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2.1. The bases of occurrence and the termination of the civil-law status of participants of state-private partnership

The bases of occurrence and the termination of the civil-law status of participants GCHP are juridical facts. Scientists-theorists traditionally understand certain vital circumstances with which rules of law connect approach legal последствий1 as juridical facts.

As V.B.Isakov marks, concept

The juridical fact includes two basic moments: presence of the phenomena of the validity - events or actions (the material moment); them predusmotrennost in rules of law as the bases of legal effects (the legal moment) [217 [218] [219].

In turn, scientists-tsivilisty significant recognise only those juridical facts which attract legal consequences in sphere of civil matters.kak marks M.A.Rozhkova, everyone

The actual fact becomes the juridical fact in the event that it comes within the purview of the rule of law which provides for abstract model of such circumstance occurrence of any consequences [220]. Thus the juridical fact in civil law is a real vital circumstance with which legal model the civil law connects certain legal consequences and which actual approach attracts such consequences in sphere civil правоотношений1.

For occurrence of legal consequences often not enough one juridical fact, and presence of several juridical facts which create difficult formation - legal structure is necessary. It is necessary to understand set of juridical facts as legal structure, owing to the rule of law necessary for approach of legal consequences. Each of juridical facts entering into legal structure should meet the requirements, established concerning it the rule of law. Only under condition of conformity of each juridical fact to requirements shown to it approach of the juridical facts which set forms legal structure will take place.

In the legal literature there are various classifications of legal structures (simple and difficult, finished and not finished and

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Other) .na our sight, the optimal is V.B.Isakova and M.A.Rozhkovoj's approach, divided legal structures on three kinds.pervyj the kind of legal structure is characterised by that for approach of legal effects simultaneous existence of all elements of legal structure is necessary, irrespective of an order of their accumulation (free legal structure). The second kind of legal structure differs that for occurrence of legal effect the facts should not only exist simultaneously, but also necessarily sustain a certain order of accumulation in structure (the connected legal structure).takie legal structures take place when the rule of law directly provides passage of certain procedure for occurrence of legal consequences. The third kind of legal structure assumes, [221 [222] [223] that from two or several juridical facts specified in norm for approach of legal effects is enough occurrence of one such fact (mixed legal structure).

The effect of absorption according to which approach of circumstance finishing legal structure destroys the previous juridical facts is inherent in one legal structures and attracts approach of legal consequences. The effect of accumulation when any of circumstances entering into legal structure in itself yet does not attract legal consequences is more peculiar to other legal structures, and they arise only as a result of approach of all named juridical facts.

And in weary in other case legal consequences arise owing to effect of legal structure which appears after approach of circumstance finishing legal structure and represents qualitative transition of legal structure in a complete condition [224].

The bases of occurrence of the civil-law status of participants GCHP it is not simple set of juridical facts, and their established system forming difficult connected legal structure. The effect of accumulation as for occurrence grazhdanskopravovogo the status of participants GCHP corresponding juridical facts should sustain a certain order of accumulation according to norms of the Law about GCHP is inherent in such structure. Therefore formation process grazhdanskopravovogo the status of participants GCHP consists of five stages (stages), each of which is the separate juridical fact and carries out the special problems. Thus first four stages cover precontractual relations of potential participants GCHP.

At the first stage working out, consideration and decision-making on possibility of realisation of project GCHP is carried out. The maintenance of the second stage is the analysis of an estimation of efficiency and definition of comparative advantage of project GCHP. The third stage consists in decision-making on realisation of project GCHP. The fourth stage-carrying out of competition on the making agreement right about GCHP. The fifth stage consists in making agreement about GCHP and the direct agreement.

All stages (stages) are consolidated by the uniform purpose which consists in occurrence of the civil-law status of participants GCHP.I such legal effect can arise only in the presence of all elements (stages) of legal structure and at observance of the specified order of their accumulation.

Let's notice, that for the connected legal structure of occurrence of the civil-law status of participants GCHP the "linear" dynamics assuming consecutive accumulation of elements entering into its structure - stages of occurrence of the civil-law status of participants GCHP is characteristic. Thus in development of legal structure there are the intermediate legal effects consisting in legal possibility of approach of the next stage of legal structure of occurrence of the civil-law status of participants GCHP. As V.B.Isakov marks, intermediate legal effects are peculiar to any version of the connected legal structure [225].

Degree of complexity and quantity of made actions at any stage of occurrence of the civil-law status of participants GCHP depends on problems which are carried out by a concrete element (stage) of legal structure. The first stage (stage) of occurrence of the civil-law status of participants GCHP on which working out and consideration of the offer on realisation of project GCHP is carried out is most full regulated. Elements of this stage find the place in that or other degree and at the subsequent stages of occurrence grazhdanskopravovogo the status of participants GCHP. Intermediate legal effect of this stage is formation of the civil-law status of potential participants GCHP at the persons applying for making agreement about GCHP (the potential public and private partner).

Procedure of occurrence of the civil-law status of participants GCHP begins with a stage (stage) of working out of the offer on realisation of the project of state-private partnership which is characterised by presence of several podetapov (the first stage of occurrence grazhdanskopravovogo the status of participants GCHP). The given stage is based on the initiative of participants of the civil circulation which, under V.F.Jakovleva's fair remark, is the driving beginning in formation and development of civil matters [226]. Therefore for the decision of the problem put by us on occurrence and termination research grazhdanskopravovogo the status of participants of state-private partnership such stage should be divided into three podetapa.

On the first podetape (item 1-4 of item 8 of the Law about GCHP) is defined the initiator of project GCHP; in this quality the future public partner can act both potential private, and. Thus obligations of the given persons differ. In a case if (further - the project) acts as the initiator of the project of state-private partnership the potential public partner, it provides working out of the offer on realisation of the project and directs it on consideration to the authorised body (item 1 of item 8 of the Law about GCHP). If as the initiator of the project the potential private partner it also is obliged to provide working out of the offer on realisation of the project acts and to direct to its public partner together with given out by bank or other credit organisation an independent guarantee (bank guarantee) in volume not less than five percent of volume of predicted financing of the project (item 2 of item 8 of the Law about GCHP). As it is marked in the legal literature, such guarantee is way of maintenance of execution of obligations and urged to protect interests public партнера1.

It is necessary to notice, that in the Law about GCHP there is no rule about presence at the initiator of the project of a certain experience under the authority of economic activities. Meanwhile this norm is provided in many developed laws and orders. To its necessity fairly pay attention in the legal literature [227 [228] [229].

According to the Law about GCHP the initiator of the project directs the final version of the offer though its working out can demand the essential

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Financial and time expenses. As A.Andersen marks, necessity of execution of such expenses before reception from the public partner of formal acknowledgement of potential interest in project realisation essentially increases risks of the initiator of the project and, as consequence, reduces appeal of the mechanism of not enquired offers to private investors, transforming them in the passive participants of the civil circulation expecting the initiative from the public partner [230].

For liquidation of the specified problem the Law about GCHP has provided the following short story. In case as the initiator of the project the private partner acts, to an offer direction between the initiator of the project and the public partner carrying out of the exploratory talk connected with preparation of the offer on realisation of the project in an order, defined Minekonomrazvitija Russia [231] is supposed. Presence of this

Efficiency of the mechanism of not enquired offers as allows to confirm presence of interest of the public partner in project realisation can raise possibilities considerably, and also to define with the public partner of the characteristic of the offer and to lower risk of refusal in project realisation about GCHP.

In many foreign countries procedure of a direction and an estimation enquired предложений1 is provided dvuheatpnaja. Such procedure is applied in the countries - leaders in GCHP (the USA, the Great Britain, France and Germany) [232 [233] [234]. The initiator of the project directs to the public partner

The preliminary offer (its general description), and the public partner considers it in short terms and confirms or confutes the interest to the project. And only in case of interest of the public partner the initiator of the project develops and directs it the full version of the offer. The similar approach allows the initiator of the project to minimise the expenses on offer working out in default the public partner in its realisation. A minus dvuhetapnoj procedures of a direction and an estimation of offers is the increase in an imprisonment term of agreements about GCHP.

The offer on project realisation should contain essential conditions of the agreement about GCHP, and also data on volumes of private and public financing of project GCHP. A number of scientists-lawyers call into question necessity of putting on on the private partner of a duty in draught agreement working out about GCHP because of considerable expenses of the private partner for working out of the agreement and risk of formation by the private partner of conditions of agreement [235] unprofitable for the public partner.

For today content requirements and the form of not enquired offers for the agreement about ГЧП1 are approved. In the relation

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kontsessionnyh agreements such requirements also exist. We will notice, that they do not provide position about necessity of granting of any confirming documents in case the initiator of the project plans to finance it at the expense of own means. Besides, specified requirements carry, more likely, formal character - in the developed countries in the offer is required to specify much bigger volume of data. We will notice, that in developed правопорядка* (in particular, in the World Trade Organization right) the state and municipal needs frequently are understood very widely.kak marks O.A.Serova, it is a consequence of increase in volume of the organisation-legal relations submitting to regulations of purchases for state and

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Municipal needs.

On the second podetape (item 5-6 of item 8 of the Law about GCHP) the public partner considers such offer in time, not exceeding ninety days from the date of offer receipt. It is interesting, that by consideration by the public partner of the offer on realisation of the project it has the right to enquire additional materials and documents of the initiator of the project, and also to carry on with the initiator of the project negotiations, including in the form of joint meetings. By results of their carrying out changes can be made to the offer on [236 [237] [238] [239] realisations of the project under the consent of the initiator of the project and the public partner. Results of the negotiations including decision-making on change of the maintenance of the offer on realisation of the project, are made out by the report which should be signed the public partner and the initiator of the project and is constituted in duplicate.

Offer creation represents zatratnyj процесс1. In the Law about GCHP there are no mechanisms of protection of the data stated in the offer

0 realisations of the project. There is a risk of that in default in making agreement about GCHP these data can be transferred the third parties or are used by the public partner in other purposes. At the same time decisions which allow to lower considerably occurrence of such consequences for the private partner [240 [241] [242] have been found in the developed laws and orders.

The first consists in granting to the future private partner of the right of instructions of elements of the offer which cannot be divulged under no circumstances. The second consists in an establishment of terms during which the public partner can carry out use of materials of the offer. The third consists in granting to the public partner of the right to redeem data from the offer. The fourth consists in compensation to the initiator of the project of expenses on offer preparation in default the conclusions with it of the agreement about GCHP.

It is necessary to notice, that the fourth variant is most extended in foreign countries, and indemnification of expenses on offer working out is carried out at the expense of the public partner or the person with which it is concluded

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The agreement. In our opinion, it is expedient to establish in the Law about GCHP any of the specified mechanisms of legal regulation which will allow to influence directly on правоотношения1 and it is essential to raise appeal GCHP as legal phenomenon.

On the third podetape (item 7-10 of item 8 of the Law about GCHP) following the results of three-monthly consideration of the offer on project realisation the public partner accepts on it one of following decisions: 1) about a direction of the offer on project realisation on consideration in the authorised body with a view of an estimation of efficiency and definition of its comparative advantage (about possibility of realisation of the project); 2) about impossibility of realisation of the project.

In our opinion, the limited three-monthly term in many respects excludes a tightening of process of consideration of the offer. At the same time available in the Law about GCHP the list of content requirements of the offer with inevitability will entail the serious additional analysis of the offered draught agreement demanding considerable time [243 [244]. It is necessary to notice, that in foreign practice it is established equal three-monthly or bolshy term for offer consideration (for example, in Chile - 1 year).

The decision of the public partner on impossibility of realisation of the project should be motivirovannym and is accepted on only on the bases established in the law. The list of such bases has the closed character. In our opinion, they can be divided on two groups: simple (podp. 1-3, podp. 6 and podp. 10 items 8 of the Law about GCHP) and difficult (podp. 4-5, podp. 7-9 items 8 of the Law about GCHP). The first group includes in sebjaosnovanija, having formal character and meaning simple failure to meet requirements to the form and the maintenance of the offer on project realisation (podp. 1-3), refusal of negotiating or nedostizhenie agreements on change of such offer (podp. 10) or absence of budgetary funds on project realisation (podp. 6). The second group is characterised by the bases connected with the civil-law status of object of the agreement (for example if making agreement concerning the specified object of the agreement is not supposed or concerning this object already there are entered into agreements - podp. 5 items 8 of the Law about GCHP).

Available the list of the bases allows ample opportunities to the public partner to give up to the initiator of the project in its realisation that raises corruption risk for the initiator of the project. However such approach has also pluses as allows the public partner not to accept the offer in case of absence of corresponding need ' 1. If the public partner the decision on possibility of realisation of the project of state-private partnership is accepted, it directs it on consideration to the authorised body. The second stage of making agreement about GCHP (Law item 9 about GCHP) in which the authorised body considers the project directed by the public partner with a view of an estimation of its efficiency and presence so-called thereby begins. «Comparative advantage».

The second stage of occurrence of the civil-law status of participants GCHP also can be divided on podetapy. The first podetap (podp. 2-3 items 9 of the Law about GCHP) consist in an estimation of efficiency of the project. It is necessary to notice, that the problem of definition of efficiency GCHP already was a subject of steadfast attention of scientists [245 [246]. According to the Law about GCHP it is spent on the basis of following criteria: 1) financial efficiency of the project of state-private partnership; 2) sotsialnoekonomichesky effect from realisation of the project of state-private partnership. Project consideration on its comparative advantage is supposed in case it will be recognised by effective on each of

The specified criteria.

The second podetap (podp. 4 items 9 of the Law about GCHP) are characterised by definition of comparative advantage of the project. The law actually understands economy as comparative advantage in use of budgetary funds at GCHP-PROJECT realisation (under condition of equality of the price, quantity, quality, other characteristics of the delivered goods, the performed work, rendered service) before realisation of the state and municipal contract (item 8 of item 3 of the Law about GCHP). It is necessary to add, what exactly in many respects and consists in this advantage sense gosudarstvennochastnogo partnership, and as in operating Russian, and the foreign legislation [247]. According to the Law about GCHP it is defined on the basis of a parity of two indicators: the pure discounted expenses of means of budgets iobema obligations accepted by the public partner.

By consideration of the offer on realisation of the project about an estimation of efficiency of the project and definition of its comparative advantage the authorised body has the right to enquire additional materials and documents of the public partner, the initiator of the project, to carry on negotiations with obligatory participation of the public partner and the initiator of the project, including in the form of joint meetings (podp. 8 items 9 of the Law about GCHP) which results come under to obligatory recording (items 9 of item 9 of the Law about GCHP). By results of studying of the materials directed to the authorised body and documents, and also the spent negotiations the maintenance of the offer on project realisation can be changed in the presence of the consent of the authorised body, the public partner, and also the initiator of the project (item 8 of item 9 of the Law about GCHP). It is necessary to tell, that carrying out of negotiations is a short story of the Russian legislation about GCHP. In regional laws of such norm

It is provided not было1.

Term of carrying out by the authorised body of an estimation of efficiency of the project and definition of its comparative advantage cannot exceed ninety days from the date of receipt of such project in the authorised body (item 5 of item 9 of the Law about GCHP). Further, according to item 10 of item 8 of the Law about GCHP following the results of consideration of the project the authorised body approves one of following conclusions: 1) the conclusion about efficiency of the project and its comparative advantage (the positive conclusion of the authorised body); 2) the conclusion about an inefficiency of the project and (or) about absence of its comparative advantage (the negative conclusion of the authorised body). The approved conclusion goes to the public partner and the initiator of the project together with the report on carrying out of negotiations (if those were spent).

In a case if the authorised body has approved the negative conclusion, it will be refusal of realisation of the project of state-private partnership (item 10 of item 8 of the Law about GCHP). It is important to notice, that it can be appealed in court (item 11 of item 8 of the Law about GCHP). In case the authorised body has approved the positive conclusion, the public partner within five days directs the drawn conclusion to the bodies authorised according to the Law about GCHP on decision-making on realisation of the project.

At the second stage of making agreement about GCHP the great value has quality of work of the state and municipal bodies in sphere GCHP (which, unfortunately, frequently not quite satisfactory [248] [249]) therefore as the decision on realisation of project GCHP is accepted exclusively on the basis of the positive conclusion of the authorised body. Therefore, in our opinion, it is necessary to give special attention to an estimation of efficiency of the GCHP-PROJECT, namely indicators, of which there is such estimation (item 2 of item 9 of the Law about GCHP).porjadok and a technique of an estimation of efficiency of the GCHP-PROJECT and its definition comparative

Advantages it is established by the Government Russian Федерации1 and

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The ministry of economic development of the Russian Federation according to (item 6-7 of item 9 of the Law about GCHP). However long time such regulatory legal acts were not accepted, that negatively affected development GCHP in Russia.

So, after a direction of the positive conclusion in

The authorised bodies the third stage of making agreement about GCHP - decision-making on realisation of the project of state-private partnership (Law item 10 about GCHP) begins.

According to the Law about GCHP the decision on project realisation is accepted on the basis of the positive conclusion of the authorised body in time, not exceeding sixty days from the date of its reception (item 1 of item 10 of the Law about GCHP). This decision affirm (item 10 item 3) the purposes and problems of realisation of such project, the public partner, and also the list of bodies and the legal bodies acting on the party of the public partner (in case transfer of the separate rights and duties of the public partner to such bodies and legal bodies is supposed), essential conditions of the agreement, a kind, criteria, terms of carrying out of competition etc. [250 [251] [252]

For this situation there is one exception. In case the decision on project realisation is accepted on the basis of the offer on realisation of the project prepared by the initiator of the project, the given decision affirm: the purposes and problems of realisation of such project; the public partner, and also the list of bodies and the legal bodies acting on the party of the public partner (if transfer of the separate rights and duties of the public partner to such bodies and legal bodies is supposed); essential conditions of the agreement (item 10 item 3.1).

Further the public partner in time, not exceeding ten days from the date of decision-making on project realisation, places in a network the Internet (on a site www.torgi.gov.ru1) the decision on realisation of the project with a view of acceptance of statements in writing from other persons about intention to participate in competition on the making agreement right about GCHP (item 10 item 8). The Application form and an order of its direction are approved by the Government of the Russian Federation. In a case if such statements have arrived from the third parties in a statutory order, the public partner in time, not exceeding hundred eight-ten days from the date of acceptance of day of the termination of gathering of statements in writing about intention to participate in competition on the making agreement right, provides the organisation and competition carrying out on the making agreement right (item 10. Item 10). Thus, there comes the fourth, largest and difficult stage of making agreement about GCHP (Law item 19 about GCHP). [253 [254]

However the law provides also exceptions of this rule. If within forty five days to the public partner from the third parties statements for intention to participate in competition have not arrived (or if such statements have arrived from the persons mismatching requirements of the law), the public partner makes the decision on making agreement with the initiator of the project without carrying out of competition and establishes term of signing of such agreement (item 10 item 9). Besides, according to item 2 of item 19 making agreement without competition carrying out is supposed under certain conditions with the person, the recognised unique participant of competition (podp. 2 items 2 of item 19), with the person who has presented the unique application form for participation in competition (podp. 3 items 2 of item 19) and also with the person who has presented the unique competitive offer (podp. 4 items 2 of item 19).

The fourth stage of occurrence of the civil-law status of participants GCHP consists in the competitive procedures which due carrying out will allow to provide a real competition concerning selection of the private partner. Competitive procedures have been fixed in the pre-revolutionary commercial law of the Russia which have passed in XIX century of some stages of modernisation [255]. In our opinion, competition on the making agreement right about GCHP is a statutory system of consecutive legally significant actions of public formations, the authorised body, the public partner, participants of competition, the competitive commission, directed on selection of the private partner for making agreement about GCHP with a view of project realisation is state - private partnership.

As scientists-lawyers specify, activity on making agreement about GCHP represents difficult and long процесс1. Subjects of this activity from the Russian Federation, subjects of the Russian Federation, municipal union besides the public partner are the authorised body and the competitive commission. The authorised body considers the offer on realisation of the project for an estimation of efficiency and definition of its comparative advantage. The competitive commission carries out competition carrying out on the making agreement right about GCHP. Following the results of competition the winner with whom the agreement further is entered into is defined.

In many respects for the reason that the overwhelming majority of laws in force of subjects of the Russian Federation in sphere GCHP at all was not regulated by competitive procedures [256 [257], the legislator has in detail registered them in the Law about GCHP. As a result for today the law about GCHP provides eight consecutive stages (within the limits of our classification - podetapov) carrying out of such competition. Though they, in our opinion, at the heart of the have been borrowed from item 1 of item 12 of the Law of St.-Petersburg about state-private partnership (the similar norm contains as well in item 1 of item 12 of the Law of Yamal-Nenets autonomous region about GCHP, and in some other laws), on the making agreement right it is necessary to consider the uniform order of carrying out of competition fixed at federal level as an unconditional step forward for development GCHP in Russia. This step will allow not only to avoid set of abusings in competition sphere, but also will interfere with excessive expansion of regional, municipal legal base.

The order of carrying out of competition is regulated in gl. 5 Laws about GCHP. It is necessary to stop on procedure of its carrying out in more details. According to item 3 of item 19 competition on the making agreement right can be opened (application forms for participation in competition any persons can represent, i.e. It is opened on structure of participants) or closed (application forms for participation in competition can represent persons to whom invitations to take part in such competition are sent). Thus concerning the closed competition the standard rule for the current legislation operates: the closed competition is spent in case the agreement is entered into concerning object of the agreement, data about which constitute the state secret.

Scientists-lawyers notice, that in any country GCHP anyhow has the специфику1 which is in many respects defined normativnopravovoj by base [258 [259]. Are not an exception and competitive procedures. According to the law about GCHP competition on the making agreement right is spent according to the decision on realisation of the project and includes eight consecutive этапов:1) placing of the message on competition carrying out in a network the Internet (at the closed competition - a direction of the notice on carrying out of the closed competition to the persons defined by the decision on realisation of the project); 2) representation of application forms for participation in competition; 3) opening of envelopes with application forms for participation in competition; 4) carrying out of preliminary selection of participants of competition; 5) representation of competitive offers; 6) opening of envelopes with competitive offers; 7) consideration, an estimation of competitive offers and definition of the winner of competition; 8) signing of the report on results of carrying out of competition, placing of the message on results

Competition carrying out in a network the Internet and the notice of participants of competition on results of carrying out of competition.

According to the decision on realisation of the project competition on the making agreement right can be spent and without a stage of carrying out of preliminary selection of participants of competition (item 19 item 5).

The public partner traditionally plays the leading part in the course of realisation of project ГЧП1. In communication setim it is necessary to note a special role of the public partner and the authorised body and in the course of the competition organisation. The public partner in coordination with the authorised body defines the maintenance of the competitive documentation, the form of giving of application forms for participation in competition, an order of preliminary selection of participants of competition, an estimation of the competitive offer and placing of results of competition. In turn, the authorised body carries out the control over conformity of the competitive documentation to the offer on project realisation, including to results of an estimation of efficiency of the project and definition of its comparative advantage (item 7 and item item 8 19Закона about GCHP).

As criteria of selection at competition can be established (item 19 item 9): 1) technical criteria; 2) financial and economic criteria; 3) legal criteria. In many respects the choice of this or that depends on these criteria private partnerai, as consequence, efficiency of project GCHP [260 [261]. For each statutory criterion of competition special parametres (item 19 item 11) are established. We will notice, that installation of various criteria of project GCHP was observed in practice to an adoption of law about GCHP [262].

The law carries to number of legal criteria: agreement period of validity, the risks taken up by the public partner and the private partner, including the obligations taken up by the private partner in cases of short-reception of planned incomes (operation and (or) maintenance service) or occurrence of additional expenses (creation, operation and (or) maintenance service of object of the agreement). Agreement Period of validity is carried to legal criteria because of long term of cooperation within the limits of GCHP. On the average it constitutes from 15 to 20 лет1. Inclusion of risks taken up by participants GCHP also is explainable. Optimum distribution of risks - one of the major principles GCHP. It means, that parties GCHP incur the risks most absorbed from its part. Thus there is a tendency of putting on of the big risks on the private partner as such partner carries out enterprise activity (in kotoroju initially such risk and is put in pawn).

As marks And. V.Belitskaja, legal regulation gosudarstvennochastnogo partnership should be carried out within the limits of the investment legislation [263 [264]. Therefore the law especially marks the importance

Investment obligations of partners in the agreement. According to item 17 of item 19 of the Law about GCHP the volume of the private financing which are coming under to attraction for execution of the agreement, is obligatory criterion of the competitive documentation. In turn, if the agreement provides partial financing of the project by the public partner, criteria of competition without fail join as much as possible predicted volume of the specified financing (item 18 of item 19 of the Law about GCHP).

The winner of competition the participant of the competition which competitive offer on the conclusion of the competitive commission contains the best conditions in comparison with conditions which contain in competitive offers of other participants (items 20 of item 19 of the Law about GCHP) admits. If the winner of competition refuses or will evade from agreement signing when due hereunder, making agreement with the participant of the competition which competitive offer by results of consideration and an estimation of competitive offers contains the best conditions following after conditions is supposed, offered by the winner of competition (item 24 of item 19 of the Law about GCHP).vmeste with that owing to a number of the bases competition can be recognised and by not taken place (item 19 item 25).

According to V.V. Kilinkarova, among the most widespread infringements of competitive procedures in sphere GCHP are: the restriction of a competition expressed in granting preferentsy to separate participants of competition, and also frequently a presentation to participants of the auctions inadmissible from the point of view of the law of requirements and granting to separate participants of competition corresponding competitive преимуществ1. V.E.Sazonov also establishes a considerable quantity

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Abusings at a choice of the private partner. It is necessary to support scientists in their aspiration to enter planned and off-schedule checks from the state and municipal bodies under each project GCHP. We will notice, that in practice there are attempts of the private partner to force the public partner to making agreement about GCHP in

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The legal process. [265 [266] [267]

Competition on the making agreement right about GCHP is the extremely difficult process demanding both from public, and from the private partner a considerable quantity of legally significant actions [268]. Such process has difficult internal structure and includes the whole complex of actions for acceptance of application forms for participation in competition, to carrying out of preliminary selection of participants of competition, acceptance of offers of participants of competition, their estimation, definition of the winner of competition and so forth, divided on eight stages and items 19 of the Law specified in item 4 about GCHP. Meanwhile, therefore as relations within the limits of GCHP are a version of the civil-law relations complicated by an administrative element, 10 times makings agreement about GCHP extend general rules of a part of the first GK the Russian Federation about the acceptance and the offer. Nevertheless such rules in sphere GCHP have certain specificity: in case of carrying out of open competition (i.e. Under the general rule) the public partner invites all interested persons to take part in the GCHP-PROJECT by publication of the message on competition carrying out on the making agreement right about GCHP in a network the Internet (podp. 1 items 4 of item 19 of the Law about GCHP). However, despite the fact that what such public message is directed on an uncertain circle of persons, it is not the public offer, and is considered as the offer for giving of own offers by them.

As the offer giving in the competitive commission the interested person of the application form for participation in competition (Law item 23-24 about GCHP) will act in this case. Further, after passage of preliminary selection, i.e. After the admission to participation in competition (Law item 25 about GCHP), the participant of competition in a statutory order gives in the competitive commission the competitive offer (Law item 26-27 about GCHP). Then, after long procedure of consideration and an estimation of the presented competitive offers (Law item 28 about GCHP) the competitive commission makes the decision on definition of the winner of competition in the form of the report of consideration and an estimation of competitive offers (Law item 29 about GCHP). The final will of the competitive commission executed in the form of the report on results of carrying out of competition, it is necessary to recognise as the acceptance on the offer of the participant of competition (Law item 30 about GCHP). This report includes a considerable quantity of documents: The decision on making agreement, the competitive documentation, the report of consideration and estimation of competitive offers and so forth

Then the competitive commission publishes the message on results of carrying out of competition, and also notifies on results of its participants (Law item 31 about GCHP). The fourth stage of occurrence of the civil-law status of participants GCHP, sated Thereby comes to the end with a considerable quantity of legally significant messages. We will notice, that separate questions of legal regulation of legally significant messages in the field of GCHP were already considered in A.E.Kirpichevym's legal literature [269].

Thus, it is possible to formulate following rules of application of usual rules of the offer and the acceptance in competitive procedures at making agreement about GCHP: 1) the message on competition carrying out is the invitation for participation in competition; 2) application forms for participation in competition (and after preliminary selection - competitive offers) are offers of its participants; 3) the best competitive offer forms the offer; 4) executing a process-verbal about results of carrying out of competition is the acceptance; 5) the winner of competition has the right to withdraw the offer, having refused from agreement signing about GCHP.

The fifth stage of occurrence of the civil-law status of participants GCHP begins from the date of signing by members of the competitive commission of the report on results of carrying out of competition. The public partner is obliged on the basis of the decision on project realisation to carry on negotiations with the winner of competition with a view of discussion of conditions of the agreement and their possible change by results of negotiations. However by results of negotiations essential conditions of the agreement (item 3 of item 32 of the Law about GCHP) cannot be changed.

Results of negotiations are made out in the form of the report which together with the agreement about GCHP the public partner directs to the authorised body on the coordination about conformity of the agreement of the competitive documentation. In case of the coordination of the agreement and the applied report of negotiations the authorised body directs the signed agreement to the public partner (item 32 item 4). The agreement should be signed the winner of competition in time, established by the competitive documentation, but not earlier than ten days from the moment of placing of the report on results of carrying out of competition in a network the Internet (item 1 of item 32 of the Law about GCHP). Otherwise the public partner has the right (but is not obliged) to make the decision on refusal in making agreement about GCHP with the specified person (item 32 item 2).

The agreement consists with the winner of competition (or with other person if competition was not spent) in writing under condition of representation of the documents provided by the competitive documentation and confirming maintenance of execution of obligations under the agreement by it if such maintenance is provided by the competitive documentation (item 32 item 5). The agreement about GCHP becomes effective from the moment of its signing if other is not provided by the agreement (item 6 of item 32 of the Law about GCHP). Long procedure of occurrence of the civil-law status of the basic participants of state-private partnership - the public and private partner Thereby will come to the end.

However there are questions, when and how there is a conclusion of the direct agreement. Unfortunately, the Law about GCHP does not contain about it any positions. In our opinion, proceeding from the general sense of the Law about GCHP, the direct agreement consists already after making agreement about

GCHP between the public and private partner, as any grazhdanskopravovoj the contract. Such contract will be considered as the prisoner from the moment of the coordination of all its essential conditions including conditions and an order of interaction of participants GCHP during all term of realisation (and also changes, the terminations) agreements about GCHP. At the moment of its conclusion also there will be a civil-law status of third participant GCHP of the-financing person.

In the course of agreement execution about GCHP with inevitability there are the circumstances generating change or the termination of legal relations between participants GCHP. Such facts in the legal literature carry to risks which are born anyhow by participants GCHP at the introduction in corresponding правоотношения1. As is known, any obligation is accompanied by risk of default or inadequate execution.

As V.I.Rusakov marks, the objective theory of risk according to which the risk is a possible approach of negative consequences [270 [271] is most proved. Risk execution probably both private, and the public partner. Therefore according to Law item 13 about GCHP the agreement can be changed in two cases: 1) under the agreement of public and private partners (item 13 item 2); 2) under the decree in connection with the requirement of one of the agreement parties on the bases provided by the current legislation, the agreement (item 13 item 7).

Can be besides, changed and essential conditions of the agreement on the offer of the private partner. The public partner is obliged to consider such offers in following cases (item 13 item 3): 1) if agreement realisation became impossible in the terms established in it as a result of occurrence of force majeure circumstances; 2) in case of essential change of circumstances from which the parties proceeded at making agreement; 3) if the decisions which have entered validity

Vessels or federal antimonopoly body it is established

Impossibility of execution of obligations owing to decisions, actions (inactivity) of the state or municipal bodies, their officials.

The decision on change of essential conditions of the agreement

The decision on project realisation is accepted by the public partner after receipt of the offer of the private partner on the basis of the decision of public authority or the head of the municipal union, made. However change of essential conditions of the agreement, which leads to change of incomes or expenses of means of the budget (for example, the contract prices) [272], it is supposed only in case of modification of the corresponding law on the budget for corresponding fiscal year and the planned period (item 4, 6 items 13 of the Law about GCHP).

The law in item 13 item 5 provides the additional mechanism of protection of the rights of the private partner during agreement execution about GCHP. The private partner has the right to suspend agreement execution about GCHP before acceptance by the public partner of the decision on change of essential conditions of the agreement or before representation motivirovannogo refusal in such changes in cases if within thirty days after day of receipt of the offer the public partner has not made such decision or has not presented such refusal. Besides, the same right is given to the private partner in a case not notices by its public partner about the consideration beginning in a representative body of a question on the budget for the next fiscal year and the planned period (item 5 of item 13 of the Law about GCHP).

According to item 8 of item 13 the agreement on state-private partnership stops on following bases: 1) after the action expiry of the term; 2) under the agreement of parties; 3) in case of preschedule cancellation under the decree; 4) on other bases provided by the agreement. With a termination of the agreement about GCHP on the bases, statutory

0 GCHP, the civil-law status of private and public partners stops also. The termination of the civil-law status of the financing person is made at the moment of the termination of the direct agreement according to the general rules established in gl. 26, 29 GK the Russian Federation.

As mark J.E.Tuktarov and with. V.Dubinchina generated still before coming into force of the Law about GCHP judiciary practice on separate affairs testify to courts suppose possibility of an establishment the parties of the additional bases for agreement cancellation about GCHP, directly not specified in the Law, but defined as material breaches by the party соглашения1. Besides, observance of pre-judicial settlement of disagreements of the parties of the agreement in case the party

L

Wishes it to terminate, is obligatory. Executing such requirement of the Law, the party should direct to other party the prevention of preschedule cancellation which should include the following information: 1) what particularly the obligation is not executed or executed by inadequate image; 2) in what it is concrete actions (bezdejstvijah) default or inadequate execution by the agreement party is expressed; 3) term during which the party is offered to eliminate

3

The admitted infringements.

Let's notice, that to an adoption of law about GCHP the considerable share of disputes in the field of GCHP has been connected with cancellation kontsessionnogo agreements owing to material breach of the contract or essential change of circumstances [273 [274] [275] [276]. Thus the greatest complexity was represented by cases when in kontsessionnom the agreement there was no reference to corresponding infringement or change of circumstances as on the basis of cancellation of the contract. In similar cases references to item 450451 GK the Russian Federation with the subsequent proving of importance of infringement or change are inevitable. In this part courts recognised as material breach long nevnesenie kontsessionnoj payments, use of object of concession not to destination, and also infringement of terms of performance building работ1. At the same time in some cases courts refused to claimants in cancellation kontsessionnogo agreements [277 [278] [279], and also a recognition of the such

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Agreements void.rjad disputes in sphere GCHP on kontsessionnomu concern the agreement of losses, penalties and kontsessionnoj payments without cancellation kontsessionnogo agreements [280]. The Considerable quantity of disputes in the field of GCHP conclusion procedures kontsessionnogo agreements [281] concern. As marks V.V. Ershov, court by the legal nature and according to the Constitution "does not supervise" other public authorities, and protects the rights physical or legal лиц1. Thus it is necessary to agree with V.K.Andreeva's opinion according to which in Russia there are no bases for precedent introduction as the source of law, and it is necessary for vessels to use more widely the legal analogy and it is right [282 [283] [284]. The increasing role of analogy in the mechanism of civil-law regulation is underlined by V.A.Mikrjukov.

In our opinion, procedure of a termination of the agreement the Law about GCHP gives not enough attention in comparison with the Law about kontsessionnyh agreements [285]. For example, in the Law about GCHP unlike the Law about kontsessionnyh agreements there is no such basis of a preschedule termination of the agreement as the decision of the authorised body accepted in case default or inadequate execution by the private partner of obligations under the agreement has entailed injury of a life or to health of people or there is a threat of causing of such harm.

Considering, that the list of objects under the agreement about GCHP is much wider (item 1 of item 7 of the Law about GCHP), than the specified list of objects kontsessionnogo agreements (item 1 of item 4 of the Law about kontsessionnyh agreements), inadequate execution by the private partner of the obligations also can entail negative consequences for a life and health of citizens. As V.G.Golubtsov marks, the sphere of mutual relations of public subjects and the private capital which can be characterised as state-private partnership, is much wider than regulation sphere kontsessionnyh agreements. Besides, as marks V.V. Kilinkarov, the law about kontsessionnyh agreements provides the minimum set of admissible forms kontsessionnyh отношений1. Thus GCHP in its classical kind is much more more an effective remedy of creation of a favorable investment climate in the country, than kontsessionnoe agreement [286 [287]. Therefore the above-stated basis of a preschedule termination of the agreement about GCHP should be included in item 8 of item 13 of the Law about GCHP.

Besides, the Law about GCHP does not open the basis of a preschedule termination of the agreement about GCHP under the decree. In item 10 of item 13 the Law says only that it can be ceased under the decree in case of infringement of essential conditions of the agreement. In our opinion, in the law it is necessary to include the list of material breaches of conditions of the agreement both public, and the private partner at which the court can terminate ahead of schedule the agreement under the party in interest statement. Those certain actions or inactivity of the private or public partner (for example, infringement by the frequent partner of the obligation on transfer of object of the agreement to the property of a public orchestra after the term defined by the agreement, etc. can be.).

It is literally interpreting item 8 of item 13 of the Law about GCHP, it is possible to draw the following conclusion. In cases if under the agreement of parties to terminate the agreement it is impossible or according to the law replacement of the private partner has not been spent, it is necessary for public partner to address in court with the corresponding statement. It is necessary to agree with V.A.Mikrjukovym underlining, that «to harmonisation of the faced interests of participants of civil-law relations equal in rights the reference of the legal owner interested in protection to the third party which has been not connected with conflicting parties and capable to resolve or help with the resolution of dispute» 1 is natural. However specified in item 8 of item 13 of the Law about GCHP circumstances essentially worsen position of the public partner, aggrieve to public interests and inevitably generate litigation with all accompanying expenses. Therefore along with established in the item 13 Laws about GCHP the right of the public partner to make replacement of the private partner, we suggest to establish the extrajudicial procedure of cancellation of the agreement about GCHP in case of failure of justice of such replacement.

The expediency of fastening of the specified prerogative of the public partner speaks necessity of protection of public interests. The bases for change or contract cancellation judicially on request of one of the parties, the Russian Federations fixed in item 450-450.1 GK, do not consider specificity of legal relations of the state-private

Partnership as the public partner not in all cases can take advantage of them. In many foreign countries (for example, in Germany and France) the specified powers of the public partner are fixed in agreements about GCHP, regulated under the general rule by norms of the usual contract (private) right thanks to the concept double

Legal capacities of public body [288 [289]. Such concept allows public body to use the imperious powers, being the party under the civil-law contract. We will notice, that in GK the Russian Federation contains basic possibility of an establishment of advantage in a legal status of one of the contract parties to what item 4 of item 450 GK the Russian Federation directly testifies, and also item 534 GK RF.V any case with preschedule cancellation of the agreement about GCHP and the direct agreement the legal status of participants GCHP stops ahead of schedule.

Thus, as the basis of occurrence of the civil-law status of participants GCHP the system of the juridical facts forming difficult connected legal structure with effect of accumulation (as for occurrence of legal consequences corresponding juridical facts should not only exist simultaneously but also sustain a certain order of accumulation) and consisting of five consecutive stages (stages) acts: 1) the first stage (the first podetap - a direction of the offer on project realisation; the second podetap - consideration of the offer on project realisation; the third podetap - decision-making on possibility of realisation of the project); 2) the second stage (the first podetap - an estimation of efficiency of the project, the second podetap - definition of comparative advantage of the project); 3) the third stage (decision-making on project realisation); 4) the fourth stage (competition carrying out on the making agreement right about GCHP); 5) the fifth stage (making agreement about GCHP and the direct agreement). The civil-law status of participants of state-private partnership after the expiry of the term of the specified agreements or ahead of schedule stops.

2.2.

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A source: KAZAKOV ALEXEY OLEGOVICH. the CIVIL-LAW STATUS of PARTICIPANTS of STATE-PRIVATE PARTNERSHIP. The dissertation on competition of a scientific degree of the master of laws. Moscow, 2018. 2018

More on topic 2.1. The bases of occurrence and the termination of the civil-law status of participants of state-private partnership:

  1. concept and elements of the civil-law status of participants of state-private partnership
  2. CHAPTER 1. GENERAL PROVISIONS ON THE CIVIL-LAW STATUS OF PARTICIPANTS OF THE STATE-PRIVATE PARTNERSHIP
  3. CHAPTER 2. REGULJATIVNYE ELEMENTS OF THE CIVIL-LAW STATUS OF PARTICIPANTS OF STATE-PRIVATE PARTNERSHIP
  4. CHAPTER 3. GUARDING ELEMENTS OF THE CIVIL-LAW STATUS OF PARTICIPANTS OF STATE-PRIVATE PARTNERSHIP
  5. COSSACKS ALEXEY OLEGOVICH. the CIVIL-LAW STATUS of PARTICIPANTS of STATE-PRIVATE PARTNERSHIP. The dissertation on competition of a scientific degree of the master of laws. Moscow, 2018, 2018
  6. the rights and duties of participants of the state-private Partnership
  7. 1. Concept and system of participants of the state-private Partnership
  8. § 4. The bases of occurrence, change and the termination of civil matters on the Internet
  9. §2. The standard and juridiko-actual bases of occurrence of civil-law relations on obligatory state insurance of civil servants
  10. the Head І. The legal nature and the bases of occurrence of civil matters on obligatory state insurance of civil servants of military and law-enforcement services
  11. publicly-legal bases of the state-private Partnership in an oil and gas complex