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§ 1. Concept of economic societies with the state participation and features of their civil legal capacity

1. The civil legal capacity of economic societies with the state participation causes some questions as the general, and a private order. The general, undoubtedly, the question on a kind of the legal capacity of economic societies with the state participation and about is, whether it has any differences from the legal capacity of usual economic societies [104].

In the literature it is possible to meet judgements that the legal capacity of economic societies with the state participation possesses (or, at least, should possess) differences from the legal capacity of other economic societies. So, E.A.Sukhanov specifies, that state ownership use even at its involving in the civil circulation assumes following mainly public, instead of to private interests. Therefore the civil-law statehood, its bodies and the legal bodies created by it inevitably should differ essential specificity, but at the same time to be accurate and clear for all other participants of private-law relations »[105].

A little bit further goes And. V.Vinnitsky whom in the work «the Public property» writes: «the Legal status of joint-stock companies with public participation possesses a number of features.... The finding of actions in the public property should guarantee, that the corresponding organisations will be engaged in concrete publicly significant activity (activity obshcheekonomicheskogo values), and definitely» [106]. Taking of such position, the author, nevertheless, does not recognise their legal capacity special.

In S.A.Ispravnikovym's civil literature the point of view about argumentativeness of reference of joint-stock companies with 100 %-s' participation of the state to number of the commercial organisations, and, hence, to number of the organisations with the general legal capacity is put forward. So, comparing the unitary enterprises and joint-stock companies from 100 % the state participation, he notices, that both of them «considerably differ from other participants of commercial activity and are the commercial organisations purely formally» [107].

Along with it in a science the opinion on special franchise of societies with state participation is expressed. So, special franchise of the state holding (basic) companies defends D. V.Davidov whereas the named economic societies are created for the purpose of performance of the state functions [108].

N.E.Kantor sees special franchise at the joint-stock companies created as privatisation of the unitary enterprises. Confirming to this opinion she refers to item 37 of the Law on the privatisation which point 3 in operating edition provides without fail necessity of fastening for the charter of these organisations of the purpose and a subject of their activity. In its opinion, absence of special franchise of the legal bodies having in the capital a share of public formations, causes the greatest problems at creation of the effective mechanism of management by actions (shares) of such organisations as activity of the legal bodies having the general legal capacity, on the one hand, fatally affects enterprise success of the private companies operating on a similar commodity market, and on the other hand, quite often mismatches achievement of the purposes of the state on management of a state ownership and protection of its interests.

And further: « Modern lines of creation of legal bodies on the basis of the state-owned property predetermine necessity of inclusion for legal system of the legislation of the Russian Federation of the separate block of the rules of law regulating principles of their creation and activity, feature of a corporate governance. Activity of such companies should be under construction on the basis of special franchise... »— she concludes [109].

We find the certificate of investment of the state societies special franchise at M.I.Kulagin with reference to the foreign right. In the work which has become by classics of civil thought, he notices, that unlike private legal bodies, in charters of the state corporations the activity subject is defined rather accurately. Special franchise of the state societies follows from the licensing of their occurrence and is dictated, in addition, by anxiety of a private sector because of a possible competition of the state association if with all definiteness borders of its activity are not outlined. In laws on corporations by which the state corporations in Canada are founded, not only their purposes are specified, but also those actions which they have the right sovershatv are listed. The conclusion is put by such corporations of transactions in некоторвіх cases under a direct game - trolv pravitelvstva [110 [111].

To practice of the European states «the specialisation principle», generated zakonodatelvstvom about a competition also is known. Nevertheless, follows priznatv, that sometimes this principle is interpreted in this or that party. So, in France concerning the company «Elektrisite de France» бвіло the rule according to which its expansion dejatelvnosti, «with one storonn і, бвіло from the technical and commercial points of view normalvnvsh addition уставнвіх the purposes, and with another - answered« common interests »is provided, brought direct polvzu to public establishment». Analo - gichnym in the image, in некоторвіх the earths of Germany operate специалвнвіе zakonn і, defining the status the statesman of the enterprises. Investment with such status has tselvju ogranichitv dejatelvnostv подобнвіх the enterprises frameworks порученнвіх it of problems [112].

Описаннвіе vvine подходві to the legal capacity the business executive of societies with state participation показвівают, that when is offered it is alvnyj character, it обосноввівается the following before on спілками:

- Target pravosposobnostvju the state;

- Publicly znachimvshi the purposes, pres l meal ємні mi the state at establishment the business executive of societies;

- tselevvsh character of public property on which basis are created corresponding хозяйственнвіе societies;

- Necessity of maintenance of a competition and restriction of the state business, etc.

The listed reasons, certainly, bribe to a recognition of special franchise of the economic societies based on the state capital. Special franchise, undoubtedly, could become the optimum decision for some economic societies based on the state participation. At the same time, there are no obstacles to "self-restriction" by a society of own legal capacity by an establishment of the purposes of the activity definitely limited in its constituent instruments (item 173 GK the Russian Federation) [113].

Whether but the general conclusion about desirability of a recognition of special franchise of economic societies how it is offered by N.E.Kantor and some other authors follows from this?

It is thought, that for this purpose there are no good causes. First, special franchise in any way does not follow from the current legislation. Really, in item 37 item 3, item 3 of item 39 of the Law on privatisation it is underlined, that in charters of economic societies should be accurately defined a subject and the purposes of their activity. And it is clear: public interests demand that the state ownership was used for the designated purpose. Thereby performance of those problems which the state puts before the corresponding organisations is provided. But the requirement of accurate definition of a subject and the purposes dejatelnostej not same, as a special franchise establishment. As is known, item 49 GK the Russian Federation defines the legal capacity as possibility to have the civil rights and to perform the civil duties necessary for realisation of any kinds dejatelvnosti, not запрещеннвіх the law. So in the Code the general is formulated pravosposobnostv. As to the Law on privatisation, no less than laws about отделвнвіх kinds the business executive of societies there there are no norms, которвіе would recede from this position. Similarly, in these laws there are no positions that the state societies can imetv littt the civil rights corresponding to the purposes dejatelvnosti and to bear connected with this dejatelvnostvju duties. Sledovatelvno, the law in force does not limit to their recognition spetsialvnogo character of the legal capacity.

Secondly, the general pravosposobnostv economic societies with the state participation proves to be true realvnym a state of affairs. So, item 2.3 of the typical charter of a society with limited otvetstvennostvju with participation of the Russian Federation provides, that such society can imetv the civil rights and perform the civil duties necessary for realisation of any kinds dejatelvnosti, not forbidden zakonodatelvstvom the Russian Federation [114]. The general Is available pravosposobnostv economic societies with state participation.

Further, charters of many societies created by the state, also provide the general pravosposobnostv. For example, charters of such joint-stock companies as «Consolidated aviastroitelvnaja corporation» and «Incorporated ship-building corporation» provide enough wide range of kinds of activity in which these persons can be engaged. Moreover, in these charters and other economic societies it is especially underlined, that by other kinds of the activity which has been not named in the text of the charter, but not forbidden by the law, these societies also have the right to be engaged [115].

It is impossible to name such state of affairs casual. It is necessary to notice, that at all specificity of economic societies with the state participation, they continue to remain the commercial corporate organisations, which purpose - profit extraction. And any enterprise activity means known degree of "flexibility", manoeuvrability. Pledge of success of the commercial organisation consists in granting to it of full freedom, absence of the artificial restrictions interfering this or that activity. And the economic societies created on the state beginnings, do not constitute an exception.

In particular it concerns joint-stock companies which to a thicket are used in the mechanism of the state business. The joint-stock form of commercial corporation personifies classical representations about the legal body, saved up throughout development of all civil law. Evolution of this institute shows that struggle, result (and achievement) which became the general legal capacity of joint-stock companies. Not the secret, that in all the right the usages knowing the joint-stock form of commercial activity, admits the general legal capacity of corresponding associations [116].

Therefore special franchise concerning the state economic societies contradicts the design of joint-stock company. Such rule would lead vyholashchivaniju the idea of joint-stock company, would deprive of its those possibilities which are given to the businessman by the general legal capacity.

Thirdly, it is impossible to forget that today the Russian civil legislation keeps the special form of the legal person with special franchise - the unitary enterprises. These organisations, in a counterbalance to economic societies, possess special franchise. From this follows, that the special franchise established as the general rule, finally, does senseless use of a design of an economic society with a view of the state business.

Fourthly, a question on reference of economic societies from a state fate - I eat to legal bodies of the general or to special franchise should dare taking into account their corporate device. It means, that citizens and legal bodies can be participants of corporation along with the state. And if for societies with 100 %-s' state participation special franchise can be justified, in the mixed societies such position unreasonably limits interests of participants of corporation which, as a rule, are interested in extraction of the greatest profit. C these positions the general legal capacity also is preferable to societies with the state capital.

C the account of it, it is necessary to recognise insolvent the offer of researchers to allocate economic societies with state participation by special franchise. We will repeat, that the general rule about the general legal capacity is fair and for economic societies with the state participation. It, however, does not exclude possibility of application of other general rule - about an admissibility of definition of the legal capacity of the legal person «the purposes of activity definitely limited» in its constituent instruments (item 173 GK the Russian Federation).

2. Some questions are caused by the legal capacity of the economic societies which have arisen by transformation of the state unitary enterprises. It is quite obvious, that here the legal capacity from special is transformed to the general from the moment of the state registration of respective alterations in the register and in constituent instruments.

Practical disputes causes, in particular, legal sudvba licences and permissions which the unitary enterprise before reorganisation in an economic society possessed. Not a secret, that many унитарнвіе the enterprises ввіступают carriers of the rights, предоставляемвіх the licence. In such cases licence presence represents special tsennostv. In this occasion and. 2.1 items 39 of the Law on privatisation указвівает, that созданнвіе by privatisation the business executive of a society have the right osushchestvljatv the kinds provided by their charters dejatelvnosti on the basis of licences and инвіх razre - ШИТЄЛВНВІХ documents, ввіданнвіх corresponding state or munitsipalvnomu to the unitary enterprise. Therefore the resulted norm should tolkovatvsja as resolving vnovv to the formed economic society zanimatvsja litsenziruemvsh a kind dejatelvnosti on the basis of the licence, ввіданной to its assignee.

At the same time in arbitration practice errors, связаннвіе with application of the specified norm take place. Open Society "Костромареставрация", formed in rezulvtate privatisations of the regional unitary enterprise бвіло is given up in participation in competition on the contracting right on vypolne - nie is repair-restavratsionnv_h works in view of absence of the corresponding licence. The antimonopoly body, and also the arbitration courts considering dispute have come to conclusion about legitimacy of refusal in participation in competition. The society referred to the licence received before its assignee. Courts have specified, that as in statutory about licensing term the Society has not addressed in licensing body with the statement for licence renewal for date of giving of the corresponding application form for participation in Open Society "Костромареставрация" competition have not the right was to carry out a licensed kind of activity [117].

Judicial certificates on this business see erroneous in a following kind. It is known, that at the universal succession to the assignee pass all rights and duties of its predecessor as a unit. At - menitelvno to sudvbe licences the Federal act from 04.05.2011 № 99-FZ «About licensing of separate kinds of activity» in withdrawal from the general rule about licence cancellation at the termination of the legal person provides possibility of renewal of the licence specially for cases of reorganisation in the form of transformation. Thus, as follows from the law, transformation of the legal person is not the basis for stay or the licence termination. It once again allocates transformation among other forms of reorganisation, both with doktrinalnoj, and from the applied point of view. At last, ch. 2 items 18 of the named law as the general rule suppose to the assignee of the licensee before permission renewal to carry out a licensed kind of activity.

In the light of stated, ch. It is necessary to interpret 2.1 items 39 of the Law on privatisation as supposing realisation by the assignee - an economic society of licensed kinds of activity on the basis of the licence which have been given out to earlier existing unitary enterprise before its renewal. This approach answers as the essence of transformation - one of forms of reorganisation of the legal person, and the modern policy of civil law, including, in the field of contest of transactions. We will notice, that, of course, this conclusion does not concern cases, when the law connects licensing only with concrete organizational-right you mi forms of legal bodies (for example, licences for realisation of the bank operations, given out to the credit organisations) [118].

3. C the legal personality of the legal person closely connects a question on bodies of its management as they realise the organisation legal capacity. In this sense economic societies with the state participation hardly can possess any essential differences. Undoubtedly, certain specificity is present at standard regulation of the relations connected with formation of controls the statesman the business executive of societies, but, as a rule, it is reached or at the expense of other branches of law (administrative, labour), or at the expense of corporate normotvorchestva in the organisations.

So, bolvshajachasti pravovik the norms devoted to questions of management in the business executive societies with state participation reflects the is administrative-legal approach of regulation the public man of relations. In this connection arising zdesv relations can regulirovatvsja as civil, and a hell ministrat willows of niches the right [119].

Dejstvitelvno, management in an economic society where edinstven - HBiM the shareholder (participant) ввіступает public formation, occurs mainly on the administrative beginnings, without application from - vestnyh the korporativno-right vik procedures. So business with «the companies of one person», for example, is. Provided by laws процедурні preparations and carrying out of general meeting of shareholders, general meeting of participants of a society are not applied, powers внісшего society controls are carried out gosudarstvennvsh by body etc.

In civil law for a long time obrashchalosv attention to the general lines between ak - tsionernvshi societies with 100 %-нвш gosudarstvennvsh participation and uni - the tare enterprise. So, основвіваясв on certificates Soviet zakonodatelv - stva, the academician And. V.Venediktov wrote: «... Legal nature the statesman of joint-stock companies ввірисоввівается with full jasnostvju: despite the joint-stock form, they должнві бвітв postavlenn і, not tolv - to on the sotsialvnoj to the nature, but also as organizational type, near to trusts and syndicates, instead of near to chastivshi or the societies mixed shareholder - HBiMH. And further:« Features of the "corporate" nature of the state joint-stock company... Have either minor, or purely technical value and cannot black out its valid nature of economic body of the state »[120].

In the modern literature in affinity of economic societies with 100 %-s' state participation and the unitary enterprises specify A.A.Ivanov [121 [122], And. V.Vinnitsky. Thus we will underline, that both authors talk goes not about affinity of their civil legal personality, and about affinity from the point of view of management of them.

These and many other things examples testify that the legal relations connected with management by economic societies as well as questions of management of a state ownership constitute a subject of regulation both private, and the public law [123].

Civil-law norms also establish some features of formation of controls by joint-stock companies. In general it is necessary to notice, that public formations, as a rule, are extremely interested in questions of formation of controls of economic societies as possibility of carrying out of this or that policy and realisation of the public purposes depends on it.

As the state, being the collective subject, differently as through other persons cannot operate, there is a question on representatives of the state at its participation in corporate relations. At the same time, the civil legislation knows some kinds of representatives of the state at its participation in economic societies:

1) representatives of the state as shareholder on general meeting of shareholders (participants) of a society;

2) representatives of the state in board of directors (nabljudatelvnom council);

3) representatives of the state in a society revision committee.

Naibolvshy interest from the scientific and practical point of view ввізвівает

predstavitelvstvo the states in joint-stock company board of directors. Speech, first of all, goes about formation of board of directors (nabljudatelv - nogo council) joint-stock company with the state capital. Bo - перввіх, the law admits objazatelvnostv board of directors as that for акционернвіх societies, созданнвіх as privatisation (ch. 5 items 37 of the Law on privatisation). Во-вторвіх, it is known, that in societies, where operates spetsialvnoe the right («the gold action»), the state has the right delegirovatv the representative in structure of board of directors. Specified predstavitelv, javljajasv a member of council, possesses all necessary rights of a member of council, and also the additional rights which are given the by «the gold action».

The question on board of directors in economic societies with state participation is actively enough discussed both in legal, and in the economic literature - basically in a context of discussion of a corporate governance [124]. C positions of modern civil-law regulation the most actual is the question on an order of formation of board of directors in joint-stock companies with state participation. As it is represented, the specified problem can be shown to two practically significant aspects:

1) the requirements shown to members of board of directors;

2) an order of appointment (election) of members of board of directors.

Foreign both domestic practice of a corporate governance and corresponding researches it is distinct enough ввіявляют the basic problem of a corporate governance акционернвіх societies with state participation - personalvnoe filling of board of directors and demands made to its members. In particular, one of the parties of this problem - acceptabilities of membership in boards of directors of civil servants. Available Russian and foreign experience доказвівает insufficient efficiency of activity of state employees as members of boards of directors. Among the reasons of it it is possible to name excessive bjurokratizatsiju, interfering normal work of board of directors, employment of state employees in the basic place of work, a lack at them necessary qualification for work in board of directors, absence of interest, or, on the contrary, mercenary (corruption) interests, etc. C other party, institutes of independent directors and professional attorneys are received by more and more wide application.

In connection with noted circumstances many modern the right - usages refuse practice of attraction of state employees to work in boards of directors of joint-stock companies. As practice shows, the question can have various ways of the decision:

1) occurrence of civil servants in board of directors (the Netherlands, Norway, Denmark, South Korea) is not supposed;

2) the share of civil servants is defined proportionally to a state dale in the company share capital;

3) the quantity of state employees in board of directors constitutes the fixed share from total of members of council (Germany, France, Mexico) [125].

In Russia now the law occupies liberalvnuju a position from - nositelvno the one who can ввіступатв the representative of the state in board of directors [126 [127]. Ispolvzuemaja in ch. 2 items 38 of the Law on privatisation the formulation "can" says that the representative of the state can бвітв both the state employee, and other person. So, the representative can бвітв:

1) государственнвій (муниципалвнвій) the employee;

2) профессионалвнвій повереннвій;

3) независимвій the director.

And zdesv the tendency of gradual refusal of combination by the representative state службві and memberships in board of directors, nevertheless, is observed. In many respects it is connected with commissions of the then President of Russia D.A.Medvedev «initsiirovatv acceptance on shareholder meetings of decisions on an exception of structure of boards of directors акционернвіх societies with gosudarstvennvsh participation of vice-presidents Pravitelv - stva the Russian Federation, федералвнвіх ministers, heads инвіх федералвнвіх bodies ispolnitelvnoj the power and the persons who are a part of Administration of the President of the Russian Federation and others the statesman of employees and inclusion instead of them независимвіх directors or is believed - HBIX directors etc.» [128].

Corporate practice of many крупнвіх the companies in this connection shows postepennvsh refusal of attraction of state employees as members of board of directors. As "Savings Bank" and «Dews - neftv» is provided by charters of such societies, that независимвіх directors should бвітв not less than 1/3 from total of members of council. Thus the applicant for membership in board of directors cannot schitatvsja nezavisimvsh if for it is available «communications with the state» [129]. The conclusion From here follows, that in названнвіх societies the share of state employees cannot prevvnnatv 1/3.

This tendency follows otsenivatv as positive, and its introduction should be paid compliments, poskolvku tolvko professional and a computer - tentnyj the board of directors is capable obespechitv management of a society. At the same time, uchshyvaja strategic value and importance of many the statesman the business executive of societies, becomes clear necessity of presence for their boards of directors the statesman of employees. C another storonn і, the full exception of state employees of boards of directors aktsionernvk societies is impossible and consequently, that all is far not publicly-pravovv_e formations and акционернвіе the companies can pozvoliti to themselves employment profes - sionalnyh poverennvk and independent directors. At last, it is obvious, that in nvsheshnee time the institute of independent directors and professional attorneys is not developed to the right degree in the Russian business turn: the corresponding infrastructure was not generated, there is no accurate standard regulation. Important questions much from the practical point of view yet have not received due legal regulation in this connection the law-making role is incurred partly by judiciary practice [130]. Hence, full refusal of representation of public interests by civil servants in present conditions is impossible.

The basic conclusions:

1. It is necessary to recognise insolvent the offer to allocate economic societies with state participation by special franchise as the general rule. The general legal capacity is fair and for economic societies with the state participation.

2. 2.1 items 39 of the Law on privatisation it is necessary to interpret a part as supposing realisation by the assignee - an economic society of licensed kinds of activity on the basis of the licence which have been given out to earlier existing unitary enterprise before its renewal.

3. Full refusal of representation of public interests by civil servants in boards of directors in present conditions is impossible whereas institute of independent directors and professional believed in the Russian business turn to the right degree is not developed, there is no its accurate standard regulation.

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A source: Lambaev ZHargal Tumunovich. PARTICIPATION of the RUSSIAN FEDERATION In ECONOMIC SOCIETIES: CIVIL-LAW ASPECT. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2018. 2018

More on topic § 1. Concept of economic societies with the state participation and features of their civil legal capacity:

  1. Chapter 2. Features of a legal status of economic societies With the state participation
  2. § 3. Classification of economic societies with the state Participation
  3. § 2. Economic societies in system of the commercial organisations with the state participation [131]
  4. § 1. Public interests as a basis of participation of the state in economic societies
  5. 3.1. Features of inheritance of the rights connected with participation of the estate-leaver in economic associations, societies and production co-operatives
  6. § 2. Concept and kinds of civil responsibility of members of controls of economic societies
  7. 2.2. The civil legal capacity and capacity of minor patients is elderly till 14 years
  8. Lambaev ZHargal Tumunovich. PARTICIPATION of the RUSSIAN FEDERATION In ECONOMIC SOCIETIES: CIVIL-LAW ASPECT. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2018, 2018
  9. § 2. The bases of occurrence and the termination of the rights of participation of the Russian Federation in economic societies
  10. § 1. Concept and the legal nature of corporate information legal relations of activity of economic societies
  11. § 3. Realisation by the Russian Federation of the rights of participation in economic societies [83]
  12. § 3.1. The legal nature of the contract of insurance of a civil liability individual, members of joint executive powers of economic societies
  13. § 1.1. Concept of a legal mechanism of increase of efficiency of activity of members of controls of economic societies.
  14. §1. Members of controls of economic societies as subjects of civil responsibility