51. Government regulation entrepreneurial activity: concept, types, grounds, limits.
State regulation of entrepreneurial activity is the management activity of the state represented by the relevant authorized bodies, aimed at streamlining economic relations in the field of entrepreneurship in order to protect the public and private interests of the participants in these relations.
The state, represented by the competent authorities, carries out economic function, which is expressed in the following areas: ensuring state and public needs, priorities in economic and social development; formation of the state budget; protection environment and use of natural resources; ensuring employment of the population; ensuring security and defense; implementation of freedom of entrepreneurship and competition, ensuring protection from monopolism; maintaining law and order externally economic activity entrepreneurs and foreign investment.
State regulation of business activities can be classified depending on the degree of influence of the state on certain social relations in various sectors of the national economy. Thus, S.S. Zankovsky proposes to distinguish the maximum, average and minimum level (regime) of state regulation of the economy. The maximum level involves the use of all or most of the means of government regulation. A minimum level of regulation exists for businesses involving creative activities.
Taking into account the scope of application of certain means of influence, we can distinguish state regulation at the federal level, at the level of the constituent entities of the Federation, at the level of the autonomous region and autonomous okrugs. These and other types of government regulation are reflected in federal laws and other legal acts.
State regulation of business activities does not undermine the basic principles of civil legislation (Article 1 of the Civil Code). The principle of the inadmissibility of arbitrary interference in private affairs means that the legislator generally allows state intervention in the economy. Permissible (involuntary) interference is based on the law - state regulation of business activities. Arbitrary interference is illegal. In a word, interference is different from interference.
By virtue of Part 1 of Art. 34 of the Constitution of the Russian Federation, any citizen has the right to engage in economic activities not prohibited by law. Therefore, any economic activity (including business) presupposes legal grounds. You cannot engage in those types of business that are expressly prohibited by law. State regulation of entrepreneurship is limited by law.
The situation is more complicated with the limits of government intervention in regulating business activities. Representatives of constitutional law believe that these limits must comply with the principle of proportionality and balance. However, this principle (as well as others) is not formulated in the Constitution of the Russian Federation, although, according to G. A. Gadzhiev, the principle of proportionality and balance follows from the analysis of individual constitutional provisions. A very interesting position: the constitutional principle is not explicitly expressed, but implied.
Guided by this principle, authorities cannot impose obligations on citizens and legal entities that exceed the established limits of necessity arising from public interest in order to achieve the goal pursued by this measure. Otherwise, government intervention in the sphere of entrepreneurship will be excessive. It remains to develop criteria in this regard and create judicial practice, including the legal positions of the Constitutional Court of the Russian Federation,
In this regard, we can highlight the main directions of state legal regulation of the economy in general and business activity in particular.
This is for example:
antimonopoly regulation of business activities;
the use of forms and methods of state planning and regulation (norms, standards, quotas, a system of state, regional and municipal orders);
state regulation of the Russian national market;
state control over business activities;
state regulation of international economic relations.
The place and role of the state in the economy of each country is determined by the effectiveness of the measures and means of state regulation used, with the help of which various socio-economic and other problems are solved. IN modern conditions There is an increase in government influence on economic processes, organizational forms of interaction between government bodies and business entities are changing, significant shifts are occurring in the goals, mechanism, management apparatus, and in the combination of state and market regulation mechanisms. This is a general trend in most advanced economies.
As already noted in the literature, economic regulation is carried out by systems that (according to institutional typological characteristics) are divided into commodity-money and hierarchical mechanisms. The first (commodity-money) mechanism affects the level and structure of production mainly through the market; when using the second, various forms, methods and means of state and legal influence on the economy are used. In the real economy, these mechanisms interact with each other and complement each other.
At the same time, the degree of correlation between commodity-money and hierarchical mechanisms varies in different countries. In those countries that predominantly use an administrative-command model of economic regulation, the actions of the commodity-money mechanism are significantly limited. Conversely, in industrialized countries market mechanisms for self-regulation of the economy are widely used. It is hardly appropriate here to talk about any quantitative relationship between commodity-money and hierarchical mechanisms. The share of state participation in regulating the economy is determined by the state itself, represented by its competent authorities, and the specific needs of society. This can be clearly demonstrated in the processes of privatization, deprivatization and nationalization.
On the other hand, it is impossible to mix phenomena of different order: the indicated mechanisms, the economic model and the national economy. There are countries with an administrative-command economic model, a multi-structure economy, and a market economy. In reality, a “pure” economy is extremely rare, be it a market economy or a command-bureaucratic one; it is ineffective and therefore short-lived. For example, countries with market economies are officially recognized as such. But this is not the only thing (although this fact is significant). A state with a stable market economy uses, along with market mechanisms and hierarchical governance mechanisms. However, this does not involve mixing abstract economic models. In our opinion, we can talk about a mixed economy in relation to states in transition (the Russian economy is characterized, on the one hand, by the destruction of the old administrative-command system, on the other, by the development of a market economy). It is controversial to say that a mixed economy is characterized by a variety of forms of ownership and the presence of two regulators (market and state). Mixed (public-private) form of ownership is one of the indicators of a mixed economy. Equally simplistic is the view of the mixed economy through the prism of the main regulators.
The need for state regulation of business activities is justified in different ways in the economic and legal literature. In resolving this issue, it is important to point out the need to protect public interests. The state, represented by the competent authorities, carries out an economic function, which is expressed in the following directions:
- ensuring state and public needs, priorities in economic and social development;
- formation of the state budget;
- environmental protection and use of natural resources;
- ensuring employment of the population;
- ensuring the security and defense of the country;
- implementation of freedom of entrepreneurship and competition, ensuring protection from monopolism;
- compliance with law and order in the foreign economic activities of entrepreneurs and foreign investment.
This list of protected public interests is not exhaustive. There are also such public interests as the need for effective management of state property; the need to ensure the quality and safety of goods, works, services; ensuring the integration of the Russian economy into the world economy.
In our opinion, when forming the main directions of state regulation of business activities, criteria for such classification should be determined. It is not yet clear why some areas are included in this list and others are not. There is clearly no scientific approach to the problem at hand.
In the legal literature, there are different forms of government influence on market economy. These include: state regulation of economic activity and control over it; creation and termination of business entities; planning. Regulation of economic activity is government influence in relation to certain business entities with the aim of preventing, changing or ending a certain kind of economic situation or, on the contrary, maintaining it in an appropriate state.
From this point of view, we can talk, for example, about state regulation of banking, stock exchange, investment, and insurance activities. In addition, we can highlight such areas of state legal regulation as accounting of business transactions, business financing, audit, standardization and certification of products (works and services), pricing, etc. These and other types of regulation are reflected in federal laws and other legal acts.
Within this study We will analyze in more detail such areas as ensuring the national economic security of the country, the competitiveness of the Russian economy, state legal regulation of insolvency (bankruptcy), privatization of state and municipal enterprises, deprivatization and nationalization. A special place in the study is occupied by the question of the role of the state in regulating entrepreneurship in the context of globalization. Considering the large volume of issues being studied, this paper makes an attempt to outline the key problems.
State regulation of business activities does not undermine the basic principles of civil legislation (Article 1 of the Civil Code of the Russian Federation). The principle of the inadmissibility of arbitrary interference in private affairs means that the legislator generally allows state intervention in the economy. Permissible (involuntary) interference is based on the law - state regulation of business activities. Arbitrary interference is illegal. In a word, interference is different from interference.
By virtue of Part 1 of Art. 34 of the Constitution of the Russian Federation, any citizen has the right to engage in economic activities not prohibited by law. Therefore, any economic activity (including business) presupposes legal grounds. You cannot engage in those types of business that are expressly prohibited by law. State regulation of entrepreneurship is limited by law.
The situation is more complicated with the limits of government intervention in regulating business activities. Representatives of constitutional law believe that these limits must comply with the principle of proportionality and balance. However, this principle (as well as others) is not formulated in the Constitution of the Russian Federation, although, according to G.A. Gadzhiev, the principle of proportionality and balance follows from the analysis of individual constitutional provisions. A very interesting position: the constitutional principle is not explicitly expressed, but implied.
Guided by this principle, authorities cannot impose obligations on citizens and legal entities that exceed the established limits of necessity arising from public interest in order to achieve the goal pursued by this measure. Otherwise, government intervention in the sphere of entrepreneurship will be excessive. It remains to develop criteria in this regard and create judicial practice, including the legal positions of the Constitutional Court of the Russian Federation.
In this regard, we can highlight the main directions of state legal regulation of the economy in general and business activity in particular. These are, for example, state ownership and entrepreneurship, the use of forms and methods of state planning and regulation (norms, standards, quotas, a system of state, regional and municipal orders); state regulation of the Russian national market, state regulation of international economic relations.
Abstract
Legal regulation of business activities
Introduction
1. Legal regulation of business activities in the Russian Federation
1.1 Concept and characteristics of entrepreneurial activity
1.2 Legal regulation of business activities
1.3 Concept, subject, method, system and sources civil law
2. Business contracts. Main types and features
2.1 Principles and procedure for concluding business contracts
Conclusion
List of used literature
Introduction
Entrepreneurial activity and the social relations that arise in connection with its implementation.
The function of such regulation is performed by the norms of a wide variety of branches of law: constitutional, international, civil, administrative, labor, financial, environmental, land, etc. The set of such norms related to the regulation of entrepreneurship is often combined under the general name “business law” (economic law ).
Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Thus, at the constitutional level, a necessary prerequisite for free enterprise is established - the universal entrepreneurial legal capacity of citizens. In addition, recognizing the right of private property, including land and other natural resources, The Constitution of the Russian Federation enshrines the most important economic guarantee of entrepreneurial activity (Articles 35, 36).
And yet, the main role in regulating entrepreneurship belongs to the norms of civil and administrative law. Civil law determines the legal status individual entrepreneurs and legal entities in property circulation, property relations and contractual relations are regulated. Administrative law rules establish the procedure state registration business entities, licensing procedure individual species entrepreneurial activity, etc. At the same time, civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is the basis of public law. The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms of private law, and primarily civil law.
This is not surprising if we recall the characteristics that characterize entrepreneurial activity: organizational and economic independence, initiative, implementation at one’s own risk, and focus on making a profit.
The relevance of the topic is the change in economic relations in Russia, the emergence of diverse forms of ownership, and the development of entrepreneurial activity. All this influenced the formation of legislation, including the system of state regulation in the field of production of products, works, services, and their quality. IN given time The process of reforming the legislative system in the field of legal regulation is actively underway.
The purpose of the work is to determine the main directions for the development of the foundations of legal regulation in the field of production and sales of products and related processes.
In accordance with the goal, the following tasks were solved:
The concept and signs of entrepreneurial activity are considered;
The legal regulation of business activities in the Russian Federation is considered;
The concept of a business contract is considered;
The main types and features of business contracts are indicated.
The principles and procedure for concluding business contracts are considered.
1. Legal regulation of business activities in the Russian Federation
1.1 P concept and signs of entrepreneurial activity
In the conditions of the free market of goods, works and services emerging in Russia, the scope of entrepreneurial activity is expanding. Entrepreneurial activity is understood as independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by citizens and legal entities registered as entrepreneurs in the prescribed manner.
This definition reflects six characteristics of entrepreneurial activity:
Her independent character;
Implementation at your own risk, i.e. under the entrepreneurs’ own responsibility;
The purpose of the activity is to make a profit;
Sources of profit - use of property, sale of goods, performance of work or provision of services;
The systematic nature of making a profit;
Fact of state registration of business participants.
The absence of any of the first five signs means that the activity is not entrepreneurial. To qualify an activity as entrepreneurial, a sixth (formal) characteristic is also necessary. However, in some cases, an activity may be recognized as entrepreneurial even in the absence of formal registration of the entrepreneur. A citizen who carries out entrepreneurial activities without registration as an individual entrepreneur does not have the right to refer to transactions concluded by him that he is not an entrepreneur.
Knowledge of all legal, i.e., based on the formula of the law, signs of entrepreneurial activity is necessary even if there is state registration of an entrepreneur, since it can be carried out in violation of the law. In some cases, persons who are unable to independently carry out such activities (incompetent), bear independent property liability, or do not have the goal of systematically generating profit are registered as entrepreneurs. In such cases, the registration may be declared invalid by the court, and if the violations of the law committed during the creation of the legal entity are of an irreparable nature, it may be liquidated.
1.2 Legal regulation of business activities
It is necessary to distinguish between entrepreneurial activities and the activities of entrepreneurs. Entrepreneurs not only enter into contracts and are responsible for their violation, but also attract employees, pay taxes, customs duties, bear administrative and even criminal liability for committing illegal acts. The activities of entrepreneurs can be neither a privilege nor a burden of any one branch of law, nor of some comprehensive “entrepreneurial code.” It is regulated and protected by the norms of all branches of law - both private (civil, labor, etc.) and public (administrative, financial, etc.).
Various industry norms on the activities of entrepreneurs provide, for example, federal laws dated June 14, 1995 No. 88-F3 “On state support for small businesses in Russian Federation"and dated December 29, 1995 No. 222 - F3 "On a simplified system of taxation, accounting and reporting for small businesses", as well as Decree of the President of the Russian Federation dated April 4, 1996 No. 491 "On priority measures of state support for small businesses in the Russian Federation" Federation". In particular, they provide for:
The procedure for issuing a patent for the right to apply a simplified system of taxation, accounting and reporting for individual entrepreneurs and legal entities - small businesses;
Benefits for providing them with loans;
However, this does not mean that all branches of law equally regulate business activity itself. Since the content of entrepreneurial activity primarily and mainly consists of property relations of legally equal subjects, i.e., what is regulated by civil law, we can talk about civil regulation of entrepreneurial activity on the basis of the civil code and other civil legislation. This, naturally, requires mastering the basic provisions of civil law and taking into account on this basis the features of civil law regulation of business relations as a type of civil law relations.
Business law reflects the main aspects of civil law regulation of both business activities and the activities of entrepreneurs.
1.3 Concept, subject, method, system and sources of civil law
Civil law is a set of legal norms regulating property and related personal non-property relations based on equality, autonomy of will and property independence of their participants. Civil law, as the leading branch of private law, has its own subject, method, system and sources.
The subject of civil law is property and personal non-property relations. Property relations are property relations and other real relations, relations associated with exclusive rights to the results of mental work (intellectual property), as well as relations arising within the framework of contractual and other obligations. Relationships of a personal nature are recognized as related to property, such as, for example, relations of authorship of works of science, literature, art, inventions and other ideal results of intellectual activity.
The complex of entrepreneurial property relations serves important element subject of civil law. The Civil Code, other laws and other legal acts containing civil law norms not only provide a legal definition of entrepreneurial activity, but also regulate the specifics of the sources of its civil legal regulation, its subjects and their participation in obligations. Important view Entrepreneurial activity regulated by civil law is investment activity, i.e. investment (cash, targeted bank deposits, shares, securities, technologies, licenses, etc.) and a set of practical actions for their implementation.
Civil law does not regulate, but nevertheless protects inalienable human rights and freedoms and other intangible benefits not directly related to property relations, such as, for example, life and health, personal dignity, personal integrity, honor and good name, business reputation, personal and family secrets. Without being purely entrepreneurial, these rights and freedoms play an important role in the life and activities of entrepreneurs.
Civil law is not the only branch of law regulating property relations. Some of these relationships are regulated by other branches of private or public law. Thus, property relations for the payment of wages are regulated by labor law, for the payment of taxes and duties - financial law, and for the payment of administrative fines - administrative law. As a result, in order to distinguish civil law as a regulator of entrepreneurial activity from other branches of law that also regulate individual property relations of entrepreneurs, it is necessary to take into account a set of special techniques and means, i.e. the specifics of the method of influence of civil law on the relations regulated by it.
The civil law method is characterized by the legal equality of participants in regulated relations, autonomy, i.e., the independence of the will of each of them, and their property independence. None of the participants in civil legal relations is in a state of power and subordination, order and execution. As a result, by direct instructions of paragraph 3 of Art. 2 of the Civil Code, civil legislation, as a general rule, does not apply to property relations based on administrative or other power subordination of one party to the other, including tax and other financial and administrative relations.
The method of civil law is sometimes called the method of coordination, title, permission, horizontal connections. The properties of the civil law method of regulating property relations are most adequate to the conditions of the free market, competitive environment and the needs of entrepreneurs. They are based on such basic principles of civil law as the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the unhindered exercise of civil rights, ensuring the restoration of violated rights and their judicial protection.
An important feature of the civil law method is the dispositive nature of many civil law norms. Dispositive norms contain a certain general rule (general model) of behavior of the participants, allowing them the possibility of forming a different model if this follows from another law and (or) agreement of the parties themselves. For example, by virtue of paragraph 1 of Art. 223 of the Civil Code, the right of ownership of the acquirer of a thing under an agreement arises from the moment of its transfer, unless otherwise provided by law or agreement. In the same way, the risk of accidental death or accidental damage to property, according to the general rule of the dispositive Art. 211 of the Civil Code, is borne by its owner, unless otherwise provided by law or contract.
Using these articles of the Civil Code, an entrepreneur - seller of a thing, wanting to quickly free himself from the risk of its accidental destruction and knowing that the buyer is very interested in acquiring it, can persuade the latter to stipulate in the contract that ownership will pass to him not from the moment of transfer of the thing, but, say, from the moment the agreement is signed or comes into force. The civil law method allows entrepreneurs - market participants to freely compete with each other, achieve an optimal balance of mutual interests, best satisfying the needs of consumers for necessary goods, works and services.
The civil law system is formed by civil law norms and their blocks, including civil law institutions and superinstitutions, the external expression of which can be the structural elements of the most important act of civil legislation, consisting of civil regulations, combined into articles and collections of articles: paragraphs, chapters, subsections, sections and parts.
The sources of civil law are the Constitution of the Russian Federation, civil legislation and other acts containing norms of civil law; business customs; generally accepted principles and norms of international law and international treaties of the Russian Federation. The Constitution of the Russian Federation, which has supreme legal force, direct effect and is applied throughout the territory of the Russian Federation, is the foundation of civil legislation. Moreover, since the courts of the Russian Federation, when considering civil cases, increasingly refer to specific articles of the Constitution, the Plenum of the Supreme Court of the Russian Federation on October 31, 1995 adopted Resolution No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice,” explaining the procedure for using articles of the Constitution Russian Federation in judicial practice.
According to Art. 71 paragraph “o” of the Constitution of the Russian Federation, civil legislation is under the jurisdiction of the Russian Federation and consists of the Civil Code and other federal laws adopted in accordance with it, whose norms must comply with the Civil Code. Other sources of civil law are by-laws: decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, acts federal bodies executive power (orders, instructions, rules, etc.). The rules of civil law contained in laws other than the Civil Code must comply with the Civil Code. In turn, similar norms of by-laws should not contradict either the Civil Code and other laws, or acts of higher executive authorities.
Along with national (domestic) laws and other legal acts, the sources of civil law are generally recognized principles and norms of international law, such as, for example, freedom of trade, navigation, etc., as well as international treaties of the Russian Federation, which are an integral part of legal system Russia. International treaties apply directly to relations regulated by civil law, except in cases where their application requires the publication of an internal Russian act. If an international treaty of the Russian Federation establishes rules other than those provided for by civil law, the rules of the international treaty apply.
The two types of sources considered regulate any civil legal relations. As for the third type - business customs - it is applied only in the field of entrepreneurial activity. A business custom is a rule of conduct that has been established and is widely used in any area of business activity and is not provided for by law, regardless of whether it is recorded in any document. Examples of such customs are the time standards often used in seaports for loading and unloading ships, which take into account the subtleties associated with tonnage, type of cargo and vessel, weather, etc. conditions of sea transportation. Only those business customs that contradict mandatory provisions of legislation or agreements for entrepreneurs are not subject to application.
2. Business contracts. Main types and features
A contract is a universal legal form of organizing and regulating economic relations. It allows you to most fully determine the mutual rights, obligations and responsibilities of participants in economic relations. The contract is the main way to implement such principles of economic turnover as remuneration and equivalence.
In general, the functions of an agreement in the economic sphere (commercial agreement) boil down to the following: the agreement acts as a means of expressing the common will of the producer and consumer, which determines the correct pace of supply and demand and serves as a guarantee of product sales. An agreement is the most convenient legal means that represents the relations that develop in the process of carrying out economic activities on the basis of the principle of mutual interest of the parties to these relations; the agreement gives these relations the form of obligations, determines the order and methods of their implementation. The agreement provides for ways to protect subjective rights and legitimate interests of participants in these relations in the event of non-fulfillment or improper fulfillment of obligations.
A contract in the field of economic activity, by legal nature, is a type of civil law contract, the general concept of which is enshrined in Art. 390 GK. In accordance with it, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations. Economic activity as the scope of application of a civil contract determines its characteristics. One of them is the subject composition of the economic contract. The parties or one of them are commercial organizations in various organizational and legal forms, non-profit organizations carrying out business activities within the limits of the rights granted to them by law and constituent documents, individual entrepreneurs.
Based on the above, we can conclude that the same contract can be commercial (if both parties to the contract are entrepreneurs), civil (if both parties to the contract are not entrepreneurs), entrepreneurial, for one party - an entrepreneur, and civil law (household) for another party who is not an entrepreneur. In the latter case, the rules of economic legislation are applied to the entrepreneur, and the rules of civil law are applied to a person who is not an entrepreneur.
Thus, based on the subject composition, commercial contracts are those in which both parties are entrepreneurs (supply contract, contracting contract, contract for the supply of goods for state needs), as well as contracts in which one of the parties, by virtue of a direct indication of an act of legislation, can only be an entrepreneur ( retail purchase and sale agreement, energy supply agreement, rental agreement, household contract, contract trust management property, loan agreement, etc.).
As a second sign commercial contract is the goal to achieve which it is intended. Since the purpose of economic activity is the systematic receipt of profit, an agreement in this area is concluded for the same purpose. This feature of commercial contracts presupposes the compensated nature of the relations mediated by them for the transfer of material and intangible benefits. Any contract in accordance with the Civil Code is assumed to be compensated.
If an entrepreneur is a party to a gift agreement, which is, in its own right, legal nature only gratuitous, such an agreement is not entrepreneurial, since, acting within the framework of the obligation mediated by it, the entrepreneur does not seek to make a profit. Based on the listed characteristics and taking into account the definition of a civil contract, a business contract can be defined as an agreement between the parties who are entrepreneurs, or with their participation, on the establishment, modification or termination of rights and obligations in the field of entrepreneurial activity. An entrepreneurial agreement, therefore, is the same civil law agreement, but with clear signs, conditioned by the sphere of social relations of which it acts as a regulator. It should be noted that the term “contract” has several meanings in civil law. It also denotes a civil obligation legal relationship that arose on the basis of an agreement, a legal fact as the basis for the emergence of a legal relationship, and a document that sets out the contents of an agreement concluded in writing.
The system of commercial contracts is constantly evolving. This dynamics is determined by the development of entrepreneurial relations themselves. The legislation establishes new types of yards (agreement for the sale of an enterprise, an agreement for the assignment of claims (factoring agreement)), and previously established agreements (agreement for the provision of paid services). The classification of business contracts based on various criteria, depending on the goals pursued, allows one to identify and use in business activities one or another type of business agreement and its most optimal conditions.
Based on the subject of commercial contracts, they can be divided into three groups:
Agreements aimed at the transfer of property;
Contracts aimed at performing work;
Agreements aimed at the provision of services.
Within these groups, separate types of agreements are distinguished, corresponding to the names of the chapters of the Civil Code. Thus, within the framework of contracts aimed at the transfer of property, the following types are distinguished:
Purchase and sale agreement;
Lease agreement;
Agreement of exchange, etc.
Within the framework of contracts aimed at performing work, the following types are distinguished:
Contract agreement;
Agreement for the implementation of research, experimental - and design and technological work.
And finally, the group of contracts aimed at performing services is represented by the following types:
Agreement paid provision services;
Contract of carriage;
Transport expedition agreement;
Storage agreement;
Agency agreement;
Commission agreement, etc.
Types of contracts are in turn divided into types. For example, the types of purchase and sale agreement are:
Retail - purchase and sale;
Supply contract;
Agreement for the supply of goods for - state needs,
Energy supply agreement;
Sales agreement - real estate, etc.
Since commercial contracts are a type of civil law contracts, and those in turn are a type of transactions, they are subject to the classification of transactions. Thus, the division of transactions into unilateral and bilateral (multilateral), consensual and real, unlimited and urgent, etc. may equally apply to business contracts.
It should be borne in mind that in relation to contracts, the division into unilateral and bilateral (mutual) is carried out not by the number of participants (since in the contract their number cannot be less than two), but by the nature of the distribution of rights and obligations between the participants. A unilateral agreement gives rise to only rights for one party, and only obligations for the other. In mutual agreements, each party acquires rights and at the same time bears obligations towards the other party.
Thus, based on the above, it can be argued that the system of business contracts is not constant, because this is due to the constant development of entrepreneurial relations. At the same time, a business contract is always aimed at making a profit.
2.1 Principles and procedure for concluding business contracts
The conclusion of contracts in the field of economic activity must be carried out taking into account the principles that underlie the conclusion of civil contracts.
The fundamental principle of concluding a contract, enshrined in the Civil Code as a principle of civil legislation in general, is freedom of contract. Freedom of contract means that entrepreneurs are free to enter into a contract. This means that entrepreneurs are free to resolve issues with anyone regarding something, to what extent to enter into contractual relations. Any coercion to enter into an agreement is not permitted, except in cases where the obligation to enter into an agreement is provided for by law or a voluntarily assumed obligation.
There are exceptions to this principle due to the fact that for one of the parties the conclusion of an agreement may be mandatory.
The first such exception is the public contract provided for in Art. 396 Civil Code. Analysis of this article allows us to identify a number of signs indicating that the contract is not free, i.e. public, namely:
One of the parties to the contractual relationship must be a commercial organization;
The only or one of the activities carried out by this organization must be the sale of goods, performance of work or provision of services;
The activities of a commercial organization must be public, that is, carried out in relation to everyone who contacts the organization (retail trade, transportation by public transport, energy supply, communication services, medical, hotel services, etc.);
The subject of the contract must be the property sold by the commercial organization, the work performed or the service provided.
The price of goods, works, services, as well as other terms of the contract are established the same for everyone, except in cases provided for by law. In the event of an unjustified refusal to enter into an agreement that meets all of the above criteria, the consumer has the right to legally force a commercial organization to enter into an agreement with him, as well as to demand compensation for losses caused.
The second exception is the conclusion of the main agreement provided for by the preliminary requirements that the preliminary agreement established by Art. 399 Civil Code. If the party that entered into the preliminary agreement evades concluding the main agreement, then the other party has the right to demand compulsion to conclude the main agreement, on the terms determined by the preliminary agreement, and compensation for losses. Preliminary agreements must be distinguished from agreements encountered in practice (protocols of intent). The latter only consolidates the parties’ desire to enter into contractual relations in the future. Failure to comply with agreements (protocols of intent) does not entail any legal consequences.
The third exception is the conclusion of an agreement with the person who wins the auction. If one of the parties evades the conclusion of such an agreement, the other party has the right to apply to the court with a demand to compel the conclusion of the agreement, as well as compensation for losses caused by evasion from its conclusion.
The fourth exception is a state contract for the supply of goods for state needs, the conclusion of which is mandatory for enterprises that are monopolists in sales or production certain types goods (works, services).
The second principle of concluding a contract, enshrined in the Civil Code, is the principle of the legality of the contract. Since an agreement as a whole is a type of transaction, then, like any general civil transaction, it is valid if it complies with the legal requirements imposed on it. The conditions for the validity of general civil transactions include: the disputability of the persons who committed it; unity of will and expression of will; compliance with the form of the transaction; compliance of the contents of the transaction with legal requirements. The business agreement must also meet the listed requirements. The procedure for concluding commercial contracts, the sequence of stages established by law, carried out through certain actions aimed at achieving agreement between the parties and called methods of concluding a contract, cover the provisions of Chapter 28 of the Civil Code. The following stages of concluding an agreement in the field of commercial activity can be distinguished: general procedure for concluding an agreement; conclusion of a contract is mandatory; conclusion of a contract by appropriation; conclusion of a contract at auction.
The conclusion of an agreement is usually preceded by so-called non-negotiable contracts. They are established in order to clarify the true intentions of the counterparties, their financial capabilities, determine the price of the future contract, taking into account costs, various design, technical, estimate and other documentation, agreed and other aspects necessary for the conclusion and execution of the contract.
As a general rule, a contract is considered concluded when an agreement is reached between the parties on all the essential terms of the contract. The process of reaching agreement involves two obligatory parties: one party sending an offer and receiving acceptance by the other party who sent the offer.
The value of concluding an agreement in the field of economic activity is explained by the fact that in the field of activity under consideration, the stage (direction of the offer) is sometimes preceded by advertising, and a public offer is often used. Advertising and other offers addressed to an indefinite number of persons are considered as an invitation to make offers. A public offer is a proposal containing all the essential terms of the contract, from which the will of the person making the offer can be seen to conclude a contract on the terms specified in the proposal by anyone who responds.
In accordance with Art. 408 of the Civil Code, the performance by a person who has received an offer (including those who have responded to a public offer) of actions or fulfillment of the terms of the contract specified in the offer (shipment of goods, performance of work, provision of services, etc.) is recognized as acceptance, unless otherwise provided legislation or not specified in the offer. In this case, it is enough that the actions are aimed at partial fulfillment of these conditions, but always within the period established by the offeror for acceptance.
The rules established by Art. 415 of the Civil Code, are applied when concluding a contract without fail, i.e., when concluding a contract is mandatory for one of the parties by virtue of law. The obligated party can either act as the recipient of an offer to conclude a contract, or itself sends an offer to the other party to conclude it. The party with whom the conclusion of an agreement is mandatory must, within thirty days from the date of receipt of the offer, review and send to the other party a notice of acceptance, from the moment the other party reads it, the agreement is considered concluded, or of acceptance of the offer on other terms (protocol of disagreement on the draft agreement ), or a notice of refusal of acceptance.
The party that has received notice of acceptance of the offer on other terms has the right to either notify the other party of acceptance of the contract, or to submit disagreements arising during the conclusion of the contract to the court for consideration within thirty days from the date of receipt of such notice, or the expiration of the period for its acceptance receipt, notice of refusal to accept, as well as in the event of receiving a response to the offer within the prescribed period, the offeror may apply to the court with a demand to compel him to conclude an agreement.
In situations where the obligated party itself sends a draft agreement, the other party has the right to send it a notice of acceptance within thirty days, from the moment of receipt of which by the obligated party the contract will be considered concluded, or a notice of acceptance of the offer on other terms (protocol of disagreements to the draft agreement). If a notice of refusal to accept is received, or a response to the offer is not received within the prescribed period, the contract is considered not concluded, since its conclusion is not obligatory for the party who received the offer. In case of receipt of a protocol of disagreements to the agreement, the obligated party must, within thirty days from the date of its receipt, notify the other party of the acceptance of the agreement in its wording, or of the rejection of the protocol of disagreements. If the protocol of disagreements is rejected or notification of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to submit the disagreements that arose during the conclusion of the agreement to the court, which determines the conditions about which the parties had disagreements. If the party that sent the protocol of disagreements does not go to court, the agreement is considered not concluded. The above rules on deadlines apply unless other deadlines are established by law or agreed upon by the parties.
If the obligated party unreasonably avoids concluding a contract, it must compensate the other party for the losses caused.
The conclusion of an adhesion agreement has second features compared to the general procedure for concluding a commercial agreement. An adhesion agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party only by joining the proposed agreement. The party that develops its forms or standard forms is the person carrying out commercial activities in areas related to mass consumption or the provision of similar services. The conclusion of an agreement by joining an offer or an agreement as a whole may be subject to legislative regulation relevant contracts, the terms of which are determined by mandatory legal norms and enshrined in forms or standard forms (insurance contract), or relations with mass consumption (communication services, energy saving, transport services, etc.). The agreement of adhesion can be terminated or amended at the request of the joining party on special grounds, which boil down to the fact that this party has the right to demand termination or modification of the agreement if the agreement of adhesion, although not contrary to the law, deprives this party of the rights usually granted under the agreement of this type, excludes or limits the liability of the other party for breach of obligations, or contains other conditions that are clearly not applicable to the joining party, which it, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract.
The specified rules do not apply to entrepreneurs, i.e. the requirement to terminate or amend the contract if there are those listed in clause 2 of Art. 398 of the Civil Code, the grounds presented by the party acceding to the agreement in connection with the implementation of its business activities are not subject to satisfaction if the acceding party (entrepreneur) knew, or should have known, on what conditions the agreement is concluded. Thus, the accession agreement, on the one hand, increases the risk of the joining party, who is an entrepreneur, and on the other hand, it simplifies the procedure for concluding business agreements.
A special procedure is the conclusion of contracts through bidding. This method is used, in particular, when selling property in the process of privatization of state property, when fulfilling orders for the supply of goods, performance of work or provision of services for government needs, and in other cases provided for by law. Any contract may be concluded at an auction, unless otherwise follows from its essence. Any property, both movable and immovable, as well as property rights can be sold through auctions.
The essence of the contract in question is that the contract is concluded with the person who wins the auction. The organizer of the auction is the owner of the property, the holder of the property right or a specialized organization acting on the basis of an agreement with the owner of the property (holder of the property right) on their behalf or on its own behalf. Bidding is carried out in the form of an auction or competition. The winner of the tender is the person who offered best conditions, and at an auction the person who offers the highest price. Auctions and trades can be closed or open. Any person can participate in an open auction or competition, but only persons specially invited for this purpose can participate in a closed auction. Bidders make a deposit in the amount, terms and manner specified in the notice of bidding.
If the auction does not take place, the deposit will be returned. It is also returned to persons who participated in the auction but did not win it. The auction organizer must notify all prospective participants of the auction at least thirty days before the start of the auction. The notice must contain information about the time, place and form of the auction, the subject and procedure of the auction, including the registration of participants in the auction, the determination of the person who won the auction, as well as information about the starting price.
The person who wins the auction and the auction organizer sign on the day of the auction or competition a protocol on the results of the auction, which has the force of a contract. If the person who wins the auction evades signing the protocol, he loses the deposit he made. If the organizer of the auction refuses to sign the protocol, then he is obliged to return the deposit in double amount and compensate the owner who won the auction for losses caused by participation in the auction in a part exceeding the amount of the deposit. If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than twenty days or another period specified in the notice, after the completion of the auction and execution of the protocol. If one of the parties evades concluding an agreement, the other party has the right to go to court with a demand to compel the conclusion of an agreement, as well as compensation for losses caused by evasion from its conclusion.
Since the contract is concluded on the basis of a tender, its validity depends on the validity of the tender. If auctions are held in violation of the rules established by law, they may be declared invalid at the request of an interested party, which is the basis for invalidating the contract concluded with the person who won the auction. Not only bidders, but also persons who were refused participation in the auction can act as an interested party. The consequences of the invalidity of the contract are determined in accordance with the rules established by Art. 168 of the Civil Code and other articles of the Civil Code, depending on the violations committed.
Art. 417 - 419 of the Civil Code provide general rules for conducting auctions. They cannot be contradicted special rules, which regulate in detail the procedure for concluding certain contracts at the basis of bidding. Such rules are established, for example, by the Regulations on auctions for the sale of state-owned shares of OAS approved by Order of the Ministry of State Property of June 10, 1998 No. 8 ( new edition The provisions were approved by the Resolution of the Ministry of State Property of June 27, 2000 No. 141).
As a general rule, a contract is considered concluded at the moment the person who sent the offer receives its acceptance (consensual contract). However, if, in accordance with the legislation of the conclusion of the contract, the transfer of property is also necessary, the contract is considered concluded from the moment of transfer of the relevant property (real contract).
If the agreement is subject to state registration, then it is considered concluded from the moment of such registration, and if notarization and registration are necessary - from the moment of registration, unless otherwise provided by legislative acts.
During the process of concluding a contract, disagreements may arise between the parties (pre-contractual disputes). Submitting such disagreements to court resolution is possible in cases where, firstly, the conclusion of an agreement is mandatory for one of the parties and, secondly, the parties have reached an agreement on this. There are two categories of pre-contractual disputes. These are disputes about compulsion to conclude an agreement and disputes over the terms of the agreement. The first are associated with the refusal or evasion of one of the parties from concluding a contract and, as a rule, occur when concluding contracts without fail. The court decision to compel the conclusion of an agreement specifies the conditions under which the parties must enter into an agreement. If the dispute concerns the terms of the contract, then the resolution of the dispute sets out the wording of each disputed term.
Conclusion
IN lately, in connection with the increasing growth of entrepreneurial activity, the need for regulation of entrepreneurship and business activities is becoming increasingly urgent. But this regulation should be based on the requirements and needs of the entrepreneur, and not on the “capabilities” of the state. At this stage of entrepreneurship development, the state has a huge number of ways and methods of influencing entrepreneurial activity. And the interaction between government and business structures is becoming increasingly important in both economic and political contexts. Entrepreneurship sees the stability of power and the stability of society as the main guarantee of its development. And the state acquires through them economic support and effective assistance to the state in achieving social goals. But economic problems problems of both entrepreneurs and states should be resolved not by establishing thoughtless and irrational “rules of the game” by one side for the other, but by finding compromises.
Already now the state, represented by government bodies, is beginning to realize the importance of the decision various problems by coordinating interests (consultations and round tables good for that confirmation).
The functions of the state are not limited to regulation; the state must also support entrepreneurship (especially small entrepreneurship) to form a middle class. Assistance to business entities can be very diverse in its forms. It is carried out both at the state level and in the regions by recognizing state support as one of the most important areas of economic reform. For support, both comprehensive programs and tax incentives are used, as well as the allocation of credit resources on preferential terms. Information and advisory services are organized.
Now it is necessary to change the attitude of the authorities towards the entrepreneur; it is necessary to support entrepreneurship with all our might, because the entrepreneur is the basis for the advancement of society towards a more highly developed, industrial state, which is the basis for the well-being of every citizen of the country.
In this work, it was determined that an agreement in the field of economic activity, by its legal nature, is a type of civil law contract, based on which we can conclude that the conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion civil law contracts, namely: the principle of the legality of the contract, the principle of freedom of contract.
List of used literature
Regulatory acts
1. Decree of the Government of the Russian Federation of January 26, 2006 No. 45 “On the organization of licensing of certain types of activities” // SZ RF. 2006. No. 6.
the procedure for providing federal budget funds in 2005 for state support of small businesses, including peasant (farm) enterprises” // SZ RF. 2005. No. 18, with amendments and additions made by Decree of the Government of the Russian Federation of December 9, 2005 No. 755 // SZ RF.
3. Regulations on the Federal Registration Service, approved by Decree of the President of the Russian Federation of October 13, 2004 No. 1315// SZ RF. 2004. No. 42.
Literature
4. Andreeva L.V. Commercial law of Russia. Problems of legal regulation. M., 2004.
5. Bykov A.G. About the content of the business law course and principles
its construction // Business law. 2004. No. 1.
6. Belykh B.C. Legal regulation of business activities in Russia. M., 2005.
7. Civil law: Textbook. At 2 p.m. Part 1 / General. ed. prof. V.F. Chigira. – Mn., 2000.
8. Civil law. Volume 1. Textbook. Fourth edition, revised and expanded. / Edited by A.P. Sergeev, Yu.K. Tolstoy. – M., 2000.
9. Zinchenko S.A., Shapsugov D.Yu., Korkh S.E. Entrepreneurship and the status of its subjects in modern Russian law. Rostov n/d, 1999.
10. Parashchenko V.N. Economic law. At 2 p.m. Part 1. General provisions. – Mn.: Vedas, 1998.
11. Legal problems of small business / Rep. ed. T.M. Gandilov. M., 2001.
12. Business law: Textbook. allowance / Ed. S.A. Zinchenko and G.I. Kolesnik. Rostov n/d, 2001.
13. Lebedev K.K. Entrepreneurial and commercial law: systemic aspects. St. Petersburg, 2002.
Clause 1 Art. 2 Civil Code Russian Federation
Lebedev K.K. Entrepreneurial and commercial law: systemic aspects. SPb., 2002., S. – 48.
Zinchenko S.A., Shapsugov D.Yu., Korkh S.E. Entrepreneurship and the status of its subjects in modern Russian law. Rostov n/d, 1999., S. – 23.
Clause 1 Art. 1 Civil Code of the Russian Federation
Bykov A.G. About the content of the business law course and principles
its construction // Business law. 2004. No. 1., pp. – 19.
Andreeva L.V. Commercial law of Russia. Problems of legal regulation. M., 2004., S. – 71.
Entrepreneurial activity (entrepreneurship) - according to the civil legislation of the Russian Federation, an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law. Entities of entrepreneurial activity in the Russian Federation may be citizens of the Russian Federation who are not limited in their legal capacity, foreign citizens, stateless persons, as well as Russian and foreign legal entities. In the Russian Federation, the regulation of business activity is based on the norms of civil law, in contrast to most foreign countries, where business activity is regulated by the norms of trade (commercial, economic) law. This is how the legal dictionary defines entrepreneurship.
The issue of the legal basis for state regulation of entrepreneurship cannot be disclosed without characterizing the content of the principles for implementing such a policy. The principles of state regulation of entrepreneurship are fundamental ideas enshrined in legal norms, in accordance with which the mechanism of Russian statehood in the field of entrepreneurship is organized and functions. These principles are part of the objectively existing general principles of government, which are enshrined in the current legislation and are used in the process of governing the country.
The principle of legality is a comprehensive legal principle. It applies to all forms of legal regulation and is addressed to all subjects of law. The main thing in the content of this principle is the requirement for the strictest compliance with laws and regulations based on them. The legality of state regulation of entrepreneurship means that its measures comply with current legislation and are applied in the manner prescribed by law. A sufficient number of high-quality legal norms, along with a high level of their implementation by all subjects of legal relations, is the basis for ensuring the regime of legality of the activities of business entities. The principle of legality is the basis for the functioning of both the state in general and business activity in particular.
The principle of the expediency of state regulation of entrepreneurship is that it should be used only when with its help certain problems in the development of entrepreneurship can be solved and when the negative consequences of its use do not exceed the positive effect achieved with its help. The purpose of applying government regulation is to create obstacles to violations of legal norms.
The content of government regulation measures is subject to the principle of fairness. Justice is one of the general principles of law and is the guiding principle of legal regulation. The fairness of state regulation is ensured by the fact that the rules of law establish the equality of business entities before the law and are expressed in accordance with the volume of regulatory impact and the nature of the offense, in their proportionality.
The next principle of state regulation of entrepreneurship is the mutual responsibility of the state and business entities. At the same time, the main subject of ensuring the security of business activities is legally recognized as the state, which exercises functions in this area through the legislative, executive and judicial authorities. The state must ensure not only the safety of every person, but also provide guarantees to ensure the safety of business activities.
Today, the provisions of the Constitution of the Russian Federation provide guarantees for entrepreneurial activity. The norms of Art. 35 in the Constitution, since it contains three most important guarantees of entrepreneurial activity: no one can be deprived of their property except by a court decision, forced alienation of property for state needs can be carried out only subject to preliminary and equivalent compensation; the right of inheritance is guaranteed. The Constitution solves the main economic and legal problem - the problem of property. The term “property” and its forms in the Constitution are understood as forms of management carried out by various entities. In addition, a number of constitutional provisions provide a unified economic and legal space in the country.
Of fundamental importance are the provisions of the Constitution that proclaimed Russia social state, whose policy, including in the field of economics and entrepreneurship, serves to create conditions for a decent life and free development of a person, and his rights and freedoms are declared the highest value.
It is important to adopt a number of laws such as the Law “On Joint Stock Companies”, new editions of the laws “On Central Bank Russian Federation”, “On Banks and Banking Activities”, which established the modern framework for regulating the country’s banking system, federal laws on international treaties, production sharing agreements and a number of other regulations.
For the development of competition, as one of the main directions in the formation of civilized conditions for business activity, it is important to provide legal support for the development of a competitive environment and the fight against unfair competition. The Decree of the Government of the Russian Federation “On the state program for demonopolization of the economy and the development of competition in the markets of the Russian Federation (main directions and priority measures)” identified two areas of work: legal support for competition and the development of programs for demonopolization and development of competition. It should be noted that Russian legislation reflects the features of its economy and the specifics of its legal system:
along with restrictions on the monopolistic activities of entrepreneurs - business entities, measures are provided to suppress state monopolism - monopolistic actions (acts, agreements) of state authorities and management,
Along with the prohibition of monopolistic actions and the introduction of liability for this, various measures are envisaged to support the development of small and medium-sized enterprises and the disaggregation of monopolistic structures.
The problem of the need for state regulation of natural monopolies was recognized by the authorities only in 1994, when rising prices for the products they produced had already had a significant impact on undermining the economy. At the same time, the reformist wing of the government began to pay more attention to the problems of regulating natural monopolies, not so much in connection with the need to stop the rise in prices in relevant industries or to ensure the use of the possibilities of the price mechanism for macroeconomic policy, but primarily in an effort to limit the range of regulated prices.
The first draft of the Law “On Natural Monopolies” was prepared by employees of the Russian Privatization Center on behalf of the State Committee for Administrative Offenses of the Russian Federation in early 1994. After this, the draft was finalized by Russian and foreign experts and agreed upon with industry ministries and companies (Ministry of Communications, Ministry of Railways, Ministry of Transport, Minatom, Ministry of Nationalities, RAO Gazprom, RAO UES of Russia, etc.). Many line ministries opposed the project, but the SCAP and the Ministry of Economy managed to overcome their resistance. Already in August, the government sent the draft Law, agreed upon with all interested ministries, to the State Duma.
According to the Law “On Natural Monopolies”, the scope of regulation includes the transportation of oil and petroleum products through main pipelines, gas transportation through pipelines, services for the transmission of electrical and thermal energy, rail transportation, services of transport terminals, ports and airports, public and postal services.
The main methods of regulation were: price regulation, that is, the direct determination of prices (tariffs) or the setting of their maximum level; identification of consumers for mandatory service and/or establishment of a minimum level of provision for them. Regulators are also required to monitor various types activities of natural monopolies, including transactions for the acquisition of property rights, large investment projects, sale and rental of property.
Foreign regulatory experience shows that the main thing in such activities is maximum independence of regulatory bodies both from other bodies public administration, and from the economic entities they regulate, as well as the consistency of interests and directions of work of regulatory bodies, which will provide them with the opportunity to make politically unpopular decisions.
The original draft of the Law envisaged that regulators would have a high degree of independence: members of their boards appointed for long periods could not be dismissed for any reason other than by court order; there was a ban on holding multiple positions as members of boards, holding shares in regulated companies, etc. However, in the final version, many progressive provisions borrowed from many years of regulatory practice in foreign countries were either softened or removed, which calls into question the possibility of making decisions that are sufficiently protected from the influence of various political forces.
By 1995, only one system of regulatory bodies had been formed, operating outside the framework of line ministries. These are the Federal and regional energy commissions, created in 1992 to regulate tariffs for electricity and heat. Control over other natural monopolies was exercised by the relevant ministries (Ministry of Economy, Ministry of Fuel and Energy, Ministry of Railways, Ministry of Communications). Thus, the Ministry of Railways received permission to monthly index transportation tariffs taking into account rising prices for the main types of products consumed by its enterprises. The Ministry of Economy and the Ministry of Finance adjusted tariffs quarterly taking into account the financial condition of the industry.
However, even in the electric power industry until 1995, the legal basis for regulation was not fixed. State control over economic activity natural monopolies were significantly weakened due to the transformation of many enterprises into joint-stock companies, where industry interests began to dominate. At the same time, the federal government, while retaining controlling stakes in its hands, was not actively involved in the mechanism of corporate shareholder governance.
Simplified schemes of state regulation of natural monopolies, based on indexation of tariffs (prices) and not accompanied by a thorough check of the validity of costs and investment activities, allowed monopolists to easily bypass the restrictions that quasi-regulatory bodies (Price Department of the Ministry of Economy, Federal Energy Commission) put in their way. The most important reasons the current situation were: lack of necessary legislative framework; uncertainty of the status of regulatory bodies, their dependence both on the government and ministries, and on regulated entities; flaw financial resources and qualified personnel.
Many cases brought by the territorial departments of the State Customs Committee of the Russian Federation for violations of the Law of the Russian Federation “On Competition and Restriction of Monopolistic Activities in Commodity Markets” in 1994-1995 were related to the actions of natural monopolistic enterprises. Numerous cases of inflated tariffs and refusal of service were identified separate groups consumers, inclusion of additional conditions in contracts (participation in the construction of production facilities, transfer of residential premises, provision of material resources).
By January 1996, three presidential decrees were adopted on the creation public services on regulation of natural monopolies in the fuel and energy complex, communications and transport. In March-April, government resolutions on the creation of regulatory bodies were published, in particular, the number of their personnel was determined. However, at the end of May, the head of only one service had been appointed - the Federal Energy Commission. The appointment of the Deputy Minister of Fuel and Energy to this post is a compromise between the government and regulated entities.
Thus, in the field of creating a legislative and institutional framework for regulating natural monopolies, some important and necessary measures have been taken, but much remains to be done both in relation to the construction effective system regulation, and from the point of view of restructuring industries, which will create a more compact and manageable regulatory sphere.
With the beginning of the reforms, the problem of creating a regulatory framework for the insolvency of business entities became an urgent practical task. The importance of the insolvency institution lies in the fact that on its basis insolvent entities are excluded from civil circulation, and this leads to a healthier market and an increase in the security of the functioning of business entities.
The Law “On Insolvency (Bankruptcy)” is one of the most key for the economy of any country. It is the way the bankruptcy procedure is structured in the country that determines the basic “rules of the game” for both industrial giants and small shops.
The new Bankruptcy Law (dated October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”) does not close all loopholes for financial fraud, but eliminates the most egregious of them.
The previous version of the Russian Bankruptcy Law was extremely controversial, and in fact contributed to the creation of a real custom-made bankruptcy industry in Russia. The new law does not close all loopholes for fictitious bankruptcies, does not solve the problem of judicial arbitrariness, it does not “settle” the situation when an enterprise falls into bankruptcy due to the fault of the state, which does not pay the plant for the products it ordered. And yet this law is an undoubted step forward that everyone has been waiting for.
The main thing is that now it will become much more difficult to bankrupt an enterprise, and the procedure itself will be more complex, multi-stage, and controlled.
Bankruptcy ceases to be a “shot in the head” when, having pulled the trigger, that is, starting the bankruptcy procedure, you can no longer fix anything.
Instead of knocking out money - financial recovery.
What is bankruptcy anyway? This is when a company cannot pay off its debts, even if it sells all its property. In our unstable economy, it is often impossible to immediately understand whether an enterprise has actually reached the end. Therefore, only bankruptcy proceedings belong to the bankruptcy procedure itself. All other procedures (monitoring, financial recovery, external management) are essentially pre-bankruptcy.
Under the previous law, anyone to whom the enterprise owed a debt could declare bankruptcy, and he could not collect his debt from it. That is, bankruptcy solved completely different problems - not the liquidation of an enterprise that had run aground and “clogging” the economic horizon, but the satisfaction of one or another specific debtor. The law was written not for the improvement of the economy as a whole, but for the benefit of specific economic entities. The bankruptcy procedure could be started if the debtor was unable to repay a debt of more than 500 minimum wages for 3 months. For these tiny debts it was possible to change the owner of any huge enterprise. The new law establishes a clearly fixed amount of one hundred thousand rubles. Changing the amount of debt does not matter. It is important why exactly the debtor does not pay. To find out, before starting bankruptcy, you must go through judicial procedure debt collection. The court uses the entire arsenal of methods: seizure and sale of property, a ban on transactions without resorting to bankruptcy.
In the new law, for the first time, the figure of the creditor state appears: if you owe the treasury, it, together with other creditors, will demand its full share. The previous law did not give the state the right to vote in bankruptcy proceedings - state representatives could only be present at meetings of creditors and in the arbitration process, without the right to vote. On the other hand, the old law required that the state's claims be satisfied almost in the first place. This was a serious contradiction, a source of confusion and abuse. The new law equalizes the rights of the state and all other creditors: they equally participate in meetings and receive theirs.
In general, the appearance of the “queue” in which creditors “stand” to get their money from the debtor is completely changing. The old law was like this: first, legal costs were covered, then - in descending order - current payments, payment for the work of the arbitration manager, compensation for harm to health, wages of employees of the debtor enterprise, collateral claims, mandatory payments to the budget, and other obligations. The new law gives a different sequence: legal costs, current payments, payment for the work of the arbitration manager, compensation for harm to health, wages of employees of the debtor enterprise, other obligations.
The old law introduced special bankruptcy regimes - usually more lenient - for city-forming enterprises. In addition, there is a separate law on fuel and energy enterprises. The new law introduces special bankruptcy regimes for natural monopolies and military-industrial complex enterprises. Interesting question, will it be possible to bankrupt entire cities and regions under the new law? Today they are trying to solve it within the framework of Dmitry Kozak’s commission (administration of the President of the Russian Federation), since it is closely related to the problem of local self-government. So far, it has been agreed that if the region turns out to be insolvent, direct control over it from the federal center can be introduced.
I would like the law to more clearly spell out the principles by which it is possible to separate a temporary debtor from a truly insolvent one. We propose the following criterion: the company cannot cover its obligations within three months with liquid assets. By liquid assets we must understand money, securities, “receivables”, paid but not returned, VAT, inventory.
The new law, like the old one, leaves room for the arbitrariness of bankruptcy creditors and judges. Clear rules are needed - based on the indicators of the debtor's financial statements.
Entrepreneurial activity in modern conditions requires state regulation, thanks to which the private interests of its specific subjects will be combined with the public legal interests of the whole society. In the system of such regulation measures in the Russian Federation, licensing of this activity has become widespread.
Business licensing is a relatively new phenomenon in Russian legislation, however, certain legal problems have emerged in the application of the licensing mechanism. Their solution becomes a condition for its effective functioning.
Until recently, state licensing of entrepreneurship was the main element of such regulation. Officials had a very convenient mechanism: you can always check how licensed companies operate and quickly stop violations - with a warning, suspension or revocation of the license. At the same time, licensing, by installing unnecessary bureaucratic barriers on the path of entrepreneurs, reduces, as practice has shown, the number of market participants, and therefore weakens competition. This is dangerous for the economy, especially in conditions of practically complete absence public control over the activities of the bureaucratic machine. Of course, the actions of an official can be appealed in court, and the latter very often takes the side of the entrepreneur. However, businessmen do not always dare to initiate proceedings. Sometimes you have to wait quite a long time for a court decision, and during this time officials can paralyze the activities of the obstinate.
But state licensing also has another drawback: the possibility of using it to eliminate competitors. Entrepreneurs who have managed to get along with supervisory authorities initiate inspections of competitors either to obtain classified information or simply to ruin them.
Currently, only those types of business activities fall under the licensing law, “the implementation of which may entail damage to the rights, legitimate interests, health of citizens, defense and security of the state, the cultural heritage of the peoples of the Russian Federation and the regulation of which cannot be carried out by methods other than licensing". In addition, now a license is issued for a period of at least five years (under the old law - at least three). The powers of licensing authorities, procedures for issuing, re-issuing and revoking a license are clarified. Finally, the new law introduces an exhaustive, much shorter than in the old version, list of licensed activities.
However, the unexpected happened: many professional market participants who were affected by the cancellation of licenses have a negative attitude towards it. The main motive: a stream of unprofessionals and outright scammers will pour into the market, who will dump and make quality work unprofitable. Realtors operating in the real estate market are especially unhappy. The appearance of new participants who jumped out “like jacks out of a snuffbox” could lead to lower prices for services and deception of citizens.
But the authors of the reform do not at all abandon administration in the field of entrepreneurship. The removal of barriers to entry into the market is compensated by control over activities directly on the market - new mechanisms for regulating business activities are being introduced for Russia. Thus, the new Code of Administrative Offenses (CAO) came into force. It provides for administrative disqualification of market participants who violate the law - a ban on certain activities or hold a certain position for a period of up to three years. Only a court can apply such a sanction.
It should also be noted that no one has canceled the mandatory and voluntary certification of goods, works or services, as well as certain qualification requirements requirements for market participants. For example, although the production of building structures and materials will no longer be licensed, the consumer will always be able to find out about the quality of building materials using the appropriate certificate.
Questions also arise regarding the application of the new law. After it came into force, a government order was issued that specifically allocated licensing levels (federal, regional). However, there are no relevant regulatory documents (Regulations) on the procedure for licensing a particular type of business activity (with the exception of tourism and construction business) still not.
The licensing system was well developed at the regional level. It was only necessary to supplement it with the Federal Leasing Center, which would make it possible to more effectively and efficiently resolve emerging issues. There should be state control over business. As for removing administrative barriers from his path, why not, for example, introduce a simplified procedure for registering and registering private enterprises using the so-called “single window” method, when all documents are issued to the entrepreneur in one place? necessary documents(including licenses)?
Basic problems of legal regulation related: Firstly, with the definition of entrepreneurial activity and the designation of its subjects, the status of the entrepreneur and his qualities; secondly, rights and obligations of an entrepreneur, thirdly, with the definition of organizational and legal forms of entrepreneurial activity and, fourthly, With legal regulation small business.
Definition entrepreneurial activity and the main qualities that an entrepreneur must have are discussed in the first question of this topic. The second question reveals the characteristic features of the main organizational and legal forms of implementation entrepreneurship and business.
by law the following are installed signs of entrepreneurial activity:
1. Independent nature of entrepreneurial activity, which means implementation entrepreneurial activity an entrepreneur of his own free will and in his own interests. The state carries out general regulation entrepreneurial activity, establishing some restrictions related to the protection of the foundations of the constitutional system, morality, health, rights and interests of other persons, ensuring the defense of the country and the security of the state. For example, the need to obtain a special permit (license) to carry out types of business activities.
On my own independence means the inadmissibility of unlawful interference, i.e. interference of the state and other persons in the activities of an entrepreneur not based on the norms of current legislation. If the latter occurred, then the entrepreneur has the right to apply to the courts for protection.
2. Carrying out business activities at your own risk, means that the entrepreneur independently assumes and bears all the consequences (favorable and unfavorable) of his activities.
3. Entrepreneurial activity is aimed at systematically generating profit. This feature is intended to distinguish entrepreneurial activity from other types of activity. Making a profit should remain the main goal of business activity. Otherwise, this activity cannot be qualified as entrepreneurial. Systematic receipt of profit does not mean random, one-time and temporary, but its constant receipt.
4. A special feature of entrepreneurial activity is its implementation by persons registered as entrepreneurs in the manner prescribed by law. State registration is formal (external) in nature and denotes a requirement that is imposed on the entrepreneur by law and is an element of the mechanism State regulation of business activities. It is designed to ensure accounting of business entities in respect of which the state uses specific legal regulation measures.
Entrepreneur May be physical or legal entity, as well as those united in society (partnership) some physical And legal entities, which according to property rights(or by proxy) own, use and dispose of property of the enterprise(economic unit), manage and organize its economic and financial activities.
Business entities can perform foreign citizens And stateless persons within the limits of rights and obligations.
Entrepreneurship can be carried out without education or with the formation of a legal entity, using And without the use of hired labor.
The law allows the following forms of entrepreneurial activity by property:
1. Private enterprise carried out by business entities on the basis of their property or on the basis of property received and used on legally.
2. Collective entrepreneurship carried out on the basis of collective ownership or on the basis of property obtained and used legally. The organizational and structural forms of collective entrepreneurship can be joint-stock companies, limited liability companies, with additional liability, rental, people's, joint and cooperative enterprises, the property of which is purchased from the state.
The law determines entrepreneur status, which is acquired through state registration. Entrepreneur status determined by the following qualities:
1. Know the organizational and legal foundations of entrepreneurship, basic laws and principles of relations of law, duties and responsibilities.
2. Have state-guaranteed freedom of entrepreneurial activity within the framework of existing economic legislation, the right to economic accounting.
3. Have a systematic approach to solving problem situations, intuition and the ability to predict market conditions, business conditions and its consequences.
4. Be able to draw up an effective strategy and tactics of economic behavior in the market, purposefully organize business activities.
The law establishes rights and obligations of an entrepreneur.
Entrepreneur's rights:
1. The right to independently choose the form of ownership and forms of management.
2. The right to engage in any economic activity not prohibited by law.
3. The right to create any enterprises, the organization of which does not contradict the law.
4. The right to attract on a contractual basis property, funds and certain property rights of other citizens, organizations and enterprises, including foreign legal entities and individuals, to conduct business activities.
5. The right to participate with one’s property and legally acquired property in the activities of other economic entities.
6. The right to independently formulate a program of economic activity, select suppliers and consumers of their products and services, set prices and tariffs.
7. The right to independently hire and fire workers in accordance with current legislation and employment contract(contract).
8. The right to establish forms, systems and amounts of remuneration and other income.
9. The right to open accounts in banking institutions for storing all types of settlement, credit and cash transactions.
10. The right to freely dispose of one’s property and profits from business activities remaining after paying taxes and making other obligatory payments.
11. The right to receive any income, unlimited in size.
12. The right to use the state system of social security and social insurance.
13. The right to act as a plaintiff and defendant in court, arbitration and arbitration.
14. The right to acquire foreign currency and independently carry out foreign economic activities in accordance with the law.
Responsibilities of an entrepreneur:
1. Fulfill all obligations arising from current legislation and concluded agreements.
2. Do not interfere with the union of hired workers into trade unions to protect their interests, provide in employment agreements, agreements, and contracts that workers’ wages are not lower than the established minimum level, and violate other socio-economic standards.
3. An entrepreneur is obliged to make contributions to the state social insurance fund for the insurance of employees.
4. Property liability arises in cases:
Violations of the law;
Failure to fulfill concluded agreements;
Environmental pollution;
Deceiving the consumer regarding the quality of the product, the method of its use, providing incomplete information to deliberately mislead the consumer;
Communicating or spreading false information about competitors;
Release of goods with external design used by other manufacturers;
Illegal access to trade secret competitor or its disclosure;
Using someone else's trademark, company name or production mark without the permission of the economic participant in whose name they are registered;
Obtaining additional income as a result of creating an artificial shortage of goods by limiting their entry into the market with a subsequent increase in prices;
Concluding contracts when it is known that it is impossible to fulfill them and in cases of unfair entrepreneurship.
In all of these cases, the court, at the request of an interested party, may oblige the entrepreneur carrying out these illegal actions to stop them, restore the situation that preceded the offense, compensate for damage and take other actions. A guarantee of the fulfillment of business goals, obligations and responsibility are open personal qualities based on competence, high professionalism, knowledge of market relations and their development.
Types of liability:
1. Legal liability– liability of legal entities and individuals for non-compliance with laws and regulations.
2. Administrative responsibility– legal liability for administrative violation.
3. Civil liability- legal liability for non-fulfillment or improper fulfillment of obligations and contracts, other civil offenses.
4. Shared responsibility– 1) part of the income, property, and other valuables to which one of the participants in the common business, collective owners, and heirs has the right to claim;
2) the extent to which a participant in a common business contributes his own resources, money, is called equity participation. For example, shared construction.
5. Contractual liability– unconditional liability for violations of obligations assumed under the contract, arising from the moment of its conclusion.
6. Financial responsibility– the employee’s obligation to compensate for property and material damage caused through his fault to legal entities and individuals.
7. Taxpayer liability- responsibility borne by a taxpayer who has violated tax legislation, in accordance with the law cases, in the form:
a) collection of the entire amount of hidden or understated income or the amount of tax for another hidden or unrecorded object, a fine in the amount of the same amount. In case of repeated violation - the appropriate amount and a fine of twice this amount. If the court establishes the fact of deliberate concealment or understatement of income by a verdict or a court decision on the claim of a tax institution or prosecutor, a fine in the amount of five times the hidden or understated amount of income may be collected from the Federal Budget;
b) fine for a specific violation:
For failure to keep records of taxable items and for maintaining this record in violation of the established procedure, resulting in hidden or understated income for the audited period - in the amount of 10% of the accrued tax amounts;
For failure to submit or untimely submission to the tax authority of documents necessary for the calculation and payment of tax - in the amount of 10% of the amount of tax due for payment by the due date;
V ) collection of penalties in case of delay in tax payment– in the amount of 0.3% of the unpaid amount of tax for each day of delay in payment, starting from the established deadline for payment of the identified delayed amount of tax, unless other amounts are provided for by law;
G) other sanctions provided by law.
Collection of arrears of taxes and other obligatory payments, and also amounts of fines And other sanctions provided by law, with legal entities produced in indisputably, and with individuals- V judicial ok. Given collection applies to the income they receive, and in case of absence, to the property of these persons. Officials and citizens guilty of violating tax laws are subject to criminal, administrative and disciplinary liability.
8. Unlimited liability– the obligation of the subject to answer for its obligations with all its own property, including personal property.
9. Limited liability– 1) the main aspect of shareholder ownership, which is that the shareholder is liable for debts. A joint stock company only within the limits of its share of the share capital, that is, within the limits of the amount paid by it for the acquired shares;
2) limitation of the company’s liability, consisting in its promise to answer for its obligations; compensate for causal losses only within the limits of the invested capital.
3) limitation of payments of insurance compensation and insurance amounts provided for by the conditions of property and life insurance.
10. Liability of the guarantor- a guarantee of the guarantor to assume the obligations of the person for whom he has guaranteed. And if the person for whom another person is guaranteeing does not fulfill his obligations, then the other person who has become his guarantor is obliged to fulfill the obligations himself.
11. Joint and several liability– joint responsibility of a group of persons who have accepted obligations.
12. Insurance liability– the insurer’s obligation to pay the policyholder insurance compensation or the insured amount in the event of the occurrence of an insurance event stipulated by the terms of the contract.
13. Vicarious liability– 1) additional liability imposed on individual group members who are jointly and severally liable in conditions where the main defendant is unable to pay the debt;
2) the right to collect an unpaid debt from another obligated person if the first person cannot pay it.
Recognizing the need to include special rules regulating economic activity in legislative aspects, legislators have different approaches to solving the problem of legal regulation of business activity.
In some countries, economic activity is regulated by a special branch of law - the so-called commercial law, which exists in parallel with civil law. Along with civil law in these countries, there is a special trade law (code) containing rules governing business activities. This phenomenon is defined by the term dualism, which means the simultaneous existence of different modes of production, consumption, labor markets, interfering with each other within the same economic system. These countries include: France, Germany, Spain, Japan.
In other countries, trade law norms have not received separate codification. But the civil legislation of these countries contains a significant number of rules designed to regulate relations arising in business activities. These are England, USA, Switzerland, Italy. Russia is also following this regulatory path.
All branches of Russian legislation participate in the regulation of relations related to entrepreneurial activity. The relevant provisions are contained in the norms of constitutional, financial, criminal, administrative law, etc.
Tax legislation establishes a special taxation regime, tax accounting and reporting procedures for entities engaged in business activities.
The Criminal Code of the Russian Federation and the Code of the RSFSR on Administrative Offenses provide for specific elements of criminal and administrative offenses in which entrepreneurs act as a special subject, or those whose object of encroachment are social relations related to entrepreneurial activity.
But civil law plays a leading role in regulating relations in business activities. It gives the concept of entrepreneurial activity (Article 2 of the Civil Code of the Russian Federation), defines the legal forms in which it is carried out, regulates property and associated personal non-property relations, relations with the participation of entrepreneurs (citizens, organizations) based on equality and autonomy and property liability of their participants.
The legislation determines legal forms of entrepreneurial activity.
The current legislation of Russia defines several forms in which entrepreneurial activity can be carried out.
1. Carrying out entrepreneurial activities without forming a legal entity - an individual entrepreneur. As a general rule, only fully capable citizens can act as full-fledged subjects of entrepreneurial activity. In accordance with clause 1. Art. 23 G.K. A citizen of the Russian Federation has the right to engage in entrepreneurial activity without forming a legal entity after preliminary state regulation as an individual entrepreneur.
2. Carrying out business activities by a legal entity. Under a legal entity in accordance with paragraph 1 of Art. 48 G.K. The Russian Federation is understood as an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and defendant in court.
To characterize the degree and very possibility of participation of legal entities in business activities, organizations are divided into commercial and non-profit.
