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§4. Enterprise definition in the Russian legislation of the Post-Soviet period and in the legislation of foreign countries

Change in the late eighties - the beginning of 90th of an economic situation in the country, return to pluralism of patterns of ownership including on means of production, legislative fastening of the right to carry out enterprise activity has generated necessity of search of new legislative forms which would meet requirements of the reorganised society and the state.

One of such finds of the legislator was the enterprise design as property complex - object of the civil rights. The given step, undoubtedly, is progressive as gives the chance to the subject who is carrying out enterprise activity, to define legal destiny of "business" not as sets of isolated property and as a single whole, that, first, will most full be adjusted with essence of the last, and, in - the second, has for an object simplification of procedure of transfer of "business" from one subject to another (as instead of the conclusion of set of contracts on each of objects of property the proprietor has possibility to conclude only one bargain which subject is the enterprise).

At the same time, unfortunately, in the current legislation is not present either legal definition, or an accurate regulation of a legal regime of the enterprise. Positions of the operating Civil code of the Russian Federation, and also korrespondirujushchih to it of the rules of law fixed by other certificates, on the given question regulate not only not all questions connected with a turn of the enterprises as objects of the rights, but also do not give accurate concept about essence of the enterprise.

It is curious, that such relation of the legislator to the enterprise is not new. Fixing the enterprise as object of the rights, modern

The legislator, apparently, has decided to restore the corresponding legal tradition existing during the pre-revolutionary period in the Code of laws Civil. Then the trade enterprise was not called as a property complex, but its regulation was carried out on the same principles, as now. And the same as and today, the legislation of XIX centuries did not give accurate representation about essence of the enterprise: «and at us the term the enterprise as that, is not alien to language of the legislator, but is absolutely not known to the law neither the maintenance, nor volume of this concept», marked V.V. Rosenberg [52].

At the same time, the situation which has developed with legal definition of the enterprise now is even more pitiable, as bears on itself a print of rules of law of the socialist period.

The approach of the Soviet civil law to understanding of the enterprise as legal person "has so got accustomed", that the modern legislator, coming back to pre-revolutionary definition of the enterprise and allocating the last properties of object of the civil rights, could not depart from the use of the corresponding term with reference to legal bodies (paragraph 4 of chapter 4 of the Civil code of the Russian Federation). So negligent relation of the legislator to terminology has generated mess in the ranks of the scientists who have directed the efforts to consideration of the given problem, and became one of barriers on a way of those who aspired to learn essence of so uneasy in itself phenomenon as the enterprise. So, V.G.Stepanov marks: «the Legal side separating state and

The municipal enterprise as the subject from the enterprise as object of civil law, is rather difficult opredelima »*.

Illustration to the resulted statement are scientific works meeting till now in which under the uniform name "enterprise" authors diverse concepts - the subject and the legal object mix up. As a result there are strange enough formulations: «the unitary enterprise as a property complex» (that is, differently «the subject of law as the legal object»); «the citizen cannot possess the enterprise - as the independent legal body» 3.

Stated eloquently testifies to necessity of legislative unification of concept of the enterprise and its reference it is exclusive to legal objects by corresponding specification of formulations of norms about the state both municipal unitary enterprises and replacements in names corresponding legal лиц4 the term "enterprise" on the term "organisation" (used by civil law of the Russian Federation for a designation of the legal person - item 23, 48 GK the Russian Federation), and also accurate definition of a place of the enterprise among other objects of the rights.

Good illustration of necessity of reforming of the Russian Federation fixed by operating civil legislation of the dual nature of the enterprise in favour of understanding of the enterprise as object of the rights is experience of the foreign countries for a long time defined with the approach to definition of concept considered by us. [53 [54] [55] [56]

So, to France the enterprises as independent objects of the rights began to be involved in an economic turn even from the moment of acceptance on March, 2nd and 17, 1791 decrees about economic activities freedom. And though till now the legislative definition of the enterprise in the French normative acts has not appeared, the enterprise actually is understood by the right as special object - the property set including chose transitories, a part of a fixed capital and floating assets, clientele, the rent right, the right to a signboard, the trading name and other objects of the industrial property which has developed business ties, reputation, constant sources снабжения1.

Formation of a category of the enterprise in the German civil law also has long history. Approximately in XVIII century the enterprise designated by term Handlung and considered before as economic concept, began to admit a legal category as an economic entity consisting of property, and also actual and legal relationships, and able to act in a turn as a unit.

The German legislation operating now, like French, does not contain enterprise definition, but actually regulates its turn as object of the rights. So, paragraphs 25 and 26 Trading codes of Germany regulate transition to the purchaser of the enterprise of debts and the incorporeal rights of the previous owner based on conducting of the enterprise, and also terms of a presentation of requirements to the purchaser of the enterprise [57 [58] [59] 1897. The stated norms testify to understanding the German right of the enterprise as object, instead of the subject of civil-law relations. Moreover, investigating an enterprise legal status as object of the rights under the legislation of Germany, A.V.Gribanov notices, that the enterprise there «does not represent itself as uniform, complete object in real right. That it is only in a liability law. In case of fulfilment of transactions with it the principle of distribution of real right on each thing operates... . At the same time the design of institute of the enterprise in the German right allows to approve about presence in it of the expressed signs of the chose transitory and non-material value »[60].

Similar Russian the approach to understanding of the enterprise is traced and in the Italian legislation fixing in item 2555 GK of Italy the enterprise as object of the rights (azienda) in the form of a property complex, used by the businessman for realisation of enterprise activity, and being the object of the rights including material and non-material elements, consolidated by the businessman in functional unity. Thus the businessman defines a profile of activity of the enterprise and things necessary for it for this purpose and property, in the course of activity of the enterprise the part of its components can leave, cost of a property complex can change, that will not affect integrity of the enterprise as legal совокупности1.

The Canadian legislation considers the enterprise as object, the rights on which can pass not only by the conclusion its proprietors of civil-law transactions, but also as hereditary assignment. So, item 852 GK of Quebec fixes inadmissibility of crushing of the enterprises at inheritance section, item 858 of the named Code - primary granting of the rights to the enterprise to the successor actively participating in operation of the enterprise at the moment of death of the estate-leaver, article 839 and 841 Codes - possibility of preservation of the joint property on family business at its transition is perfectly in order наследования2.

Thus, stated testifies that the tendency of transition formed now in the Russian legislation from understanding of the enterprise as the subject of the rights to its consideration as object civil including hereditary, the rights, corresponds to the approach generated in the legislation of economically developed countries and applied already throughout several centuries, and, hence, definitive fastening of the enterprise as object of the civil rights in GK the Russian Federation will exclusively promote integration of Russia into legal space of the world community.

For the sake of justice it is necessary to notice, that in the doctrine specified above the countries there is a double approach to enterprise definition, including, and by its consideration as subject (participant) of economic relations. However that circumstance, that corresponding reasonings remain theoretical and are not perceived by the legislation of the named countries, in our opinion, once again testifies to an inconsistency of corresponding theories. [61 [62] [63]

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A source: Smirnova Victoria JUrevna. enterprise Inheritance as property complex in the Russian civil law. The dissertation on competition of a scientific degree of the master of laws. Rostov-on-Don,.

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