Legal status of state corporations. On the public status of state corporations
The term “legal entity” itself did not exist in Roman law; it was formulated only by medieval glossators.
Roman sources often mention organizations as participants in private legal relations (for example, collegiums, usually formed on a professional basis). All rules on collegiums are based on the fact that this organization acts like an individual, that is, it is a full-fledged subject of private law. The members of the board may change, which, however, does not change the personality of the board. Some Roman colleges existed for centuries. Thus, a legal entity does not depend on those individuals who participate in its activities. The board has its own membership, certain rules formulated in the statutory documents, and its authorized governing bodies act as representatives of the board in civil affairs. The college has its own separate property, formed from the contributions of its members. The college could make transactions and, accordingly, bore responsibility for them. In essence, the collegium was a full-fledged legal entity in the modern sense of the word.
The Romans laid the foundations for dividing legal entities into types.
The oldest were corporate-type legal entities based on membership: collegiums, workshops, municipalities. Collegiums (for example, priestly ones) were the oldest of them; they were created for various non-commercial (social) purposes, that is, in modern legal terms, they had the status of public associations. Workshops are professional non-profit associations of persons engaged in one specific type of fishing. Municipalities were formed during the Republican period and at the beginning of the Principate in cities, which were granted the special status of a self-governing territorial corporation. In this case, all residents of the city were members of the municipality. Municipalities also largely functioned on a non-profit basis.
Corporate legal entities were founded on a democratic principle: the activities of the corporation are determined by its members, who, in particular, accept the charter and form the governing bodies.
In republican law there was freedom to form collegiums. The persecution of them began during the period of the Principate; their activities were permitted only with the appropriate approval of the emperor and the Senate.
For commercial activities, the corresponding agreement created a partnership, which was not a legal entity. The personal composition of the partnership remained unchanged and was determined by the partnership agreement; if its personal composition changed, the agreement had to be changed. A variable composition without changing the contract was possible only in a partnership of tax farmers. This underdevelopment of commercial legal entities (and in fact the absence of such in the modern understanding of this legal category) can be explained by the relatively low (by modern standards) intensity of economic life in Ancient Rome.
In addition to corporations, among legal entities under Roman law there were also institutions based on the separation by one person of part of his property, managed by an official appointed by the owner. Historically, the first institution was the imperial treasury (fisk), which was administered by a person specially appointed by the princeps for this purpose. The activities of the fiscus were regulated not by public, but by private law, that is, it was not a state body, but a legal entity - an institution (the founder was the emperor, because formally the fiscus was considered to belong to the princeps as an individual and a Roman citizen). For its own needs, the legal structure of the fiscus was also used by the Christian Church (in the period after Emperor Constantine I the Great), in contrast to the pagan (pre-Christian) ones. religious associations. The Christian Church created, in particular, charitable institutions.
Questions for self-control
1. What was the concept of “person” and legal capacity in Roman law?
2. What was the position of Roman citizens?
3. What was the position of the Latins and Peregrines?
4. What rights did slaves have?
5. What was the legal status of freedmen?
6. Who were the colons and what was their status?
7. What was meant by legal entities in Roman law?
Chapter 4 Quiz
1. Indicate one of the main elements of the legal capacity of a Roman citizen?
a) the right to enter into a legal Roman marriage;
b) the right to participate in civil proceedings in Rome;
c) the right to be a guarantor for the affairs of other persons.
2. Legal capacity in Ancient Rome depended on:
a) on gender, age and certain diseases;
b) from age;
c) from age and mental illness.
3. Latins are:
a) incompetent Romans;
b) foreigners;
c) residents of Latium.
4. Guardianship was established over:
a) peregrines;
b) mentally ill;
c) minors of both sexes.
5. Who was guardianship assigned to?
a) over minors;
b) over women;
c) over the mentally ill.
You can download ready-made answers for the exam, cheat sheets and other educational materials in Word format at
Use the search form
Legal entities. Status of corporations, municipalities, fiscus, charitable institutions
relevant scientific sources:
- Answers to tickets on civil law (general part)
| Answers for the test/exam| 2016 | Russia | docx | 0.27 MB
1. Civil law as a branch (branch) of law, its system. Isolation from related industries. 2. Subject and method of civil law. 3. Sources of civil law: concept and system. 4. Types
- Answers to the exam on Civil Law of the Russian Federation
| Answers for the test/exam| 2016 | Russia | docx | 0.12 MB
1. A state corporation is a non-profit organization that does not have membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions. A state corporation is created on the basis of federal law.
Property transferred to a state corporation by the Russian Federation is the property of the state corporation.
The state corporation is not liable for its obligations Russian Federation, and the Russian Federation is not liable for the obligations of a state corporation, unless otherwise provided by the law providing for the creation of a state corporation.
In cases and in the manner established by federal law providing for the creation of a state corporation, an authorized capital may be formed at the expense of part of its property. The authorized capital determines the minimum amount of property of a state corporation that guarantees the interests of its creditors.
2. The state corporation uses the property for the purposes determined by the law providing for the creation of the state corporation. A state corporation can carry out entrepreneurial activity only insofar as it serves the purposes for which it was created and is consistent with these purposes.
A state corporation is required to publish annually reports on the use of its property in accordance with the law providing for the creation of a state corporation, unless otherwise provided by the said Law.
The annual report of a state corporation, published taking into account the requirements of the legislation of the Russian Federation on state secrets, must contain information on the implementation of the strategy of the state corporation, other information provided for by the legislation of the Russian Federation and be approved no later than July 1 of the year following the reporting year. The Government of the Russian Federation has the right to establish additional requirements for the content of the annual report of a state corporation, including regarding investment activities.
The annual report of the state corporation is posted on the official website of the state corporation on the Internet information and telecommunications network, taking into account the requirements of the legislation of the Russian Federation on state secrets, commercial secrets no later than two weeks from the date of the decision by the highest management body of the state corporation to approve this report, unless a different period is established by the federal law providing for the creation of a state corporation.
(see text in the previous edition)
The official website of the state corporation on the Internet information and telecommunications network should contain the strategy of the state corporation, the procedure for purchasing goods, performing work, and providing services for the needs of the state corporation.
(see text in the previous edition)
3. The specifics of the legal status of a state corporation are established by law providing for the creation of a state corporation. To create a state corporation, the constituent documents provided for in Article 52 of the Civil Code of the Russian Federation are not required.
The law providing for the creation of a state corporation must determine the name of the state corporation, the purposes of its activities, its location, the procedure for managing its activities (including the governing bodies of the state corporation and the procedure for their formation, the procedure for the appointment of officials of the state corporation and their dismissal), the procedure for reorganization and liquidation of a state corporation and the procedure for using the property of a state corporation in the event of its liquidation.
3.1. The federal law providing for the creation of a state corporation must provide for the formation of a board of directors or supervisory board state corporation (hereinafter referred to as the supreme management body of the state corporation).
The highest management body of a state corporation may include members who are not state civil servants. The Government of the Russian Federation establishes the procedure for the participation of members of the Government of the Russian Federation and state civil servants in the highest management bodies of state corporations.
The competence of the highest management body of a state corporation includes:
approval of a long-term program of activity and development of the state corporation, providing for the implementation of production, investment and financial indicators, and (or) other document about long-term planning, defined by federal law providing for the creation of a state corporation (strategy for the activities of a state corporation);
approval of a system of remuneration for employees of a state corporation, providing for the dependence of the remuneration of its employees on the achievement of key performance indicators;
determining the procedure for using the profits of a state corporation;
making a decision to transfer part of the property of a state corporation to the state treasury of the Russian Federation.
The federal law providing for the creation of a state corporation may also include other issues within the competence of the supreme management body of the state corporation.
The highest management body of a state corporation has the right to create committees and commissions on issues within its competence for their preliminary consideration and preparation. The procedure for the activities of such committees, commissions and their personal composition are established by decisions on the creation of committees and commissions.
Legal status of state corporations in the Russian Federation
Bolotin S.S.
Tyumen State University
scientific supervisor: Tordiya I.V.
G A state corporation is a non-profit organization that does not have membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions. The specification of the goals of creation and the functions of the activity is carried out by federal law, in accordance with which a specific legal entity is created in the organizational and legal form of a state corporation.
Based on the provisions of the law, state corporations have the following characteristics:
1. absence of constituent documents (instead, federal laws are adopted)
2. special ways of forming property (property contribution, income from activities, subsidies from the federal budget, funds from corporation reserve funds, voluntary property contributions) and the fact that state property becomes the property of the corporation
3. reorganization and liquidation are carried out in accordance with the Federal Law by which the corporation was created
4. no obligation to submit documents containing a report on their activities to government agencies.
On this moment There are 6 state corporations in the Russian Federation:
1. Bank for Development and Foreign Economic Affairs (Vnesheconombank);
2. Deposit Insurance Agency;
3. Fund for Assistance to Reform of Housing and Communal Services;
4. State Corporation for Promoting the Development, Production and Export of High-Tech Industrial Products (Rostechnologii);
5. State Atomic Energy Corporation (Rosatom);
6. State Corporation for the construction of Olympic facilities and the development of the city of Sochi as a mountain climatic resort (Olympstroy).
I would like to dwell on certain problems associated with the activities of state corporations.
Firstly, as an exception to the general rules, state corporations are given the right to carry out activities that require licensing without a license - on the basis of the law. For example, Vnesheconombank, on the basis of the Federal Laws “On the Development Bank” and “On the Securities Market,” has the right to carry out banking operations, and also has special legal capacity in the field of professional activities in the securities market.
Secondly, Of particular interest is the legal nature of the ownership rights of state corporations to the property transferred to it by the founder. On the one hand, the law determines that property transferred by the state is the property of state corporations; on the other hand, during the period of existence of a state corporation, the right of the Russian Federation to state property transferred to it is suspended. It is restored to the property transferred to the corporation and acquired by the state to the property newly created and acquired by the state corporation during its operation. It should also be mentioned that upon liquidation of an organization, the property passes back into the ownership of the state, and I think it is no secret to anyone that the property received after liquidation will be significantly less than the transferred...
When characterizing individual state corporations, we can highlight some features of their activities:
1. The Deposit Insurance Agency actually operates as an insurance company, which is commercial.
2. Vnesheconombank carries out not only banking activities, but also insurance. No one exercises control over VEB’s activities; In addition, the Bank is vested with exclusive powers to issue bonds and other securities in accordance with the legislation of the Russian Federation. At the same time, such a right is granted only to commercial organizations, and even then not to all. In addition to all this, VEB has powers that allow it to create competition in economic turnover. At the end of 2010, VEB received 29 billion rubles. arrived. VEB is one of the three largest Russian banks! But it was initially planned that state corporations would be a link between public authorities and business entities, which did not in any way imply competition with the latter!
3. Olimpstroy in the manner established by Part 1 of Art. 12 of the above-mentioned Federal Law No. 238-FZ, carries out, at its own expense, financing measures for the seizure of real estate into federal ownership in accordance with the legislation of the Russian Federation for the purpose of constructing Olympic facilities (which contradicts the rules of the Civil Code of the Russian Federation and other legislative acts on the seizure of land for state needs).
4. Rosatom is generally endowed with the powers of government agencies - it is given the right to adopt regulatory legal acts in the established field of activity, and can also recognize acts of government bodies of the Russian Federation and the former USSR as not valid on the territory of the Russian Federation. In addition, this legal entity is allowed to have its own paramilitary security units. Essentially, this state corporation acts as a government body, and not a private legal entity.
5. And the only state corporation, the existence of which does not contradict the legislation of the Russian Federation, is the Fund for Assistance to the Reform of Housing and Communal Services.
Therefore, based on what was previously mentioned, we can conclude that state corporations, as they are now, significantly contradict the law. The following can be cited as proof of this:
1. a clear difference between state corporations and other types non-profit organizations which, as a general rule, must have a single organizational and legal form;
2. the control of state corporations by the state in the sphere of functioning exclusively for state purposes;
3. lack of control in the management and expenditure of funds allocated by the state.
Thus, since there is a contradiction, then it needs to be eliminated, but if it cannot be eliminated, then the corporation must be eliminated.
It should also be noted that state corporations, in our opinion, are one of the types of public legal entities, along with the state itself and its bodies, as well as the Bank of Russia, the Accounts Chamber and other necessary structures, the regulation of which cannot be completed only by provisions on legal entities, contained in the Civil Code of the Russian Federation. The public essence of state corporations lies in achieving the public interests set by the state, as well as in performing the functions and having the powers of public authorities.
The fact that the status of an employee of a state corporation is equated with the status of a state civil servant also indicates precisely the public status of this institution.
Consequently, in order to avoid contradictions with the law, in this case it is necessary to recognize state corporations as legal entities of public law.
List of used literature:
1. Adarchenko E.O. State corporations as a type of legal entity of public law;
2. Federal Law of December 1, 2007 No. 317-FZ "On the State Atomic Energy Corporation Rosatom" // SZ RF. - 2007. - No. 49. - Article 6078;
3. Federal Law of November 23, 2007 No. 270-FZ "On the State Corporation "Russian Technologies" // SZ RF. - 2007. - No. 48 (2 parts). - Art. 5814;
4. Federal Law of May 17, 2007 No. 82-FZ “On the Development Bank”//SZ RF. - 2007. - No. 22. - Art. 2562;
5. Federal Law of July 21, 2007 N 185-FZ “On the Fund for Assistance to the Reform of Housing and Communal Services” // SZ RF. -2007. - No. 30. - Art. 3799;
6. Federal Law of December 23, 2003 No. 177-FZ “On insurance of deposits of individuals in banks of the Russian Federation”//SZ RF. -2003. -No. 52 (part I). - St. 5029;
7. Federal Law of October 30, 2007 No. 238-FZ “On the State Corporation for the Construction of Olympic Facilities and the Development of the City of Sochi as a Mountain Climatic Resort” // SZ RF. – 2007. - No. 45. - Art. 5415.
- Fedotov P.V. State corporations in Russia: issues of property management. Magazine "Lawyer", 2011, No. 13;
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UDC 347.191.11 O. V. Romanovskaya
LEGAL STATUS OF STATE
CORPORATIONS IN THE RUSSIAN FEDERATION
Annotation. The features of the legal status of state corporations in the Russian Federation are considered. The characteristics of this type of legal entity are highlighted, and shortcomings in legal regulation are identified. It is indicated that the name of this organization does not correspond to the general concept of “corporation”.
Key words: state corporation, non-profit organization, public administration, entity.
O. V. Romanovskaya
LEGAL STATUS OF PUBLIC CORPORATIONS IN THE RUSSIAN FEDERATION
Abstract. The article features analyzes of the legal status of public corporations in the Russian Federation. The author distinguishes features of this type of legal entity identified shortcomings of legal regulation and indicates that the name of the organization does not meet the general concept of “corporation”.
Key words: public corporation, non-profit organization, public administration, legal entity.
IN modern conditions regulation of economic relations is becoming one of the most popular functions of constitutional law. However, economic relations are the subject of legal regulation of various branches of Russian law (administrative, financial, budgetary, currency, tax, civil). Often the problem arises of connecting these industries in the status of those subjects of law who are called upon to actively influence the country’s economy on behalf of the state. The Russian Federation has experience in creating state corporations, which, on the one hand, have a public legal status, and on the other, are designed to “stir up” the investment climate by becoming equal participants in market relations. Many countries are also trying to create some special institutions, co-
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combining public and private law aspects. At the same time, the problems that appear along this path are very clearly revealed in Russian experience creation of state corporations.
Federal Law No. 140-FZ of July 8, 1999 amended Federal Law No. 7-FZ of January 12, 1996 “On Non-Profit Organizations” (hereinafter referred to as the Law), in accordance with which a new type of non-profit organization was defined. commercial organization- state corporation. In accordance with Art. 7.1 of the Law, a state corporation is recognized as a non-profit organization that does not have membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions. The above norm allows us to highlight the characteristics of the corporation:
Sole founder A state corporation can only be a state. Let us add that neither the constituent entities of the Russian Federation nor municipalities can create state (or municipal) corporations;
Membership in a government corporation is excluded;
The goals for which a state corporation is created are not aimed at meeting the needs of individual citizens or legal entities, but are of a more ambitious nature - fulfilling social or management functions in the interests of society as a whole or a particular sector of the national economy. At the same time, a state corporation is not a government body. It is not reflected in the system of executive authorities;
There is a special procedure for establishing a state corporation - only by federal law, which performs the functions of a constituent document;
The state may, in some cases, guarantee certain obligations of a state corporation. At the same time, a state corporation is an instrument not of direct management, but of indirect regulatory influence of the state on social relations.
To create a state corporation, the constituent documents provided for in Art. 52 of the Civil Code of the Russian Federation (charter and constituent agreement). As V.I. Dobrovolsky notes, “only one scanty law of several pages, written by unknown authors” is needed.
The emergence of a new type of non-profit organization has even allowed some lawyers to try on the “state
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“national corporation” to organizations of a different nature, in particular to notary chambers, the Central Bank of Russia (won’t the latter acquire the status of such a corporation?). Meanwhile, the euphoria from the adopted norm should have passed at the stage of discussion of the bill. The explanatory note to the draft Federal Law “On Non-Profit Organizations” stated: “In order to create a legislative framework for the transformation of the Restructuring Agency credit institutions From an open joint-stock company, which is a credit organization, to a non-profit organization, this draft Federal Law proposes to create a new type of non-profit organization that best suits the goals and characteristics of the Agency’s activities - a state corporation.” The contents of the document allow us to come to the conclusion that the amendments to the federal law had a single goal: to provide a legislative framework for only one organization - the Agency for Restructuring of Credit Institutions. Practice has shown that subsequently other state corporations were not created until 2007, which allowed many scientists to characterize Art. 7.1 as “dead”.
The status of state corporations has been the subject of research in a number of dissertations. In most cases, the criticism was not in the nature of recommendations to abandon this type of legal entity. For example, Yu. A. Makarova drew attention to the fact that a state corporation as a non-profit organization does not fall under the existing classification of legal entities, which has both theoretical and doctrinal conditions. P. A. Denisov draws attention to the administrative and legal status of state corporations, which is characterized by the presence of public relations with government bodies. Accordingly, state corporations are a type of public legal entity, in relation to which special rules of legal regulation have been established. D. M. Strikhanova also believes that a state corporation is a legal entity of public law, created to implement socially significant public interests in the economic sphere and possessing power, which entails a combination of private law and public law elements in their status.
However, there are claims to the concept of a state corporation not only of a legal and technical nature, but also of
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conceptual nature. The word “corporation” was formed from the Late Latin “corporatio” (from the Latin “corpus” - association, union) - association - and implies “union”, “society”, “an association of persons united to achieve some goal”. In the Dictionary of the Russian Language, a corporation is also understood as 1) a united group, a circle of persons of the same profession, one class; 2) one of the forms of monopolistic association. However, in Russian legal science, corporations generally mean complex economic structures organized on a hierarchical basis (such as concerns, holdings, etc.) and based primarily on joint stock ownership. In addition, many organizations include the term “corporation” in their name (often for greater respectability), which does not in any way change their organizational legal form. This is just an element of the brand name. The Law “On Non-Profit Organizations” does not contain a prohibition on indicating the word “corporation” in organizations of a form other than a state corporation. In this aspect, we can agree with A. Ya. Kurbatov that this organizational and legal form (state corporation) was a random decision, taken with the aim of giving a special status to the Agency for the Restructuring of Credit Institutions that was being created at that time. Later, the idea itself found its successors. The legislator most likely did not think about what a corporation is and when it is appropriate to use this word in relation to the name of a legal entity. V.I. Dobrovolsky believes that no one took seriously the meaning of the term “corporation” in government bodies: “Preference for the word “corporation” (for example, before the word “fund”) was given mainly due to the fact that in In the eyes of the population, all possible foundations have long discredited themselves, and under the word “corporation”, and even “state”, the average person sees a certain inviolability, power in the person of the state and its entire apparatus.”
Let us dwell on some trends that exist in assessing the importance of state corporations in the system of legal entities. On the one hand, in 2007-2008. there was a certain “itch” for creating corporations. Six state corporations were created in six months. During 2008, ideas for creating state corporations in such areas as distribution of medicines, construction and development of mortgages, grain exports, physical education and sports, etc. were discussed.
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this level is even in relation to Moscow State University named after M.V. Lomonosov. I.V. Ershova pointed to the great future of state corporations: “Their creation in various areas of the economy will actually make it possible to simplify the very cumbersome structure of executive authorities and create a real connecting link between the state and business entities.”
On the other hand, the creation of state corporations in general did not find a positive assessment among venerable legal scholars. The main charges can be systematized in the following order:
The inclusion of state corporations in the system of non-profit organizations blurs the scientific criteria for classifying legal entities. In addition, their inclusion in the list of non-profit organizations clearly contradicts the nature of many corporations;
There is inconsistency in norms special laws establishing the status of state corporations, the lack of uniform rules that would allow identifying the general statutory features of state corporations. We should agree with E.V. Talapina that every law on the creation of a state corporation seems to re-create the legal status of this type of legal entity. In this case, the normative regulation is replaced by individual legal regulation;
There is opacity and lack of control in the system of management, distribution of property, state control, and the actual “free privatization” of large state financial resources. S. V. Stepashin, Chairman of the Accounts Chamber of the Russian Federation, noted that such organizations only create wide scope for corruption.
The issue of control over state corporations is identified by many legal scholars as a matter of principle. Indeed, the state, by allocating huge financial resources (about 600 billion rubles), is not carrying out a charitable act, but the implementation of socially useful goals. Accordingly, the state is obliged to exercise control over the legality and efficiency of spending financial resources.
Without going into criticism of the institution of state corporations, we note that the change of the President of the Russian Federation entailed a change in attitude towards state corporations. The “first strike” was inflicted
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Sen in the draft Concept for the development of legislation on legal entities, recommended by the Council under the President of the Russian Federation for the codification and improvement of civil legislation (Minutes No. 68 of March 16, 2009). The very right to exist of state corporations was questioned. A little later after the Concept appeared at the meeting Russian Union industrialists and entrepreneurs, Chairman of the Supreme Arbitration Court of the Russian Federation A. Ivanov spoke about the need to transform state corporations into joint-stock companies. Following this, the Ministry of Economic Development also put forward for discussion a proposal to reform state corporations.
Russian President D. A. Medvedev dotted all the i’s in his annual message to the Federal Assembly of the Russian Federation on November 12, 2009: “As for state corporations, I consider this form to be generally unpromising in modern conditions.”
However, the change of the Russian President may once again revive the discussion about the future of state corporations. V.V. Putin has shown himself to be an active supporter of this organizational and legal form, although a return to the dispute about state corporations is not among the primary problems that have arisen recently. But now the criticism has gradually faded away. In any case, disputes around the status of state corporations lead to research on a more global scale - about the status of legal entities of public law, with the help of which the state can actively influence economic relations. We can only hope that the conclusions and proposals regarding state corporations will be taken into account at the new stage of lawmaking.
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Romanovskaya Olga Valentinovna - Doctor of Law, Professor, Department of Private and Public Law, Penza State University, Penza, e-mail: [email protected]
Romanovskaya Olga Valentinovna - Doctor of Law, Professor, Private and Public Law department, Penza State University, Penza, e-mail: vlad93@sura. ru
Romanovskaya O. V., 2013
D. M. STRIKHANOVA
Moscow State Law Academy named after
ON THE PUBLIC STATUS OF STATE CORPORATIONS
This paper analyzes the legal nature of state corporations within the framework of a new organizational and legal form. The possibility of the existence of legal entities of public law that do not fit into any of the existing forms of commercial and non-profit organizations, and the possibility of their appearance in Russian law, is noted. Their specific characteristics are indicated. It has been revealed that state corporations are a type of legal entity of public law.
The creation of state corporations is based on a number of exceptions to the rules characteristic of legal entities, therefore each of the state corporations is unique in its own way legal status. This allows us to consider state corporations from the point of view of their legal form as a new organizational and legal form.
Thus, a state corporation is an organizational and legal form of a non-profit organization that is created to perform socially significant, essentially state (public) functions. The founder of any state corporation is the state, i.e., a subject that has public power and vests part of its powers in the organization being created. Consequently, state corporations are vested with powers, in particular, regarding legal regulation, which is the exclusive prerogative government agencies. However, it is important to note their lack of constituent documents, the functions of which are performed by law. Thus, legal entities of the same organizational and legal form act on the basis of different laws and according to different rules.
The publicity of the status of state corporations is also expressed in the fact that the property transferred by the Russian Federation into the ownership of a state corporation is used only for the purposes determined by the law providing for its creation, namely for social, managerial and other socially useful purposes. Thus, the state corporation is a qualitatively new organizational and legal form, which led to the emergence new form property.
Taking into account all of the above, it is advisable to talk about the existence of such legal entities that do not fit into any of the existing forms of commercial and non-profit organizations, i.e., about the category of legal entities of public law. This category includes those legal entities that act on behalf of public legal entities or in public interests, but are not government bodies or local government. Legal entities of public law are created to achieve various socially significant goals and can be vested with power. They must have strictly targeted legal capacity.
The current Russian legislation, unlike some European countries, does not recognize the category of “legal entity of public law”. In legal doctrine, the discussion about the possibility of the emergence in Russian law of a special category of legal entities, namely legal entities of a public nature, has been ongoing relatively recently. The main purpose of the creation and activities of such legal entities is “common affairs”, “common good”, “generally beneficial activities”, to achieve which they use power methods. It is important to note that Russian legislation provides for the existence of legal entities performing public functions. Examples of such legal entities include: the Central Bank of the Russian Federation, Pension Fund RF, Foundation social insurance, Compulsory Medical Insurance Fund, military units of the Armed Forces of the Russian Federation.
Scholars adhere to different concepts of a legal entity regarding its industry affiliation and therefore define the construction of a legal entity of public law in different ways. Some authors, mainly civil scholars, adhere to the sectoral concept of a legal entity. They note that the design of a legal entity is born of the needs of property (civil) turnover and is not an intersectoral, but a civil legal category. Civilists mentioned legal entities of public law mainly when analyzing foreign legislation. Thus, he pointed out that when “bourgeois codes establish certain provisions on legal entities of public law, they approach them as participants in civil circulation, that is, as bearers of civil legal capacity, in other words, as legal entities of civil law rights" . He defended the same position. Other authors support the idea of an intersectoral concept of a legal entity. Proponents of the cross-branch concept of a legal entity believe that it can be used by any branch of law to designate a subject of law other than an individual.
However, by studying the nature of legal entities of public law, it is possible to identify their common specific characteristics, based on which state corporations are a type of legal entity of public law, namely:
1. A legal entity of public law is a public entity whose purpose is not to carry out entrepreneurial activities, but to solve problems of a public and social nature. State corporations are created to achieve some socially useful purpose, including to perform managerial functions.
2. These persons are always associated with public power: they either exercise it, or collaborate with it, or constitute the source of such power. Legal entities of public law to a certain extent perform managerial functions.
3. Legal entities of public law are a group of legal entities that are heterogeneous in organization and legal status, which are united by one goal - they are created to perform public functions. Consequently, their organizational and legal forms are different from ordinary legal entities. State legal entities of public law are created in the organizational and legal form of budgetary institutions or state corporations.
4. The procedure for their creation is very different from the procedure for creating other legal entities. Thus, state corporations were established by regulation on the basis of federal laws of the Russian Federation. Thus, they are created through government action rather than through membership, like traditional corporations. Also, state corporations do not have constituent documents; they are not subject to rules on licensing certain types of activities.
5. Legal entities of public law may have a system of governing bodies similar to the system of bodies of an ordinary commercial organization. However, the approach to their formation is different, since appointment, subordination, and strict delimitation of competence dominate here. The state is directly involved in the formation of the highest management bodies of state corporations and the appointment of their sole executive bodies.
6. These legal entities, as a rule, are endowed with property and can be financed from the budget. All state corporations have property by right of ownership, which they need to carry out their professional activities. This right is granted to them by the federal laws on their creation. Some of them may receive budget funds, but on a one-time basis, and not on the basis of permanent funding.
7. The liability of such legal entities is most often of a public nature. The legislation does not establish special forms of public legal liability of state corporations. However, such responsibility is not established in relation to federal ministries, federal services and agencies, which are public legal entities. At the same time, the legislation establishes, instead of special responsibility of such persons, personal responsibility, for example, a minister, for the fulfillment of the powers assigned to him. In practice, a minister who has not lived up to his trust is dismissed by the President of the Russian Federation from his position. Liability applies similarly to officials of public corporations.
Thus, state corporations are a type of legal entity of public law along with executive authorities (ministries, federal services and agencies). In this regard, it is necessary to understand the reasons for the state’s refusal of traditional organizational and legal forms in which it has the right to create legal entities, and the need to create state corporations. Until recently, the state created legal entities in the forms of a budgetary institution or a state (municipal) unitary enterprise. However, a budgetary institution and a state unitary enterprise are not able to quickly solve problems that arise during the implementation of their activities, since their powers to dispose of property are severely limited. Thus, state property in accordance with paragraph 1 of Art. 296 of the Civil Code of the Russian Federation is assigned to the institution with the right of operational control. According to Art. 161 of the Budget Code of the Russian Federation, the conclusion and payment by a budgetary institution of state (municipal) contracts and other agreements to be executed at the expense of budgetary funds is made within the limits of budgetary obligations communicated to it and taking into account accepted and unfulfilled obligations. If a budgetary institution reduces the previously established limits of budget obligations by the main manager of budgetary funds, leading to the impossibility of the budgetary institution fulfilling budgetary obligations arising from the state (municipal) contracts (other agreements) concluded by it, the budgetary institution must ensure the approval of new deadlines, and if necessary, and other conditions of state (municipal) contracts (other agreements).
The rights of a state unitary enterprise to dispose of the property assigned to it under the right of economic management are also severely limited by the Federal Law “On State and Municipal unitary enterprises". A state unitary enterprise has the right to dispose of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, goals, objects, the types of which are determined by its charter. Transactions made by a state unitary enterprise in violation of this requirement are void. It does not have the right, without the consent of the owner, to sell real estate belonging to him, rent it out, pledge it, make a contribution to the authorized (share) capital of a business company or partnership, or otherwise dispose of such property. In connection with the above reasons, the considered organizational and legal forms of legal entities turned out to be less effective for the state both for the purpose of its participation in civil circulation and for solving management problems, and were gradually squeezed out by state corporations.
In 2007, 6 large state corporations were created, which must solve the tasks assigned to them much faster compared to other state legal entities, the activities of which are complicated by various prohibitions. However, in accordance with the message of the President of the Russian Federation to the Federal Assembly in 2009, a state corporation is considered as a hopeless form. Based on this, corporations that have a statutory operating time frame must be liquidated upon completion of their activities, and those that operate in a commercial environment must be converted into joint stock companies. However, it is important to review not only the legislation on state corporations, but also the legislation on state legal entities in order to detail the conditions and principles of their activities and avoid gaps in the legislation.
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