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«Corporate relations» in a modern science of civil customs.

In domestic civil jurisprudence of last decade the weight the big popularity is got by the theory according to which between hozjajstyovennymi societies and their participants develop a special sort of the relation which, according to supporters of this theory, can a life are allocated as an independent version of relations within the limits of a civil law subject.

The specified relations have received the name «corporate otnoyoshenija». Numerous attempts of definition of a place of the specified relations in a subject of civil law, their parity with such kategoyo are undertaken
rijami as property (real and obligations) and non-property relations, relations absolute and obligations, at the moment appear the works directed on complex development «theories korporayotivnyh relations» [51]. Continuation of the such approach in understanding priroyody intraeconomic the relation is extended enough in the scientific and educational literature allocation so-called «the corporate right» in quality podotrasli (or institute) civil law. [52] in connection with last circumstance, the question on validity of allocation by the person razyonovidnosti relations - corporate relations - has - not only znacheyonie within the limits of the designated theme of work, but also mentions questions on civil law system, the bases and allocation possibility in frameworks grazhdanyoskogo the rights podotraslej and institutes in this connection the declared theme issledoyovanija can be taken as a principle researches of a question on system grazhdanyoskogo the rights.

The main thesis, within the limits of the present chapter of work, is utverzhdeyonie that allocation of an independent version public otyonosheny - corporate relations - as an independent component of a subject of civil law is groundless. All relations which arise between economic societies and their participants are entered in that system of public relations which is allocated by a classical science of civil law, that is is or property (objazatelstvenyonym) the relation, or the relation organizational.

Thus at frequent enough use of concepts «corporate relations», «the corporate rights» it is perfect on - to a miscellaneous their maintenance is understood and the place in a civil law subject is defined.

So, some researchers consider, that under «corporate pravayomi» it is necessary to understand the right to participation in management economic obshchestyovom. Thus in this sense more often the corporate rights are understood as
Special sort a version of property rights as realisation of the right to management expressly or by implication has the ielyo satisfaction of valuable interests of their carriers (for example, E.B.Serdjuk).

On presence at shareholders of a special sort of the corporate rights - the rights, svjayozannyh with participation in management of a society professor M.M.AgarYokov [53 [54] specified also. A substantiation of the resulted point of view from a position operating grazhyodanskogo legislations is the following.

According to item 1 of item 2 GK, the civil legislation... reguliyoruet contractual and other obligations, and also others property and svjayozannye with them the personal non-property relations based on equality, an autonomy of will and property independence of their participants. Thus, it agree GK the Russian Federation, allocation in soyostave property relations of other versions, besides directly named in item 2 GK of the Russian Federation is supposed.

Participants of a society, realising accorded by it a right on participation in management of a society, influence formation of will of the company which are the independent subject of law. According to E.A.Sukhanov, «such situation is atypical for civil-law regulation as io to the general praviyolu in the civil circulation subjects are independent and independent the friend from druyoga and consequently cannot directly participate in formation of will of the counterpart». [55] atypical for іражданского the rights the situation podchineyonija will of one subject of law to an ox of other subject is soil for poyopytok independence substantiations in system of a subject of civil law of group of the relations connected with management by the participant of a society dejatelnoyostju of the society. The brightest display of "inequality" of subjects «the participant of a society - an economic society» finds in relations in neobhoyodimosti the participant of a society to submit to the decisions of a society accepted
The majority of participants. Besides, at level GK of the Russian Federation (item 105 item, 106) is fixed possibility of occurrence specific otnoyosheny dependences between prevailing and dependent, and also between osyonovnym and affiliated societies. The term of "the dependence relation» is apprehended and in a science civil права1. Elements «the dependence relation» are inherent in the relations developing in so-called «associations holdinyogovogo type"." Relations of economic dependence and the control, underlying creations of associations of vertical type or associations holdingoyovogo type, according to the classic of the Russian civil law M.I.Kulagin, call into question into a basic principle of civil law - a principle juridiyocheskoju equalities of subjects. Investigating groups of the interconnected persons (holdinyogi, concerns) in bourgeois civil law, the scientist has drawn a conclusion that real mutual relations in economy force the right «to regulate relations legally (and nanosecond only economically) the unequal subjects of law, connected to relations and the power and submission.« Differently, - M.I.Kulagin wrote, - is called into question and traditional definition of civil law as the bodies of rules, regulating the property relations developing across between participants equal in rights tovarnoyogo of a turn. To layer on classical understanding of civil law with ucheyotom process of centralisation of manufacture and the capital means to profess legal idealism »?

Thus specified specificity of the relations developing between hoyozjajstvennym by a society and its participants, by no means nanosecond can svideyotelstvovat about administrative character of the given relations, as «imperiously-organizujushchy character of intraeconomic relations svidetelyostvuet about their administrative (organizational-economic) nature. But in [56 [57]
Them is no the most characteristic for administrative relations priyoznak: imperiously-organizujushchaja state activity »[58 [59]
.

Inherent in a method of civil law optionality and equality stoyoron the relation as it is represented, are characteristic and for relations, skladyvajuyoshchihsja between an economic society and the participant. Really in proyotsesse formations of will of a society by decision-making by its participants there is a situation at which one person should submit to the will of the society generated by the majority uchastniyokov of a society.

That is the participant of a society should submit to will bolyoshinstva participants. And majority will gets the form of the decision accepted by a society in this connection the participant of a society should submit to the decision accepted by a society in spite of the fact that was against acceptance of the given decision, or did not take part in its acceptance. That is the will of the separate participant of a society depends from zeroes of the majority of participants (and, as a result, on will of the society). On the other hand, the will of the society formed as a result of joint will of its participants, completely depends on will of its participants. Thus, sklayodyvaetsja a situation at which the will of a society is in full defined by participants of a society in this connection is not present inherent in civil law rayovenstva participants of relations. As it was repeatedly marked in jurisprudence, «actually we can find in each method of legal regulation and elements« equalities », and elements of" the power-submission ». All business in what parity of these elements within the limits of integrally whole, uniform method of legal regulation, what place of each of them on otyonosheniju to other elements, what specificity of forms of their expression» 2. SushchYOnost administrative submission as it is represented, S.I.Askiaziem who has noticed, that one of the parties in sphere has been very accurately noted admi -
nisgrativnogo the rights it is subordinated another not under the concrete relation, and «... By the most position in system of the state bodies...» [60]. The similar complex (intrinsic) approach to definition of a subject and a method of branch of law means, that at regulation of private relations probably pojavleyonie the norms carrying publicly legal "shade", assuming podchineyonie will of one subject to will of other subject. That is subjects of civil law also can be in a power and submission condition among themselves when one subject the actions defines behaviour of other subject. Thus basically io to the legal status, out of rayomok exclusively given concrete relations, the specified subjects - the legal body and its participant - are equal subjects, regulirovayonie relations between the given subjects is carried out with the help metoyoda decentralisation. Other examples of civil matters, in ramyokah which one person submits to will of other person, the relations arising at commencing a suit about nesostojatelnoyosti (bankruptcy) of the debtor are, for example. In particular, it is possible to carry to such relations, the relations connected with decision-making by meeting (committee) kreditoyorov, the relations connected with realisation of the competence by arbitration managing directors. Taking into account stated, it is represented insufficiently obosnoyovannym allocation of corporate relations (in understanding of these relations as relations on participation in management of a society as independent group of relations within the limits of a civil law subject, recognising that participation of one subject in management of another in itself causes neyoobhodimost allocation of the given group of relations. Necessity podchineyonija will of one subject of civil law to an ox of other subject grazhdanyoskogo the rights it is characteristic for a number of the relations entering into a subject іражданского of the right and cannot be sufficient criterion of allocation such otnosheyony as an independent category of relations within the limits of a subject grazh -
Far prala. Disputable the statement that otyonoshenija on participation in management of an economic society can be otneyoseny to a category of property relations, taking into account that as predstavyoljaetsja, division of the relations entering into a subject of civil law, on imuyoshchestvennye and non-property probably to make exclusively proceeding from their object in which quality in property relations material benefits (property) act Especially is represented. Property relations reflect or a property accessory to the certain person (relations of the property, economic conducting, one hosts of other management, etc.) Or transition imuyoshchestva (but to the contract, l an order of inheritance, harm compensation). As predyostavljaetsja, the relations connected with participation of the participant of a society of l upravleyonii by last, can be in full carried to organizational otyonoshenijam. That is javljaeotsja non-property io to the nature. DejstviYOtelno, it is necessary to recognise, that the participant of a society enters relations on management of a society not for the sake of the managerial process and that as a result of its participation in administrative activity of a society to receive certain profit. However zga the final orientation of the participant obshcheyostva on profit reception cannot, as predsgavljaetsja, to be good cause for qualification of relations on participation in management of a society as property. A detailed substantiation of this statement soderyozhitsja in section of the present work devoted to the characteristic neimushchestyovennyh of relations, developing between obshches tvom and its participants.

Other researchers adhere to the point of view that korporayotivnye the relation - an essence the obligations relations possessing opredeyolennoj specificity. So, D.V.Tarikanov writes that «it is necessary to recognise corporate legal relation obligations». Thus in quality aryogumentov, the author specifies on go circumstance, that as the basis of occurrence of intraeconomic relations transactions - the charter, the articles of incorporation act; to the rules of law regulating intraeconomic relations priyosushcha optionality, all it allows the author to draw a conclusion on possibility
References of corporate relations to obligations ’. Thus, as miniyomum, there is not clear a necessity of introduction of such category as «corporate relations» as they represent only raznoyovidnost obligations. The point of view about the obligations nature «korporayotivnyh relations» is occupied with D.V.Murzin. Thus under corporate otyonoshenijami mohairs understands the right to management in commercial организаци­ях2.

One more approach in concept definition «corporate otnosheyonija» is the point of view, according to which corporate relations - an essence of the relation of membership in a society. The specified approach is based on vydeleyonii member relations, that is the relations arising between a society and its participant directly owing to the fact of participation and property otyonosheny, arising on the basis of the additional juridical facts entering into difficult legal structure: decision-making on payment diviyodendov, decision-making on society liquidation. So, D.V.Lomakin ukazyvayoet on that circumstance, that owing to direct the fact of participation of the person in orgayonizatsii возникаюі korporagivnnye отношения3. A.V.Majfat also specifies a pas go circumstance, that «joint-stock legal relation is member or корпоративні.! M, that is a special kind of legal relation (it is allocated avtoyorom - Century D) . The purpose of occurrence and existence joint-stock member prayovootnosheny including - to serve as the precondition for occurrence otnosheyony obligations as relations the shareholder-society can become obligations at certain being! elstpah (to outgrow in them) »4. However further the author specifies that« participation (membership) as pravootnosheyonie is the necessary precondition for occurrence objazatelstvenyonyh legal relations and enters into legal (actual) structure, porozh -

' Tzrikanoj D.V. The Juridical personality of economic societies on civil law of Russia. Дисссріаци* ia competition of a scientific degree of the master of laws. Ekaterinburg, 2003. With. 51.

‘ Murlsh D.V.securities as legal designs іражааиского a prana. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg, 2001. With. 71.

' Lomakin D.V.sketch of the theory of the joint-stock right and practice of application of the joint-stock legislation. M: the Statute, 2005. With. 197.

4 MaLfat And Features nnoesyrovania about enterprise leja§sdnosn. Questions of the theory and pranoprn - mensnija. - Ekaterinburg, 2001. With. 117.

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Giving obligations. As joint-stock legal relations serve predyoposylkoj for occurrence of other relations, promote formation buyodushchih legal relations it is possible to assume, that they are organiza - tsionno-predposylochnylsh legal relations »1. That is as a result the author opredeyoljaet joint-stock, ecu,"member"relations as a version otnosheyony the organizational. In such treatment corporate relations also cannot apply for a special category of public relations (along with property, non-property relations). The rights and duties of the participant (shareholder) of the economic society, arising in force nepoyosredstvenno the fact of participation in an economic society, represent abyostraktnye the legal possibilities forming an individual legal status of the participant of an economic society and existing before statutory juridical facts outside the limits of relative prayovootnosheny of the participant and an economic society.

Besides, a number of researchers under corporate relations poyonimajut the special kind of relations including all set otnoyosheny, developing between an economic society and its participants. So, for example V.A.Belov has defined the corporate relation as the special sort of relations composed from the rights of participants of economic societies and korresyopondirujushchih by it of duties of these societies [61 [62]. P.V.Stepanov sformuliyoroval concept of the corporate relation as organizatsionnoyoimushchestvennogo the relation arising between corporate organizatsiyoej, whether its members and the third іі ami (managing directors)? According to Gritans J.M. «It is necessary to understand as corporate relations joint (obediyonennoe, integrated, corporate), subordinated to one or several overall aims action and-or actions, behaviour, will zainteresoyovannyh eggs (participants of corporate relations), consolidated (inkorpoyorirovannyh) among themselves corporate communications (corporate speed up -

I eat) »[63 [64]. However in what feature of the given relations? As follows from posleyodujushchih sections of work, the relations arising between economic obyoshchestvom and its participants, represents set separate otyonosheny - obligations, non-property (including organizational) otyonosheny. The Point of view about« collective »character of concept« the corporate

- ?

Relations »also has found reflexion її to the scientific literature.

The point of view that «corporate relations appear as the form of restriction an ox і, their subjects-participants, reflecting redistribution between them economic possibilities in sphere otnoyosheny is stated also to the property, that is as relations of the property with plural structure of subjects-proprietors» [65 [66]. According to N.N.Pahomovoj, «tayokaja the characteristic of corporate relations is solving for oboznayochenija independence of corporate relations and their differentiation from all other social and economic interrelations» ' 1. In the subsequent N.N.PaYohomova the weight comes to the thesis, which as it is represented, as a whole protiyovorechit to the previous statement of the author, about "mixed" legal priyorode corporate relations, specifying that corporate otnosheyonija it is necessary to understand as complex - the non-property (organizational) relations property and connected with them. In the subsequent avtoyorom that corporate relations cannot be carried neither to relations obligations, nor to property relations as «in view of economic and legal nature others, than regulated in these represent two podotrasljah is underlined, relations» [67].

It is ambiguous and treatment of that available in the scientific literature, in ramyokah what organizational - legal forms of legal bodies there are corporate relations. So, T.V.Kashapina under corporation understands ho -
zjajstveniye societies, associations and the unitary enterprises [68]. According to V.N.Petuhova, this term is lawful for using and for associations proyomyshlennyh the enterprises existing during the Soviet period [69]. According to P.V.Stepanova, under corporation it is necessary to understand the organisation based on the beginnings of participation (membership), having special structure of bodies upravleyonija which constitute vojaeobrazujushchne and to an ox expressing bodies korpoyoratsii. Proceeding from it, it refuses in a recognition for full and partnership in commendam of the status of corporation * '.

The concept «corporate relations» as designating a specific version of public relations, is not settled only otyonoshenijami «an economic society-participant of the legal person». IssledoYOvateli at times widely enough treat concept «corporate otnosheyonija», understanding as organizational forms of the last «relations, osnoyovannye on agreements on joint cooperation, relations of the general common property, the special partnership, and also the relations connected with funkyotsionirovaniem of legal bodies of type of economic associations and societies, co-operative societies». ' 1

The specified approaches in concept scoping «corporate otyonoshenija» absence of accurate understanding of necessity and nauchyonoj validity of allocation of separate group of relations in system predyometa іражданского illustrates the rights as are absent independent otlichiyotelnye intrinsic characteristics which could form the basis for allocation of separate group of relations. Numerous communications, skladyyovajushchiesja between an economic society and the participant, can with dosyotatochnoj be presented clearness in the form of separate relations: imushchestvenyonyh, presented in the form of obligations, non-property - in shape orgayonizatsionnyh relations. Association of all numerous relations,
Arising in a society under the uniform name «corporate relations» can, as it is represented, to be carried out with a view of legal характера1. In particular as the bases of day of a similar sort of allocation otnosheyony the uchebno-informative purposes, namely with a view of delimitation of scientific research, educational process can serve. As a possible substantiation of occurrence of the term «corporate relations» also can serve ordering problems іражданского legislations, p communications with what the substantiation can have concept use «the corporate legislation», narjayodu with concept «the enterprise legislation», as reflecting opyoredelennuju subject branch. Thus, as it is represented, terms «corporate relations», the corporate legislation »and in it kacheyostve are far from perfect.

To allocate the given group of relations it is not obviously possible not only because they nanosecond are independent group of relations but to the character, but also by such criteria, as the subject or object of the given relations.

Absence of the legislative and scientifically proved definition ponja -

I

tija "corporation" excludes possibility of scoping of data ponja - ty, giving possibility to each researcher to change structure «barks-! poragivnyh» relations for the account or inclusions in their structure additional груші relations (for example, the relations connected with activity nekomyomercheskih of the organisations, or the unitary enterprises, relations, voznikajuyoshchih at special partnership creation and so on), or for the account not vkljucheyonija in their structure any the relation. As it is represented, introduction in a turn of the scientific and educational literature of concepts "corporation", «the corporate right», «corporate relations» has the tendency to revival and strengthening of the economic-legal concept as one of the bases. Traditionally within the limits of the economic-legal doctrine corner ponja -

' Similar APPROACH ИСП0ЛІ4> * =gsja and p is whole jah definitions of the maintenance II Obema CONCEPTS «housing otnosheyonija»-see: Gongalo B.M.starting about legal regulation housing otnoshenij.//Problems of the theory of civil law. Release 2. - M: the statute. 2006. - С.37.

tnem "enterprise" which is understood as commercial organizayotsija which is allocated by the legal capacity in civil, administrative was, the law of master and servant and other branches of law, thus the enterprise also is the participant intraeconomic отношений.1 Perhaps, the main idea stoyoronnikov ideas of the economic right is the idea of necessity of allocation of branch «economic right» as regulating multidimensional relations with participation of the economic organisations. Supporters of the theory of the economic right in historical polemic with supporters of traditional division otyoraslej the rights (allocation of civil law and administrative, proceeding their subject and a method of regulation of public relations), insisted on

Necessities of allocation of the branch of law regulating «public from -

„•>

The carrying developing in the state socialist economy »\That is, according to supporters of the theory of the economic right (representatives Soviet spiders), exist objective preconditions to association razyolichnyh the relations arising in sphere sotsialisticheskoju of an economy. HoYOzjajstvennoe the right regulates relations« both on a vertical, and on gorizoi -

.. 1 Z-.

tali in a state farm »'. From a position of supporters of the theory hozjajstyovennogo the rights, the classical"dualism"based on allocation of relations, being a subject of regulation of administrative law and the relations which are a subject of regulation of civil law, results« to neveyorojatnoj complexities, unsystematic character, probelnosti and immensity of laws and other normative acts in economic sphere. In preparation system speyotsialistov in ego high schools has generated defective teaching of the economic right as subject matter. Up to present time in country high schools the economic right is not taught as the basic, fundamental discipline. Frameworks civil and administrative law allow that that is system, but even more or less full to shine weight regulation ekonomiyoki »[70].

In connection with change of a social and economic system in modern RosYOsii on change to administrative, planned relations, osnoyovannym on administrative intervention of the state in activity soyotsialisticheskih the economic enterprises, relations of other sort have come. Today on change to the state enterprises which were, as a matter of fact, edinyostvennymi participants of economic circulation the organisations whose dejayotelnost is based on free association of the capital by private persons within the limits of the commercial organisations have come. The given circumstance excludes vozmozhyonost applications of idea of the economic right, arisen in conditions sotsiayolisticheskoj economy and socialist legal system, in neizyomennom a kind in modern a spider of civil law. On, thus, as predyostavljaetsja, traditions of the theory of the economic right find the embodiment in a modern science of civil law in «the updated kind», first of all in scientific polemic about necessity of allocation for a subject civil a prana of a special version a hook named «corporate relations», and also in a substantiation of necessity of allocation of "the corporate right» in quality sayomostojatelnoj iodograsli civil law. « Economic mechanism reorganisation means revision of its basic roots - relations sobstvennoyosti. These changes of the base of economy, naturally, cannot mention nanosecond scientific representations about the economic right and its subject. Elimination from a turn of an "according to plan-directive" element, privatisation, occurrence noyovyh the links of a national economy operating on the basis of collective sobstyovennosti, inclusion in economy of the citizen as tavaroiropzvoditelja, dejstyovujushchego on the basis of the property, business occurrence including pases to a private property basis, transition to market economy transformed ideas of the economic right in compliance with these radical izmeyonenijam. Regulation of relations on became a subject of the economic right
To management and realisation of the economic activities, arising during professional (ustavnoju, owing to realisation of the state competence) release of the goods, performance of works, rendering of services and soputstyovujushchih to these reproduced processes of relations on distribution, obyomenu and to industrial consumption »'. According to N.V.Laptev,« at peyorehode to market Ekonomiks the role of the economic right which becomes the right of enterprise activity aloud increases. « This branch of law covers as the relation.mezhdu businessmen (individualnyyomi and collective), and their relations with the state bodies, that is combines elements private and the public law »* [71]. Display of the theory of the economic right g? Modern conditions, besides other as predstavyoljaetsja, scientific tendencies of allocation certain universal instituyotov are, containing the rules of law regulating absolutely various io to nature of a version of relations and attempt to prove objective predyoposylki necessities of association of diverse relations within the limits of one-its concept. Such institute is the institute« corporate prayova », and a"universal"version of relations which, in opinion opreyodelennyh (supporters of allocation« corporate otnosheyony ») consolidates researchers in themselves diverse relations, are« corporate relations ». Thus it is a question of allocation «corporate relations"as"sets difficult on the structure, the complex relations having organizational-property character» ". In the given understanding of corporate relations necessity of association mnoyogochislennyh the relations arising as between the commercial organisation and its participants is proved. So, P.V.Stepanov defines corporate relations as arising between the corporate organisation, its members and the third parties (managing directors) organizational relations property harakyo
tera, connected with realisation of the corporate rights, their protection viutriorgani - zatsionnyml in the ways and means, with execution corporate objazannoyostej »'. N.N.Pahomova also specifies on"mixed"legal priroyodu corporate relations. Corporate relations, according to N.N.Pahomovoj, cannot be carried to property relations, in to objayozatelstvennym to relations. In T.V.Kashaninoj's understanding, exist osnoyovanija for association of all rules of law regulating activity komyomercheskoj of the organisation within the limits of so-called« the intrafirm right », and to concept« corporate relations »to give as much as possible wide znacheyonie, having included in this concept all diverse relations connected with dejatelyonostju of the commercial organisation [72 [73]
.

Analyzing the vision of concept presented in the scientific literature «koryoporativnye relations» there is a natural question on what sushchestyovujut the bases of association diverse inherently relations (objazayotelstvennyh and organizational) within the limits of uniform concept «corporate relations». As it is represented, such bases simply the nanosecond exists, and isyopolzovanie concepts «corporate relations» as the consolidating concept takes place as the certain reality which is not trying substantiations. Thus edinstyovennym in this case the basis for such association of various relations their subject structure is outwardly visible: relations arise with participation of the commercial organisation, in connection with realisation to it the dejayotelnosti. Thus it is impossible ire to recollect the arguments which have sounded on pages of works of opponents of the theory of the economic right: « It is impossible to lose sight, that in the state socialist economy develop most raznoobyoraznye and it is besides far not homogeneous public relations: upravlencheyoskie, contractual, financial, ground, labour and many other things obshchestyovennye relations. What is these relations constitute a subject regulirova -
pija economic a prana? Certainly is not present! »1. Applying the named argument to the modern scientific validity, taking into account a considered theme, mozhyono to note: between an economic society and its participant there are quite independent obligations, and also organizational relations. Whether there are objective bases for their association? As it is represented, the answer should be negative.

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A source: Davidov Vasily Aleksandrovich. The legal nature of the relationship between economic societies and their participants. Thesis for the degree of candidate of legal sciences. Ekaterinburg - 2008. 2008

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