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§1. Approaches to understanding of the corporate right of the Russian Federation: a general characteristic.

Attempt to comprehend and classify available approaches to understanding of a problem of the corporate right leads us to necessity of the analysis of a corresponding complex of the legal phenomena which are covered today by the given collective term.

Nevertheless, an occasion to conversation on a new element of the legal system always is presence of circumstances of a double sort: first, social and economic (for example, change institutsionalnoj society structures, etc.), secondly, circumstances of the legal validity (for example, changes in the legislation etc.). Whether we can speak about such circumstances with reference to a theme of our research?

The known events which have occurred in our country on a boundary of 90th years of the last century, have changed principles of functioning of domestic economy, have caused splash in economic activity of citizens and their associations. As a result of such transformations, by privatisation, the new form of conducting enterprise activity – joint-stock company has been offered a society. Following the results of mass privatisation of 70 % of industrial potential of Russia has passed in a private property. By June, 1st, 1994 it has been created 12 thousand joint-stock companies, about 40 million Russians became shareholders. [1] thanks to it, the joint-stock form "is doomed" and to remain today one of dominating forms of conducting enterprise activity. As of 2003 in Russia was more than 400 thousand various joint-stock companies. [2] so considerable changes institutsionalnoj have society structures for a capitalist society under construction in Russia not tactical or a temporality. Even in rapid development of joint-stock movement in the XIX-th century K.Marx, establishing gradual transformation of the industry into the joint-stock enterprises, noticed, that "the ordinary individual firm more and more becomes only the preliminary step preparing the enterprise by that moment when it will be great enough that on its basis" to found "joint-stock company." [3] thus, "popularity" of joint-stock companies is caused not only momentary circumstances of political and economic character, but also immanent qualities of this form of enterprise activity. Such conclusion, proves to be true and the experience of historical research saved up by a modern science. [4]

At the same time, joint-stock company - though also the leader, but only one of versions of corporations: today this concept covers the broadest circle of collective formations. Corporate forms, prevailing among other organisation-legal forms of conducting enterprise activity, began to represent real economic, political and social force. Essential transformation institutsionalnoj the society structures, creating social and economic preconditions for more careful theoretical studying of the above-stated phenomena is available.

Certain changes occur and in external forms of legal regulation of corresponding relations, especially regarding isolation of those rules of law which fix a legal status of corporations. With reference to a theme of our research, it is necessary to pay attention to qualitative and quantitative legislative changes. Attracts attention the following fact. Basically, the legislation defining an order of creation, activity of corporations, an order and forms of mutual relations of participants among themselves and corporation as a whole has developed rather for a long time.

So, as the legal base here has acted, certainly, the Civil code of the Russian Federation installed since January, 1st, 2005 On the basis of data kodifitsirovannogo of the normative act have been accepted a number of special laws: the Federal act from December, 26th, 1995 N 208-FZ "On joint-stock companies", the Federal act from February, 8th, 1998 N 14-FZ "About societies with limited liability", the Federal act from March, 5th, 1999 N 46-FZ "About protection of the rights and legitimate interests of investors on a securities market", the Federal act from July, 21st, 1997 N 123-FZ "About privatisation of the state-owned property and about bases of privatisation of municipal property in the Russian Federation" and some other. On the basis of the given certificates there was a system of departmental sources. Set of the above-stated legal acts in view of their relative extensiveness and more and more standing apart subject of regulation, leads many researchers to a conclusion about occurrence in the Russian legislation of independent branch. But anyhow, the standard base of the investigated legal phenomenon for a long time it is possible to recognise - in general - generated. At the same time, the question on origin and development of a new legal generality – the corporate right – became a subject of serious scientific discussion only recently. Whether it means, that the impulse to development of the given legal branch has been given by the phenomena, first of all, nepravovogo.

Owing to the conventional unity and interconditionality of the legal system and legislation system, detection of signs of branch differentiation in the legislation, creates preconditions for the analysis of character of corresponding structural changes in the legal system. In this connection, S.S.Alexey writes: "… owing to unity of internal and external forms the in itself fact of presence of the developed area of the legislation is the reliable certificate of existence of certain features in the maintenance of legal regulation and, hence, features in right structure." [5] Taking into account told, whether there is a sense in our case to speak about corresponding structural changes of the right? Whether the above-stated isolation by respective alterations of the maintenance of legal structure is caused and, hence, testifies to occurrence in its frameworks of the new element, a new generality of rules of law; or it is caused by subjective factors, for example, practical requirements of the legislator for configuration of a standard material? In the latter case, removal of corresponding legal rules for limits kodifitsirovannogo in the form of independent regulatory legal acts yet does not speak the certificate (the Civil code of the Russian Federation) about specificity of the given area of legal regulation. Also there will be no bases to declare originality of sphere of legal influence of such certificates, and to speak about occurrence as a part of a subject of the grazhdansko-right regulation of a certain new, independent legal generality.

The pluralism of opinions concerning definition of the public relations arising concerning corporations and with their participation, a legal status of subjects of the last, reguljativnyh features of such relations, essence of the corporation does especially interesting consideration of the reasons of the above-stated legislative isolation with theoretical, instead of the branch point of view. Consideration from a position of theory of law, allows to provide integrated approach, high degree of abstraction, independence of problems of branch character and helps to come nearer to deeper understanding of the specified phenomena. For this reason, investigating the corporate right as a whole, we, it appears, can find answers and to the private put questions, as the legal phenomena specified above (corporation, corporate relations and their participants, etc.) Are elements of the maintenance of the given legal phenomenon. What are possible approaches to definition of the corporate right of the Russian Federation, finding-out of its place and a role in system of the legal phenomena?

Not the secret, that any research begins with definition of a direction of studying of a problem, a formulation of a vector of its analysis, and a methodological foreshortening of consideration. But before definition actually approaches to understanding of the corporate right, it would be desirable to be reserved about one important aspect which is defining in the further research. As a rule, the problem of a theoretical substantiation of those or other branches is reduced to a substantiation of, whether is this or that legal generality branch or podotraslju or institute (proceeding from a qualitative originality of adjustable relations and an originality of applied methods). The problem of the corporate right is represented to more many-sided as assumes polemic not only concerning a place of the last in the legal system, but also definition of, whether is it in general the legal phenomenon or not.

Certain uniqueness of an investigated question that the sphere of corporate (local) regulation is an independent sphere of social rationing which exists along with the jural sphere, not substituting, and developing and supplementing it. In modern conditions the area of local regulation began to play more significant role. More and more questions it is assigned to corporations, bodies of a corporate governance by them. Thus, the border between local and rules of law becomes more and more washed away. [6] sometimes at all at once it is clear, whether is this or that rule behaviour the local norm based on the provisional rule of the right or actually local norm.

So, from the point of view of teoretiko-legal positions, it is obviously possible to allocate following logically possible approaches to understanding of the corporate right of the Russian Federation:

- It is a new element of system of the Russian right, i.e. it is the certain legal generality generated presumably in the form of branch of law, in view of specificity of legal regulation of public relations with participation and concerning corporations, and organically entered in system of the Russian right.

- This not legal, is more exact "vnepravovoe" the phenomenon. In this value the corporate right represents area of social rationing of local level (level of the organisation, the enterprise, association, etc., possessing corporation signs). "Right" it, in our opinion, is called because is set of corporate norms which though do not concern rules of law, but, being a version of norms social, have certain similarity with corresponding legal obshchnostjami, caused by their general social "roots" (a defined subject of regulation, influence receptions on corresponding public relations and their participants etc.).

- This certain two-level phenomenon which on the one hand represents the certain body of legal rules, public relations regulating a specific kind, and on this basis being an element of legal structure. And on the other hand, it is set of corporate norms, local level of social regulation.

Certainly, each of the formulated approaches requires comments.

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A source: Volnjansky Denis Anatolevich. THEORETICAL PROBLEMS of the CORPORATE RIGHT of the Russian Federation. The dissertation on competition of a scientific degree of the master of laws. Omsk. -200

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