsibility according to
obligations arising owing to infliction of harm to life, health, property of
the third parties and (or) the environment as a result of its emergency
pollution. In this context the point of view of the Kazakhstani researcher G.
Tlebayeva sounds pertinent. She says, “the main task of environmental insurance
is accumulation and allocation of funds for nature protection through special
foundations or indemnification for environmental or population’s health damage
as a result of environmental deterioration or quality change. In Kazakhstan the
realization of environmental insurance is a necessary mechanism due to
high extent of emergency pollution of the environment, low capital investments
to nature protection sphere and costs of the prevention and elimination of
emergency situations consequences” [14, p. 19].
separate provisions of the Environmental Code of the Republic of Kazakhstan
indicate that the systematized character of this statutory act coordinates
environmental payments to other legal institutes which in total make mechanisms
of economic regulation of environmental protection and management.
also should be noticed that some institutes are characterized by the
subdivision into counterparts called “sub-institutes”. Sub-institutes are
organic formations of rather independent character formed within the
institutes, thus, indicating the “complication” of the structure of the
institute and relative isolation within its certain complex of rules. Such
formations within the institutes often represent the expanded associations of
instructions. The Kazakhstani scientist N. Baimbetov singles out the
sub-institute within the institute of “state mechanism for environmental
management” - the independent institute of “environmental assessment” [15, p.
53]. Such legal institutes consisting of sub-institutes can be called complex.
This quality is characteristic for the institute of public administration which
“focuses in itself a set of rather independent groups of legal rules –
concerning environmental insurance, auditing, and standardizing the quality of
environment, environmental assessment, and the state control in the sphere of
environmental protection” [16, p. 105]. The complex nature of institute is also
determined by the objective of the system of public administration. D.
Baydeldinov is right to consider “public administration as an executive and
administrative activity of government bodies aimed at providing an order in
interaction of the society with the environment and realization of
environmental duties of the state subjects” [17, p. 10].
relation to the examined group of legal institutes it is possible to apply
theoretical grounds subdividing the institute of environmental payments into
“general institutes and sub-institutes sometimes called complex and simple,
respectively. The general legal institute represents a set of sub-institutes …
The sub-institute (the simple institute) is an institute which is a part of a
larger institute. Unlike the general (complex) institute it does not include
any groups of regulations isolated from the given institute or having an
independent value. The sub-institute consists of rules regulating a uniform,
rather small in structure, group of public relations…” [4, p. 76]. In our case,
general institutes will act as a payment for environmental emissions and the
use of some types of natural resources. In its turn, the general institute of
environmental emissions payment will comprise the sub-institutes of the payment
for environmental emissions, dumping of polluting substances, the payment for
wastes disposal and consumption in the environment, and the payment for harmful
physical impacts. The sub-institutes of payments for the use of soil, subsoil,
plants and animals, etc. form a complex institute of payments for the use of
determining the role of the environmental payments institute in the system of
law, it is necessary to proceed from the purpose of these payments. In our
opinion, these payments have to stimulate decrease in negative impact on the
environment to the standard level which would guarantee a favorable environment
for people’s life and health. Besides, environmental payments are one of the
regulators of economic activity.
situation seems a serious deformation of a normal market mechanism when through
nature protection activity there is a decrease in profit of enterprises.
Besides, it promotes import of ecologically “dirty” technologies and
productions as the payment for environmental pollution in our country is much
lower than abroad. To stimulate nature protection under normal market relations
the size of payments (taxes) for environmental pollution, wastes disposal and
recycling at least has to reflect socially necessary costs of these actions
taking into account the standard profit. This will create favorable conditions
for extensive development of environmental business and stimulation of the
nature protection tasks solution. Besides, today it is impossible to increase
tax burden of the enterprises as it is high enough. In this regard the increase
in the size of environmental payments (taxes) at the same time has to be
followed by adequate decrease in other taxes which is to be reflected in the
Tax Law of the Republic of Kazakhstan.
M. Vassilyeva suggests to stimulate nature protection “by providing in the tax
and budgetary laws the possibilities for temporary tax privileges (in specific
cases of economic activity, e.g. at construction of treatment facilities for
housing-and-municipal sector, dumps processing, recycling of some types of
waste, re-cultivation of territories, etc.), mortgage cost on some types of
consumption waste (packing, car tires, accumulators, etc.), environmental
deposits (to guarantee financing of waste disposal grounds re-cultivation), and
creation of environmental foundations (to eliminate the saved-up environmental
damage of past years, to grant credits, and allocate the state orders for
environmental protection works” [18, p. 14-15].
it is possible to make a summary concerning the place of environmental payments
regulations in the system of law. The use of a systematic and structural
approach indicates that environmental payments regulations form a general
inter-branch, complex, and derivative institute consisting of sub-institutes of
payments for environmental emissions, polluting substances dumping, production
wastes disposal and consumption in the environment, and harmful physical
their own niche in the systems of legislation branch and law, the rules of
complex institute of environmental payments are closely interconnected with the
institutes of economic incentives for environmental protection, environmental
insurance, economic assessment of environmental damage, etc. All these
institutional formations are a direct consequence of transformations in natural
resources relations under the carried-out market reform. Thus, the correct
application of environmental payments regulations is possible only through the
interrelation with the legal standards in environmental insurance,
environmental protection and environmental management licensing, and economic
assessment of the environmental damage.
the transition of the Republic of Kazakhstan to market economy the role of
economic regulation in rational use and protection of natural resources gains
priority development which is to find its reflection at the legislative level.
Unfortunately, the legal institute of environmental payments is not fixed in
the legislation to the right degree. Today there is a need of adoption of a
separate act which would regulate questions of payments for negative
environmental impact in further detail. The environment in our country will
depend on further stipulation of the institute of environmental payments in the
separate act and its relevant provision.
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Table of contents: The Kazakh-American Free University Academic Journal №7 - 2015