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§ 1. Subject structure in agreements of managing subjects.

Relations on the conclusion of various agreements between managing subjects by the nature are non-uniform, therefore and subjects of such relations are various enough. However, all subjects have one similar sign - the legal personality.

The legal personality of the managing subject means presence at it legal capacities, that is abilities to have the right, and capacity, that is abilities the actions to get and carry out the rights and duties.

Separately from the legal personality it is necessary to allocate deliktosposobnost the managing subject. Deliktosposobnost means ability to "answer" in legal sense for perfect offences (torts).

In difference from physical persons, investment of the managing subject with the legal capacity, capacity and deliktosposobnostju occurs simultaneously at the moment of the state registration of the subject in the tax organ.

Thus, such subjects who are allocated by special competences and (or) to which specially certain duties which can influence a competition are assigned and which bear thus the special liability for nonperformance of duties can be the party in competitive agreements only.

Unlike subjects of the competitive right, managing subjects can be subjects of agreements in antimonopoly sphere only.

The term «the managing subject» for more than 20 years has undergone considerable changes. So, the Law of RSFSR from March, 22nd, 1991 N 948-1 «About a competition and restriction of monopolistically activity in the commodity markets» defined managing subjects as engaged in activity on manufacture, realisation or acquisition of the goods of private, state, municipal or other enterprises, joint-stock companies and other associations, the unions, associations, concerns, interbranch, regional and other associations of the enterprises, and also other associations (organisations) and the establishments using corporate franchises, the citizens who are engaged in enterprise activity. The given law operated up to 2006. It is necessary to notice, that in the given edition are mentioned including the physical persons who are engaged in enterprise activity.

100 About modification of the Federal act of the Russian Federation «About competition protection» and separate acts of the Russian Federation: feder. The law Grew. Federations from December, 6th, 2011 N 401-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on November, 22nd, 2011: it is approved by Federation Council Feder. Sobr. Dews. Federations on November, 29th, 2011//SZ the Russian Federation, 12.12.2011, N 50, item 7343.

After acceptance of the modern Law on competition protection in 2006 under the managing subject began to understand individual businessmen (on the first place), the commercial and noncommercial organisations. Physical persons were not considered as managing subjects. Only the Federal act of the Russian Federation from December, 6th, 2011 N 401-FZ100 had been made essential changes in item 5 of item 4 ZoZK, in which result definition of the basic subject of the competitive right has been rather expanded. Besides the specified persons number of managing subjects began to concern and other persons who have been not registered as individual businessmen, however engaged in economic activities on the basis of the state registration and (or) licences, and also owing to membership in the self-adjustable organisations.

The main sign for a recognition of such activity as coming under to antimonopoly regulation is the fact of extraction of the income.

The concept of the managing subject in the domestic legislation rather already similar concept under EU legislation. Absolutely any person admits the European antimonopoly right the managing subject (both physical, and legal), involved in economic activities, without dependence from its legal status. An exception of this rule are hired workers and civil servants. By the way, the concept of "the managing subject» in EU has no fastening. It is developed as a result of long-term judiciary practice.

So, the managing subject is the basic figure of the competitive right. It is caused by its direct or indirect participation in all competitive legal relations. Besides, judiciary practice knows cases of association of managing subjects or their introduction into groups of persons.

From the maintenance of item 5 of item 4 of the Law on protection of a competition of operating edition follows, that as managing subjects are understood:

- The commercial organisations;

- The noncommercial organisations which are carrying out activity, bringing in to their the income;

- Individual businessmen;

- Other physical persons who have been not registered as individual businessmen, but carrying out the professional work which is bringing in the income, according to federal acts on the basis of the state registration and (or) licences, and also owing to membership in the self-adjustable organisation.

The concept of the commercial organisations is fixed in item 50 GK the Russian Federation are the organisations pursuing extraction of profit as a main objective

The activity which can be created in organisation-legal forms of economic associations and societies, country (farmer) economy, economic partnership, production co-operatives, the state and municipal enterprises.

All commercial organisations are created, as a rule, on voluntary - contractual - a basis and on the basis of membership. All of them are allocated by the legal capacity owing to the law from the moment of their registration as those.

The commercial organisations share on two kinds: corporate legal bodies (corporations) (economic societies, economic associations, country (farmer) economy, production co-operatives and economic partnership) and unitary legal bodies (the state and municipal unitary enterprises). Such division occurs on the basis of possibility of participation (membership) of the founder in the legal body and in possibility of formation by it of the supreme body of the legal person.

Associations and societies as the commercial organisations become uniform proprietors of the property formed at the expense of brought contributions of their participants, and also made or got in the course of the economic activities. The Civil code of the Russian Federation defines such subjects as the corporate commercial organisations with divided into shares (contributions) of founders (participants) authorised (skladochnym) the capital.

The Russian law distinguishes associations from societies as association of persons (businessmen, businessmen) and association of capitals accordingly. Association of persons, except other, means also personal participation of companions in an association administrative office whereas in a society it is enough to bring the contribution to the community property. Thus, in economic societies participation of members in an administrative office by analogy to association is not excluded.

According to item 69 GK the Russian Federation the general partnership admits such association which participants (general partners) according to the prisoner between them the contract are engaged in enterprise activity on behalf of association and bear responsibility under its obligations property belonging to them. General partnerships mean relations of personally-confidential character between the participants. For this reason in history the first general partnerships members of a family (so-called «family business») were which participants are marked.

Under such circumstances participants of the general partnership have enough great volume of the rights concerning activity of such association. The exit from the general partnership of one of its participants is supposed at any moment. Thus the part of property proportional to its share in the charter capital, comes under to delivery.

The limited partnership (limited partnership) the association in which along with the participants who are carrying out on behalf of association enterprise activity and answering for obligations association by the property (general partners), is available one or several participants - investors (kommanditistov) which bear risk of the losses connected with activity of association admits, within the sums of the contributions brought by them and do not accept participation in realisation by association of enterprise activity (item 82

GK THE RUSSIAN FEDERATION).

The federal act of the Russian Federation from May, 05th, 2014 N 99-FZ enters change in GK the Russian Federation on which basis now the number kommanditistov in the limited partnership should not exceed twenty. Otherwise the limited partnership should be transformed to an economic society within a year. In case the limited partnership will not be transformed to such term, it comes under to liquidation judicially if its number kommanditistov does not decrease to twenty.

The only thing constituent limited partnership documents are the articles of incorporation which subscribes all general partners (ch. 1 items 83 GK the Russian Federation).

General partners carry out also management of limited partnership activity by general partnership rules (ch. 1 items 84 GK the Russian Federation). Investors have not the right to participate in management and limited partnership business management, to speak on behalf his name differently as by proxy, and also to challenge actions of general partners on management and business management.

General partnership and limited partnership liquidation occurs on the same bases. At limited partnership liquidation at leaving of all investors participating in it general partners can transform the limited partnership to the general partnership.

After the introduction into action of the Federal act of the Russian Federation from May, 05th, 2014 №9-Ф3 on September, 1st, 2014 economic societies are subdivided on public and not public. Depending on a society kind its participants receive certain volume of actions which has the right (are obliged) to carry out within the limits of corporate relations. For example, participants of a public society have not the right to define independently volume of competences of participants, that is is not proportional to their shares in the charter capital, and in other parity (paragraph 2 of item 1 of item 66 GK the Russian Federation see). Participants of not public society, in turn, have the right to define volume of the competences independently. Or other example: participants of not public society have the right to demand to exclude other participant from a society judicially with payment to it the actual value of its share of participation whereas participants of a public society have not the right to declare such requirement (see paragraph 4 of item 1 of item 67 GK the Russian Federation).

Economic societies now happen two kinds: societies with limited liability and joint-stock companies. Positions GK the Russian Federation about societies with additional responsibility, about affiliated and dependent societies are excluded.

For today the society with limited liability is the most widespread organisation-legal form of the commercial organisations.

As follows from ch. 2 items 66.3 GK the Russian Federation, a society with limited liability are not public society.

According to the newest edition ch. 1 item 87 GK the Russian Federation under a society with limited liability admits an economic society, ustavnyj which capital is divided into shares; participants of a society with limited liability do not answer under its obligations and bear risk of its losses connected with activity of a society, within cost of shares belonging to them.

Suhanovym E.A. is noticed, that the formulation of the name of such commercial organisation is not exact, as contributions of participants carry over the legal person and participants bear any more responsibility on its debts, and risk of losses (loss of the contributions brought by them).101

The number of participants of a society with limited liability should not exceed fifty. In case of numerical excess the society with limited liability should be transformed to joint-stock company within one year, otherwise the society with limited liability will be liquidated judicially if the quantity of participants is not reduced to fifty.

The society with limited liability can be founded one person or can consist of one person, including at creation as a result of reorganisation (ch. 2 items 88 GK the Russian Federation).

101 Russian civil law: the textbook. Otv. The editor: E.A.Sukhanov. - 2 izd., a stereotype. M: the Statute, 2011. T. 1. With.

The order of establishment of a society with limited liability by the named block of amendments to chapter 4 of a part of the first GK the Russian Federation has not changed, except for change in the name - since September, 1st, 2014 of a society with limited liability are not founded, and created.

According to item 89 GK the Russian Federation founders of a society with limited liability conclude among themselves the contract on establishment of a society with the limited liability, a defining procedure them of joint cooperation on society establishment, the size of the charter capital of a society, the size of their shares in the charter capital of a society and others statutory about societies with condition limited liability.

The constituent instrument of a society with limited liability is having got tired.

The joint-stock company is a public society in case its actions and the securities converted in its action, publicly take places (by an open subscription) or publicly address on the conditions established by laws on securities. The given rule is applied and concerning joint-stock companies, the charter and which company name contain instructions that the society is public. If the joint-stock company does not answer the specified signs it admits not public society (item 66.3 GK the Russian Federation).

Besides, if joint-stock companies have been created till September, 1st, 2014, thus they meet the requirements ch. 1 items 66.3 GK the Russian Federation, such joint-stock companies admit public without dependence from instructions their company name that the society is public.

So, according to ch. 1 item 96 GK the Russian Federation joint-stock company admits an economic society, ustavnyj which capital is divided into certain number of actions; participants of joint-stock company (shareholders) do not answer under its obligations and bear risk of the losses connected with activity of a society, within cost of actions belonging to them.

By analogy to a society to limited liability now the joint-stock company not obrazovyvaetsja, and is created.

The order of creation of joint-stock company is provided item 98 GK the Russian Federation. Before registration of a society founders bear a joint liability under obligations.

The joint-stock company constituent instrument is the charter approved by founders containing data on the company name of a society and a place of its finding, a condition about categories of actions let out by a society, about their face-value and quantity, about the size of the charter capital of a society, the rights of shareholders, structure and the competence of bodies of a society and the method of adoption them of decisions, including on questions, decisions on which are accepted unanimously or special majority of voices (ch. 3 items 98 GK the Russian Federation).

The list of obligatory data which should contain in the joint-stock company charter, is not settling.

In end of a theme of joint-stock companies it would be desirable to note the following short stories brought by the block of amendments in chapter 4 of a part first GK the Russian Federation: participants of public joint-stock companies are obliged to create the collegiate body of management of a society (observant or other council) (the number of members of this body should be not less than five); participants of public joint-stock companies have not the right to provide in the charter necessity of reception of the consent to alienation of actions, and also on the right of priority of acquisition of actions.

Since September, 1st, 2014 of a society with additional responsibility, and also the closed joint-stock companies are abolished.

Country (farmer) economy as a kind of the commercial organisation - the legal body created by citizens, leading joint cooperation in the field of agriculture without formation of the legal person on the basis of the agreement on creation of a country (farmer) economy.

As follows from paragraph 2 ch. 1 item 86.1 GK the Russian Federation, a country (farmer) economy admits voluntary association of citizens on the basis of membership for joint industrial or other economic activity in the field of the agriculture, based on their personal participation and association by members of a country (farmer) economy of property contributions.

The Russian Federations named above position GK define a country (farmer) economy as the legal body.

In the event that the country (farmer) economy (other variant - a farm is supposed) - is not registered in a statutory order, it is association of the citizens connected by relationship and (or) the property, having in the joint property property both in common carrying out industrial and other economic activities (manufacture, processing, storage, transportation and realisation of agricultural production), based on their personal participation. 102

As the managing subject in competitive relations the country (farmer) economy registered as the legal person can act only.

Economic partnership as the commercial organisation represents organisation-legal form of the legal person rather new to the domestic legislation.

102 About a country (farmer) economy: feder. The law Grew. Federations from June, 11th, 2003 N 74-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on May, 23rd, 2003: odobr. Federation Council Feder. Sobr. Dews. Federations on May, 28th, 2003//SZ the Russian Federation, 16.16.2003, N 24, item 2249.

On the basis ch. 1 item 2 of the Federal act from December, 3rd, 2011 N 380-FZ economic partnership admits the commercial organisation created by two or more persons, in management of which activity according to the specified federal act participants of partnership, and also other persons take part in limits and volume which are provided by the agreement on management of partnership.

Feature of such form of the legal person is, first, more free management of the organisation (it is a question of management on the basis of the concluded contract on management between participants of the commercial organisation which can include the rights meted on participants and the duties which distinct from the rights and duties of other participant), secondly, possibility are to involve as participants of physical persons.

According to item 8 of the Federal act from December, 3rd, 2011 N 380-FZ the establishment of economic partnership is carried out under the decision of its founders.

Creation of partnership by reorganisation of the existing legal person by the law is not supposed.

Under production co-operative (artel) voluntary association of citizens on the basis of membership for joint industrial or other economic activities (manufacture, processing, it is sold industrial, agricultural and other production, performance of works, trade, consumer services, rendering of other services), based on their personal labour both other participation and association by its members (participants) of property shares admits. The law and the production co-operative charter participation in its activity of legal bodies can be provided.

So, on the basis ch. 2 items 14 of the Federal act from December, 08th, 1995

103

Ш93-ФЗ Legal bodies irrespective of their organisation-legal forms and patterns of ownership and citizens can be associate members of co-operative society brought a share in co-operative society.

103 About agricultural cooperation: feder. The law Grew. Federations from December, 8th, 1995 N 193-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on November, 15th, 1995: odobr. Federation Council Feder. Sobr. Dews. Federations on November, 28th, 1995//SZ the Russian Federation, 11.12.1995, N 50, item 4870.

The production co-operative supreme body is general meeting of its participants. In some cases the supreme body congress, conference or other representative (joint) body defined by the charter can be.

The production co-operative under the unanimous decision of its members can be transformed to economic association or a society.

The unitary enterprise the commercial organisation which has been not allocated with the property right on fixed for her by the proprietor property (item 113 GK the Russian Federation) admits. The unitary enterprises happen state and municipal.

The property of the state or municipal enterprise belongs to it on the right of economic conducting or an operational administration.

The constituent instrument of the state or municipal enterprise is having got tired which affirms the authorised state body or local government if other is not statutory. For example, charters of the unitary enterprises, which property belongs to the proprietor which activity is regulated by the Federal act of the Russian Federation from December, 1st, 2007 N 317-FZ104, are registered by the State corporation on an atomic energy "Rosatom".

Body of the unitary enterprise is the director who is appointed the authorised proprietor body if other is not statutory, and to it is accountable.

104 About the state corporation on atomic engineering "Rosatom": feder. The law Grew. Federations from December, 1st, 2007 Ю17-ФЗ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on November, 13th, 2007: odobr. Federation Council Feder. Sobr. Dews. Federations on November, 23rd, 2007//SZ the Russian Federation, 03.12.2007, N 49, item 6078.

105 About the state and municipal unitary enterprises: feder. The law Grew. Federations from November, 14th, 2002 N 161-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on October, 11th, 2002: odobr. Federation Council Feder. Sobr. Dews. Federations on October, 30th, 2002//SZ the Russian Federation,


The legal status of the unitary enterprises is defined by the Civil code and the Federal act of the Russian Federation from November, 14th, 2002 N 161-FZ «About the state and municipal unitary enterprises».105

To the legal bodies, being noncommercial organisations, concern:

1) the consumer co-operative societies including including housing, building and garage co-operative societies, gardening, ogorodnicheskie and country consumer co-operative societies, fund associations, credit co-operative societies, hire funds, agricultural consumer co-operative societies;

2) public organisations which concern including political parties and the trade unions created as legal bodies (the trade-union organisations), social movements, bodies of public amateur performance, territorial public self-management;

3) associations (unions) which associations of trade unions, co-operative societies and public organisations concern including noncommercial partnership, the self-adjustable organisations, associations of employers, commercial and industrial, notarial and lawyer chambers;

4) associations of landowners which concern including TSZH;

5) the Cossack societies brought in the register of the Cossack societies in the Russian Federation;

02.12.2002, N 48, item 4746.

6) communities of the radical small people of the Russian Federation;

7) funds which concern including public and welfare funds;

8) establishments which official bodies (including the state academies of sciences concern), municipal authorities and private (including public) establishments;

9) the independent noncommercial organisations;

10) the religious organisations;

11) the public companies.

The noncommercial organisations can carry out activity bringing in the income if it is provided by their charters, only so far as as it serves achievement of the purposes for the sake of which they are created and if it corresponds to such purposes.

Considering, that antimonopoly regulation is come under by the activity of managing subjects which is bringing in to their the income, the specified noncommercial organisations under certain circumstances come with the purview of law about competition protection.

Public organisations, consumer co-operative societies, associations (unions), associations of landowners, the Cossack societies (brought in the state register of the Cossack societies in the Russian Federation), and also communities of the radical small people of Russia are the noncommercial corporate organisations. In turn the noncommercial unitary organisations are funds, establishments, the independent noncommercial organisations, the religious organisations and the public companies. Criterion of such division similar to the commercial organisations.

Under consumer co-operative society the law defines the voluntary association of citizens based on membership and (or) legal bodies for the purpose of satisfaction of their material or other requirements, carried out by association by its members of property shares.

The constituent instrument of consumer co-operative society - the charter.

The name of consumer co-operative society should contain its main objective of activity and a word "co-operative society".

The consumer co-operative society for the decision of its members can be transformed to other forms of the noncommercial organisations in an order provided by the civil legislation.

Public organisations voluntary associations of the citizens who have consolidated on the basis of community of interests for satisfaction of spiritual or other non-material requirements, for representation and protection of common interests and achievement of other purposes not contradicting the law admit.

Public organisations have the right to be consolidated in associations (unions) in a statutory order. Besides, the public organisation can be transformed under the decision of its participants (members) to association (union), independent noncommercial or fund.

The public organisation constituent instrument is

The charter.

The law establishes the requirement to founders of public organisation: their quantity should be not less than three.

Association (union) and (or) the citizens, based on voluntary or association of legal bodies admits statutory cases on obligatory membership and created for representation and protection of the general, including professional, interests, for achievement of socially useful purposes, and also others not contradicting the law and the purposes having noncommercial character.

By the law it is directly provided, that, in particular, associations of persons in the form of association (union) are created with a view of coordination of their enterprise activity, representation and protection of the general valuable interests, the professional associations of citizens which do not have for an object protection of laws of master and servant and interests of the members, the professional associations of the citizens which have been not connected with their participation in labour relations (associations of lawyers, notaries, appraisers, persons of a creative trade and others), the self-adjustable organisations and their associations.

The number of founders of association (union) should not be less than two. Constituent documents is having got tired.

Association of landowners (premises voluntary association of proprietors of real estate admits a building, including in an apartment house, or in several buildings, apartment houses, country houses, gardening, ogorodnicheskih or the country ground areas, etc.), created by them for tenancy in common, using and in statutory limits of the order property (things), owing to the law being in their joint property or in common use, and also for achievement of other purposes provided by laws.

The charter of association of landowners should contain data on its name including words «association of landowners», the location, a subject the purposes of its activity, structure and the competence of bodies of association and an order of acceptances by them of decisions, including on questions, decisions on which are accepted unanimously or special majority of voices, and also other data, statutory.

The Cossack societies associations of the citizens created with a view of preservation of a traditional way of life, managing and culture of the Russian Cossacks, and also in other purposes provided by the Federal act from December, 5th, 2005 N 154-FZ «About public service of the Russian Cossacks» 106, voluntary taken up in an order, statutory, obligations on execution of state or other service admit brought in the state register of the Cossack societies the Russian Federation.

106 About public service of the Russian Cossacks: feder. The law Grew. Federations from December, 5th, 2005 N 154-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on November, 9th, 2005: odobr. Federation Council Feder. Sobr. Dews. Federations on November, 23rd, 2005//SZ the Russian Federation, 12.12.2005, N 50, item 5245.

Positions GK the Russian Federation about the noncommercial organisations are applied to the Cossack societies brought in the special register if other is not provided by the Federal act of the Russian Federation from December, 5th, 2005 N 154-FZ.

Communities of the radical small people of the Russian Federation voluntary associations of the citizens who concerning the radical small people of the Russian Federation and have consolidated on krovnorodstvennomu and (or) a territorially-neighbour's sign with a view of protection of a primordial inhabitancy, preservation and development of a traditional way of life, managing, crafts and culture admit.

The community of the radical small people of the Russian Federation under the decision of its members can be transformed to association (union) or the independent noncommercial organisation.

The concept of "fund" along with other kinds of the noncommercial organisations is entered for the first time by the described block of amendments into the Civil code and, that is not less important, only for the purposes of the code. So, fund the unitary noncommercial organisation which does not have memberships, founded by citizens and (or) legal bodies on the basis of voluntary property payments and pursuing charitable, cultural, educational or other social, socially useful purposes admits.

The fund charter should contain the same data, as the charter of other noncommercial organisations (a word "fund", a place of its finding, a subject and the purposes etc.).

Feature of funds is the order of their liquidation. So, owing to GK the Russian Federation can be liquidated only under the decree in case:

1) it is not enough property of fund for realisation of its purposes, and to receive additional property it is impossible;

2) the fund purposes cannot be reached, and change of the purposes is impossible;

3) the fund in the activity evades from the purposes provided by the charter;

4) in other cases, statutory.

In case of fund liquidation its property is transferred to the purposes specified in the charter except for cases when the law provides property return to its founders.

Establishment the unitary noncommercial organisation created by the proprietor for realisation of administrative, welfare or other functions of noncommercial character admits. The establishment can be created the citizen or the legal body (private establishment) or accordingly the Russian Federation, the subject of the Russian Federation, municipal union (official body, municipal authority).

The establishment can be state, municipal or private.

State or the municipal authority can be state, budgetary or independent establishment.

Norms GK the Russian Federation new edition about official bodies are applied, for example, to the state academies of sciences. Legal regulation of private establishments is applied to the public institutions created to the introduction into action of new edition of chapter 4

GK THE RUSSIAN FEDERATION.

The independent noncommercial organisation the unitary noncommercial organisation not having memberships and created on the basis of property payments of citizens and (or) legal bodies with a view of granting of services in education spheres, public health services, culture, a science and other spheres of noncommercial activity admits. Requirements to the charter of the given kind of the noncommercial organisation are identical to requirements of other noncommercial organisations.

The religious organisation voluntary association constantly and on lawful basises living on territory of the Russian Federation of citizens of the Russian Federation or other persons, formed by them with a view of joint confession and distribution of belief and registered in a statutory order as the legal person (the local religious organisation), association of these organisations (the centralised religious organisation), and also created by the specified association according to the law on a freedom of worship and on religious associations with a view of joint confession and distribution of belief the organisation and (or) the supervising specified association supervising or co-ordinating body created by specified association admits.

The legal status of the religious organisation is regulated as GK the Russian Federation, and the Federal act of the Russian Federation from September, 26th, 1997 Ш25-ФЗ107 which covers bolshy in relation to the code a circle of questions.

The Public company is the unitary noncommercial organisation which is carrying out the activity in interests of the state and a society, allocated with public functions and powers,

108

Created by the Russian Federation in an order, statutory.

At the moment of a writing of dissertational work the bill regulating a legal status and activity of the public companies, is in the second reading in the State Duma of Federal assembly of the Russian Federation.

It is necessary to notice, that GK the Russian Federation does not contain definition of the public company, and only names it as a kind of the noncommercial unitary organisations.

107 About a freedom of worship and about religious associations: feder. The law Grew. Federations from September, 26th, 1997 N 125-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on September, 19th, 1997: it is approved by Federation Council Feder. Sobr. Dews. Federations on September, 24th, 1997//SZ the Russian Federation, 29.09.1997, N 39, item 4465.

108 See: Bill N 252441-6 «About the public companies in Russian

Federations and about modification of separate acts of the Russian Federation »//

URL: http://asozd2.duma.gov.ru/main.nsf / (Spravka)? OpenAgent&RN=252441-6 (reference date:

19.11.2014)


The Public company can be created for the first time on the basis of the decision of the Government of the Russian Federation or on the basis of the law, and also is reorganised from the joint-stock company which unique participant is the Russian Federation, on the basis of the decision of the Government of the Russian Federation defining an order of such reorganisation.

The kinds of the commercial and noncommercial organisations considered above are managing subjects on sense of the Law on competition protection, their activity (activity of managing subjects) anyhow brings in the income that is one of the bases for antimonopoly regulation of such activity for the purpose of competition protection.

As follows from paragraph 3 ch. 1 item 2 GK the Russian Federation, enterprise activity is the independent activity carried out on the risk directed on regular reception of profit on using by property, sales of the goods, performance of works or rendering of services by the persons registered in this quality in a statutory order.

In difference from enterprise activity, activity of managing subjects is directed not on regular reception of profit, and on income reception. The concept "income" is not legal, but economic which is understood as monetary values or the material assets received by the legal body as a result of its activity for the certain period of time.

It is logical to assume, that the subject of enterprise activity is the businessman, and the subject of economic activities - the managing subject. From here follows, that proceeding from such logic conclusion subjects of different kinds of activity differ from each other a priori. It not absolutely so.

The managing subject - the subject of the competitive right, to it is applied antimonopoly regulation. The persons who are engaged in enterprise activity should be the managing subject. Before introduction in action of "the Third antimonopoly package» and was, however after its introduction as managing subjects began to be considered and the physical persons who have been not registered as individual businessmen, but carrying out the professional work which is bringing in to their the income, on the basis of the state registration and (or) licences, and also owing to membership in the self-adjustable organisation.

Really, before introduction of the specified changes in the concept antimonopoly law «the managing subject» and «the subject of enterprise activity» coincided: as such subjects individual businessmen, the commercial and noncommercial organisations were considered.

Changes in the legislation regarding inclusion in number of managing subjects of physical persons have expanded concept of the basic subject of the competitive right and by that have deduced a parity of the named subjects on new level. Now any subject of enterprise activity is the managing subject, but not any managing subject is the subject of enterprise activity.

Accurate differentiation of the managing subject and the subject of enterprise activity is necessary for an establishment of a professional basis of activity of the named subjects.

The question of qualification of the physical person as subject of competitive relations is debatable.

So, item 5 of item 4 of the Law on competition protection are established criteria which allow to qualify the physical person as the managing subject:

1) the person should not be registered as the individual businessman;

2) the person should be engaged in the professional work directed on reception of the income;

3) the person should be engaged in activity which comes under to the state registration and (or) to licensing, or this person should be a member of the self-adjustable organisation (voluntary or delegated).

Besides, activity of physical persons should be economic. Such benefit is the important criterion as antimonopoly regulation is directed including on struggle against economically harmful activity of managing subjects. And as is known, in struggle for personal benefit probably neglect the public safety.

The approach of qualification of physical persons as managing subjects is not new. Practically all persons recognise those under EU legislation. Such approach is represented true as in the presence of washed away, but at the same time certain criteria there are complexities in law application. For example, the Federal act of the Russian Federation from May, 31st, 2002 N 63-FZ 109 (further under the text - the Law on lawyer activity) it is established, that lawyer activity is the qualified legal aid rendered on a professional basis by persons, received the status of the lawyer in a statutory order, physical and to legal bodies with a view of protection of their rights, freedom and interests, and also providing of access to justice.

109 About lawyer activity and legal profession in the Russian Federation: feder. The law Grew. Federations from 31.05.2002 years N 63-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations 26.04.2002 years: it is approved by Federation Council Feder. Sobr. Dews. Federations of 15.05.2002//SZ the Russian Federation, 10.06.2002, N 23. Item 2102.

Besides, in force ch. 2 items 1 of the named Federal act lawyer activity are not enterprise. From here follows, that lawyer activity is not directed on regular reception of profit and the income.

The income - a gain minus material inputs. The income includes including profit - the part of the gain which have remained after ponesenija of all expenses and expenses.

At realisation of lawyer activity the lawyer renders a legal aid, receiving for it the fee (compensation).

The current legislation the specified concepts do not reveal. Nevertheless, the Civil code of the Russian Federation (a part the fourth) 110 (further under the text-GK the Russian Federation) provides compensation for, for example, free reproduction of soundtracks and audiovisual products to suit the own ends. Such compensation owing to item 1245 GK the Russian Federation has compensatory character.

The fee (from lat.honorarium - compensation for service) by the nature is compensation. Thus, terms "fee" and "compensation" in civil-law understanding are identical. At the same time, a number of positions GK the Russian Federation provides compensation payment. As a rule, these positions regulate relations in intellectual property sphere.

According to item 41 of the Tax code of the Russian Federation (a part the first) 111 income admits an economic gain the monetary or natural form, considered in case of possibility of its estimation and in that measure, in which such benefit it is possible to estimate, and defined according to other positions of the Tax code of the Russian Federation.

Such position, in particular, is item 6 ch. 1 items 208 Tax

112

110 Civil code of the Russian Federation (a part the fourth): feder. The law Grew. Federations from 18.12.2006 years N 230-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations 24.11.2006 years: it is approved by Federation Council Feder. Sobr. Dews. Federations of 08.12.2006//SZ the Russian Federation, 25.12.2006, N 52 (1 ch.), item 5296.

111 Tax code of the Russian Federation (a part the first): feder. The law Grew. Federations from July, 31st, 1998 N 146-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on July, 16th, 1998: it is approved by Federation Council Feder. Sobr. Dews. Federations on July, 17th, 1998//SZ the Russian Federation, 03.08.1998, N 31, item 3824.

112 Tax code of the Russian Federation (a part the second): feder. The law Grew. Federations from 05


The code of the Russian Federation (a part the second) 112, according to which to incomes of sources in

The Russian Federation concerns compensation for performance of the labour or other duties, the performed work, the rendered service, action fulfilment in the Russian Federation.

In the resulted example with reference to lawyer activity it is necessary to pay special attention to compensation for the rendered service and for fulfilment of actions. In many cases at rendering of the qualified legal aid the lawyer concludes with the principal or the client the contract vozmezdnogo rendering of services.

Besides, according to the All-Russian qualifier of services

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(Further under the text - OKUN) among services of legal character the services rendered by legal profession are specified the population also. These services are noted by a code from 091200 to 091214. It is fair to notice, that among problems OKUN there are no tax or any other economic targets.

Thus, on sense of the Tax code of the Russian Federation and essence of a legal aid rendered by the lawyer follows, that lawyer activity nevertheless comes within the purview of antimonopoly regulation, however it is not necessary to hurry up with conclusions.

As follows from the Law on competition protection, for a recognition of the physical person the managing subject it is necessary, that it was engaged in activity bringing in the income on the basis of the state registration and (or) licences.

August, 2000 N 117-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on July, 19th, 2000: it is approved by Federation Council Feder. Sobr. Dews. Federations on July, 26th, 2000//SZ the Russian Federation, 07.08.2000, N

32, item 3340.

113 OK 002-93. The all-Russian qualifier of services to the population: the qualifier: utv. The decision of Gosstandart of the Russian Federation from June, 28th, 1993 N 163: it is entered 01.01.1994//Union of Right Forces "ConsultantPlus"


The law on lawyer activity regulates an order of acquisition of the status of the lawyer. On the basis of item 9 of the named law the status of the lawyer has the right to get the face, which meets special requirements (presence of the higher juridical education or a scientific degree on jurisprudence, presence of the experience of work on a legal speciality etc.), and also handed over a promotion examination on acquisition of the status of the lawyer.

After successful delivery of a promotion examination on acquisition of the status of the lawyer the qualifying commission of lawyer chamber directs the decision on assignment to the person of the status of the lawyer to a territorial administration of the Ministry of Justice where data on the lawyer are brought in the corresponding register and to the lawyer the certificate stands out.

The order of acquisition of the status of the lawyer and entering into the register of data on the lawyer is not the state registration on sense GK the Russian Federation in this connection the lawyer cannot be the managing subject in connection with absence of one of conditions, statutory about competition protection.

Management of Federal antimonopoly service has disagreed with such position on Rostov области.114

114 Decision of Presidium of the Supreme Arbitration Court of the Russian Federation № 9122/13 from December, 3rd, 2013 URL: http://kad.arbitr.ru/PdfDocument/e04be01c-86ef-4b5a-bd99-e074f8554dc0/A53-25904-2012_20131203_Reshenija%20i%20postanovlenija.pdf (reference date: 01.12.2014)

So, the antimonopoly service during check carrying out on a notice of infringement of the Law on protection of a competition by lawyer chamber of the Rostov area (further under the text - APRO) it is established, that Council APRO decision approves the minimum tariff rates of a payment of lawyers for rendering of legal services (help) physical and to legal bodies. By antimonopoly service also it is established, that the specified decision was possible to data of lawyers by its placing on official site APRO. According to antimonopoly body, APRO economic activities coordination at which chambers between lawyers possibility to compete among themselves is limited thereby is carried out. On the basis of stated the antimonopoly service passes the decision from 23.07.2012 about recognition APRO broken the antimonopoly law and the instruction N 565/05 about the termination of infringement of the antimonopoly law is given out from 23.07.2012.

Having disagreed with the decision and the instruction of antimonopoly body, APRO has addressed in Arbitration court. The declared requirements are satisfied by the trial court, as lawyers are not managing subjects and on them antimonopoly regulation in that part in which sees antimonopoly body does not extend. At the same time, lawyers do not pass the state registration on the sense betrayed GK the Russian Federation.

The court of appeal instance has supported a trial court position, and court of court of cassation - positions of courts below.

The presidium of the Supreme Arbitration Court of the Russian Federation also has agreed with decisions (in a broad sense this word) all courts below and has left the decision, the additional decision to it, the decision of appeal instance and the decision of court of cassation without change, and the statement of Management of Federal antimonopoly service on the Rostov area without satisfaction.

As it has been noted in judicial certificates of all vessels considering case, lawyer activity does not come under to the state registration, therefore the lawyer cannot be considered as the managing subject and cannot be the subject of antimonopoly regulation.

The considered case is unique and case as it has been begun in transition of positions of the Law on competition protection in a new way and it resolves legal uncertainty concerning reference of lawyers to managing subjects.

At the same time, in the considered example vessels repeatedly marked, as activity of the lawyer does not concern the activity which is bringing in the income. Besides, in some cases lawyers render a professional legal aid gratuitously, that is give possibility to citizens to take advantage svoimkonstitutsionnym of the right to a free legal aid. From here and constitutional napolnitel lawyer activity.

Thus, the lawyer is not the managing subject on sense of the domestic legislation, as: 1) its activity is not directed on profit and income extraction; 2) its activity does not come under to the state registration.

The disputable positions considered in the present work concerning qualification of the lawyer as the managing subject are key.

At the same time, when dispute on qualification of the lawyer as the subject of antimonopoly regulation is resolved by the higher degree of jurisdiction, between scientists-jurists of discussion do not cease.

For example, the collective in «Comments to« the Third antimonopoly package »notices by the author, that« at a working out stage of "the Third antimonopoly package» separate experts fears concerning distribution on lawyers of norms of the Law on competition protection referring to special (public) function of legal profession »» [1] expressed. However authors call into question the put arguments as not supported with explanations of the expressed experts, how antimonopoly requirements will interfere with lawyers to render statutory about lawyer activity the qualified legal aid.

I believe the given point of view of the pertinent. Really, the competition between lawyers should lead to improvement of quality of a rendered legal aid under the elementary law of logic. For this reason in draught federal law N 576274-5 [2] first editions bylopredlozheno as the managing subject to qualify the lawyer, carrying out lawyer activity in a lawyer office, however later such formulation has been changed and finally the lawyer is at all deduced from sphere of operation of law about competition protection. For what reason it was offered to qualify as the managing subject of the lawyer who has founded a lawyer office, by authors of the bill it is not explained.

«The fourth antimonopoly package» [3] which at the moment of a writing of the present work is on consideration in the State Duma, also has not solved this teoretiko-practical dispute. As we can see from the text of the bill, any changes in a part of definition of the managing subject is not planned.

Concept expansion «the managing subject» by analogy to EU legislation where by the managing subject any person without dependence from its legal status except for some persons can be recognised can be the possible legislative decision of a problem of qualification of the lawyer as the managing subject.

By analogy to lawyer activity activity of notaries according to Fundamentals of legislation of the Russian Federation about

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Notariate (further under the text - Bases) [4] is not enterprise, however owing to the law notaries make notarial actions, that from the point of view of the Tax code of the Russian Federation is considered as income reception.

Thus, activity of lawyers and notaries is not considered as identical from the point of view of antimonopoly regulation: fulfilment of [notarial] actions as the activity which is bringing in the income, is directly fixed in the law, and lawyer activity as the activity which is bringing in the income, follows from a being of the activity and is only indirectly mentioned in the Tax code.

For this reason now the lawyer is not considered as the managing subject whereas antimonopoly regulation concerning activity of notary FAS actively applies. [5] at the same time, earlier it was offered to consider as the managing subject of the lawyer who has founded a lawyer office, however and this idea have refused.

Besides, one of the reasons on which professional work of some physical persons should not be considered as enterprise, it is public functions of professional work. [6]

At realisation of the activity physical persons who can be managing subjects, besides other should possess and certain professionalism. For this reason special federal acts establish a number of requirements to which there should correspond addressees of the specified laws (higher education presence, promotion examination passage, annual improvement of professional skill, indemnity against liability etc.).

Professional requirements are shown not only to managing subjects - to physical persons.

So, in economic activities individual businessmen, the commercial and noncommercial organisations can be engaged. Thus managing subjects can have any organisation-legal form provided by the civil legislation. The law establishes also requirements to quantitative structure of some managing subjects. More in detail about it it is considered in the beginning of the present paragraph.

Thus, the managing subject cannot appear in a plane, say, one commodity market and be engaged in economic activities, not being guided on what. For example, in some cases reception of the preliminary consent of antimonopoly body about creation and reorganisation of the commercial organisation (item 27 of the Law on competition protection) is necessary for managing subjects; some transactions of managing subjects come under to the state control (item 26.1 of the Law on competition protection) etc.

As the special managing subject the Law on competition protection the leasing company (other financial organisation, the financial organisation, not podnadzornaja to the Central bank of the Russian Federation) allocates the financial organisation which is understood as the managing subject rendering financial services - the credit organisation, the professional participant of a securities market, the organizer of trade, the clearing organisation, the microfinancial organisation, credit consumer co-operative society, the insurance organisation, the insurace broker, fund association, not state pension fund, the operating company of investment funds, share investment funds, not state pension funds, the specialised depositary of investment funds, share investment funds, not state pension funds, a pawnshop (the financial organisation, podnadzornaja to the Central bank of the Russian Federation).

Basically all specified in the Law on competition protection the financial organisations are commercial the financial organisations: credit, insurance etc., however them can be and некоммерческие:кредитный consumer co-operative society, fund association, not state pension fund and so forth [7]

As it is fairly noted by V.F.Popondopulo and D.A.Petrov, possibility both commercial, and noncommercial is main

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The financial organisation to influence competition conditions. [8]

Really, regulation of activity of managing subjects

It is directed first of all on competition protection, on its development, on protection

The consumer. The kind of the financial organisation does not represent such interest

For antimonopoly regulation.

Unlike the managing subjects specified in positions GK

The Russian Federation, the financial organisations directly are not specified in separate standard -

Legal acts. Activity of each of them is regulated by the separate

(Personal) laws.

Further principal views of the financial organisations will be considered,

Most often meeting at antimonopoly regulation

Agreements of managing subjects and at infringement of the antimonopoly

Legislations.

According to the Federal act of the Russian Federation from December, 2nd, 1990 N 395­123

1, the credit organisation is understood as the legal body who for profit extraction as a main objective of the activity on the basis of the special permission (licence) of the Central bank of the Russian Federation has the right to carry out bank operations. The credit organisation can be formed on any pattern of ownership as an economic society.

123 About banks and bank activity: feder. The law Grew. Federations from December, 2nd, 1990 N 395-1//SZ the Russian Federation, 05.02.1996, N 6, item 492.

The most widespread infringement of the antimonopoly law by the credit organisation is imposing to the counterpart of unprofitable treaty provisions or the conditions which are not concerning a subject the contract.

For example, by the award of the Rostov area from July, 26th 2013 on business № А53-2903/13 in satisfaction of requirements of Open Society «Savings Bank of Russia» about a recognition of decision UFAS on the Rostov area from 23.11.2012 and the instruction № 840 from 20.11.2012 on business 1665/05 it is given up. By court it is established, that Open Society «Savings Bank of Russia» is the managing subject occupying a leading position. During realisation of the activity of Open Society «Savings Bank of Russia» has broken item 3 ch. 1 items 10 of the Law on protection of a competition by imposing to the borrower (counterpart) of unprofitable treaty provisions and not provided by the current legislation of the Russian Federation of freedom restriction in a choice of a way of repayment of the credit that was in turn expressed in actions (bezdejstvijah) on inclusion in forms of typical contracts of crediting of the physical persons offered for the conclusion in territory of the Rostov area, the conditions providing a unique way of repayment (payment) of the credit -

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annuitetnymi (equal) payments. [9]

The professional participant of a securities market who are engaged

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Broker activity, the broker is called. [10]

The economic society can be the organizer of trade only.

The organizer of trade has not the right to be engaged in industrial, trading and insurance activity, activity of the credit organisations, activity on conducting the register of owners of securities, activity on management joint-stock investment funds, share investment funds and not state pension funds, activity of specialised depositaries of investment funds, share investment funds and not state pension funds, activity aktsionernyhinvestitsionnyh funds, activity of not state pension funds on a provision of pensions and pension insurance.

The basic regulatory legal act regulating activity of organizers of the auctions, the Federal act of the Russian Federation from November, 21st, 2011 Ш25-ФЗ «About the organised auctions» is. [11]

The clearing organisation - the legal body, having the right to carry out clearing activity on the basis of the licence for realisation of clearing activity. [12]

The clearing organisation or the person who is carrying out functions of the central counterpart, the economic society created according to the legislation of the Russian Federation can be only. The specified organisations have not the right to transfer power of an individual executive office to other person (to the managing director, the operating organisation). [13]

The microfinancial organisation - the legal body registered in the form of fund, the independent noncommercial organisation, establishment (except for state establishment), noncommercial partnership, an economic society or the association, carrying out microfinancial activity and brought in the state register of the microfinancial organisations in an order, statutory. [14]

Credit consumer co-operative society - voluntary association physical and (or) legal bodies on the basis of membership and territorial, professional and (or) to other principle with a view of satisfaction of financial requirements of members of credit co-operative society

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(Shareholders). [15]

The credit consumer co-operative society happens two kinds: credit consumer co-operative society of citizens - the consumer co-operative society citizens can be which members only, and credit consumer co-operative society of the second level - the co-operative society which members are only credit co-operative societies.

Not state pension fund - the organisation which exclusive activity is not state provision of pensions, including a preschedule not state provision of pensions, and obligatory pension insurance. Such activity is carried out by fund on the basis of the licence for realisation

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Activity on a provision of pensions and pension insurance. [16]

Pawnshop the legal body - the specialised commercial organisation which principal views of activity is granting of short-term loans to citizens and storage admits

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Things.

132 About pawnshops: feder. The law Grew. Federations from July, 19th, 2007 N 196-FZ: it is accepted gos. Duma Feder. Sobr. Dews. Federations on June, 29th, 2007: it is approved by Federation Council Feder. Sobr. Dews. Federations on July, 6th, 2007//SZ the Russian Federation, 30.07.2007, N 31, item 3992.

Specificity of a legal status considered above the financial organisations as managing subjects consists in special limitations and the interdictions which are established only for such organisations and not extending on other managing subjects, in a special order of an establishment of their leading position, and also in the special criteria applied at control

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Economic concentration with participation of the financial organisations.

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A source: Guterman Alexander Evgenevich. Antimonopoly regulation of agreements of managing subjects under the legislation of the Russian Federation. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015. 2015

More on topic § 1. Subject structure in agreements of managing subjects.:

  1. CHAPTER 2. Subject structure of agreements managing Subjects as the basis of application of a mode antimonopoly Regulations.
  2. §1. Kinds of agreements between not competing managing Subjects
  3. §2. The is conditional-forbidden conditions of agreements managing Subjects
  4. §3. An admissibility of agreements of managing subjects.
  5. CHAPTER 3. AGREEMENTS BETWEEN NOT COMPETING MANAGING SUBJECTS. ILLEGAL COORDINATION
  6. CHAPTER 3. Antimonopoly content requirements of agreements Managing subjects.
  7. Guterman Alexander Evgenevich. Antimonopoly regulation of agreements of managing subjects under the legislation of the Russian Federation. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015, 2015
  8. § 3. The Group of persons as the special managing subject.
  9. 5.1. Operational audit of an external environment of the managing subject
  10. § 2. An accessory of managing subjects to the certain market as the basis of application of measures of the antimonopoly Regulations.
  11. § 2.2. A technique of carrying out of administrative controls of the legislation on a waste in local governments, territorial departments of Managements Rospotrebnadzora on subjects of the Russian Federation, managing subjects