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§ 2. The bases of occurrence and the termination of the rights of participation of the Russian Federation in economic societies

1. One of features of civil-law relations with participation of the Russian Federation in economic societies consists in the bases of their occurrence and the termination. From the previous reasonings follows, that the state can get the corporate rights in the same ways, as other subjects of civil law.

Among them it is necessary to name, for example:

1) entering of property as the contribution in ustavnyj the capital at establishment of an economic society;

2) acquisition of shares in the charter capital of a society with limited liability at increase in the charter capital of an economic society by entering of an additional payment;

3) acquisition of actions or a share in the charter capital of a society with limited liability under the civil-law contract (for example, under the contract of purchase), etc.

But, recognising at the same time the special statehood as participant of an economic society, it is necessary to find out and such ways of occurrence of the corporate rights which are characteristic only for it. Therefore within the limits of the present work it is obviously necessary to concentrate attention only to those from them which have a scientifically-practical problematics with reference to the state.

Among them it is possible to name acquisition of actions or a share in the charter capital of a society with limited liability:

1) as a result of privatisation of the state-owned property by transformation of the unitary enterprise to an economic society (item 13 of the Law on privatisation) [43];

2) as a result of privatisation of the state-owned property by entering of the specified property in ustavnyj the capital of an economic society;

3) owing to granting of budgetary investments (item 80 of the Budgetary code of the Russian Federation (further under the text - BK the Russian Federation)) [44];

4) at property nationalisation according to item 235, 305 GK

THE RUSSIAN FEDERATION;

5) as a result of heirless property inheritance in an order provided by item 1151 ist. 1176 GK the Russian Federation;

6) as a result of a confiscation as criminal or administrative legal proceedings (item 104.1 UK the Russian Federation [45], item 3.7 KoAP the Russian Federation) [46];

7) in view of the property reference in the income of the state as consequences of invalidity of the transaction (item 169 GK the Russian Federation);

8) in view of the property reference in the income of the state of property in which relation proofs of its acquisition on lawful incomes are not presented, and also property in which relation the data, their acquisitions confirming to legality (pi are not presented. 8 and. 2 items 235 GK the Russian Federation).

Consideration of the resulted list brings up a question on how correspond указаннвіе the bases of occurrence of the rights of participation of the Russian Federation in the business executive societies. In the first turns, attracts attention that in some cases these rights arise in rezulvtate the spent Russian Federation an investment policy and planning of structure of public property (working out the statesman of programs, the privatisation plan, the state employee of programs, nationalisation, etc.). Other situation with those rights of participation, которвіе the Russian Federation has got out of specified dejatelvnosti (inheritance, confiscation, the property reference in the income казнві, etc.).

Certainly, with chastnopravovvk positions has no value how the person has got corresponding корпоративнвіе the rights: it does not influence volume of the corporate rights. But whether this thesis is fair apply - telvno to state participation in the business executive societies? Reasonably polatati, that from the property got to a certain extent is casual, the state should osvoboditisja: if there is no public interest there is no interest in participation in the given economic society.

At the same time, the state, being the proprietor and suverenom, itself stojatelino defines expediency of possession that or other property and disposes of the corporate rights. At the same time in zakonoda - telistve there are no accurate mechanisms for definition sudvby the state-owned property. As truly marks And. V.Vinnitsky, duties to privatise superfluous public property it is not fixed basically. For lack of standards of security objects of the public property acceptance of the corresponding decision is based on wide diskretsii representatives state and munitsipalinyh bodies [47].

At last, alienation by the state of "not profile" actives under objective causes occupies time and till this moment need of realisation of the corporate rights does not disappear.

C these positions distinction in the bases of occurrence of the rights of participation of the Russian Federation is available. It is reduced to that some of these bases directly do not contact necessity of maintenance with the Russian Federation of public interests. So business is when the rights of participation of the Russian Federation in economic societies arise owing to inheritance, and also as a result of application of various legal sanctions (confiscation, the reference in the state income). Told, in turn, means, that with the assistance of the state in corresponding economic societies there is no special legal regime, and the Russian Federation does not get thereupon the additional corporate rights.

2. Obviously, as acquisitions some of special ways by the state of the corporate rights are more extended, than others. So, privatisation of the state enterprises and entering of property complexes into charter capitals of economic societies have received a wide circulation at all levels of the public property. It is, of course, caused by the big number of the unitary enterprises and property complexes, privatizeable.

On the contrary, such way of acquisition of the rights as reception of actions (shares in the charter capital) as heirless property inheritance in practice hardly probable meets. In the same plan it is possible to argue on acquisition by the state of the corporate rights in view of confiscation of actions or shares in the charter capital of a society with limited liability. The reason here, obviously, consists that criminal and administrative legislations consider confiscation as a measure directed mainly on withdrawal of the tool or means of a crime (offence). So, at the analysis of separate structures of criminal offences and administrative violations, orientation of the legislation to withdrawal of material carriers of a crime or an offence (for example is accurately visible, to counterfeit production, narcotics etc.) And also the equipment with which help the last have been made. Actions and shares in the charter capital in this quality cannot act, but can quite act as a subject of a crime (offence) or concern the property received as a result of fulfilment of wrongful acts [48].

At last, from civil law positions the property reference in the state income as the sanction, statutory for some void transactions is supposed. In judiciary practice it is possible to meet the approach recognising void under item 169 GK the Russian Federation of the transaction with actions, having for an object tax evasion [49].

At the same time, it is necessary to notice, the reference in the income of the state executed under the void transaction is essentially limited both in the law, and in judiciary practice. It, first, speaks the tendency which has outlined in the civil legislation of reduction of cases of application of confiscatory consequences which as it is marked, «in general are not peculiar to civil law» [50]. In this connection the reference in the income of the state executed under the void transaction is possible only in cases, statutory. So, under the current legislation confiscatory consequences are not applied as the general rule to: to the transactions opposite to bases of the law and order and morals (item 169 GK the Russian Federation), imaginary and to colorable transactions (item 170 GK the Russian Federation), to the transactions made under the influence of a deceit, violence, threat or adverse circumstances (item 179 GK the Russian Federation).

Secondly, it is known, that invalidity of the above-stated structures of transactions, as well as application of corresponding consequences, as a rule, it is put in dependence on presence or absence of intention in actions of the parties of the transaction, that considerably narrows possibility of application of confiscatory consequences, including from the point of view of judicial proving.

Thirdly, the law and judiciary practice essentially limit a circle of persons, having the right to demand application of consequences of invalidity of the transaction under item 169 GK the Russian Federation. So, in due time YOU the Russian Federation has limited the right of tax organs to the presentation of corresponding claims proved by that the transaction is made for the purpose of tax evasion, «as collecting in the income of the Russian Federation of all received (due) under the transaction is not a measure directed on maintenance of receipt in the budget of taxes» [51]. These and some other reasons have caused an extreme rarity of the reference of actions in the state income. Told, however, does not mean absolute impossibility of application of the given sanction. Moreover, expansion of application of item 169 GK the Russian Federation in future pravoprimenitelnoj to practice is not excluded.

Acquisition by the state of the corporate rights by nationalisation also meets now infrequently [52]. First, in public consciousness to nationalisation there was a negative relation, as to the violent withdrawal of property accompanied by mass infringement of the rights of citizens ("confiscation", "collectivisation", "raskulachivanie") [53]. At the same time in цивилизованнвіх laws and orders nationalisation is considered as the normal process alternating with privatisation and representing a way of change of a pattern of ownership »[54].

Secondly, nationalisation is traditionally considered as the social and economic measure of the general character directed on withdrawal at citizens and the organisations of only certain kind of property, as a rule, of things and property complexes (objects of the real estate, factories, factories, the enterprises).

Thirdly, domestic experience of nationalisation adheres to the approach at which in a state ownership the enterprise, that is «all property addresses, affairs and capitals of the enterprises where this property neither was and in what it nor consisted» [55]. The nationalisation which spent in territory of Crimea in 2014-2015 and has covered all about 250 objects of a private property [56] has been similarly issued. According to and. 1 Decisions of the State Council of Republic of Crimea № 1836-6/14 nationalisations come under from 26.03.2014 complete property complexes, other property of the enterprises, establishments, the agriculture organisations, located on territory of Republic of Crimea. At such approach the list natsionaliziruemyh objects joins the state enterprises, branches and branches of joint-stock companies. Thus, the described concept of nationalisation is directed on the reference to the property mainly property complexes, and also any other property belonging to private persons at which occurs totalvnoe nationalisation of known property («in what it concluded ev»).

On the contrary, in the European practice nationalisation assumes acquisition by the state korporativny the rights, estv actions. Such approach, in particular, was applied in France where throughout the second половинні it is saved up naibolvshy опвіт in this sphere XX century. So бвіла nationalisation of factories Reno, the companies of air transport ("Ayr-France", "Ayr-Blju" and "Ayr-Frans-Atlantik"), the French bank and of some others крупнвіх banks and кредитнвіх societies, etc. Законні is equipped and ордонаневі speak about transition in sobstvennostv the states of actions to nationalism емвіх the companies [57] 1945. Nationalisation directly движимвіх and real things in this case does not occur, however the state receives kontrolv over this property by means of korporativny the rights. Certainly, this approach printsipialvno differs from domestic and gives absolutely other legal effect. The state becomes vladelvtsem actions (shares in the charter capital), in которвіх consist korporativny the rights, but the proprietor movable and real estate pr°d°lzhaet ostavatisja a economic society. Herein nationalisation also forms the occurrence basis корпоративнвіх the rights. Obviously, with a post - change of legal registration of nationalisation will occur foamy refusal of the Russian law and order of a category унитарнвіх the enterprises and their replacement by the business executive of a society also. It, perhaps, will be oznachati transition to more convenient and democratic from the point of view rvshochnoj economy to an order. Told, certainly, does not cancel as between national-legal, and националвнвіх guarantees at nationalisation:

1) nationalisation should be made in public interests;

2) standard character of nationalisation (item 306 GK the Russian Federation) [58 [59];

3) nationalisation should be accompanied by indemnification;

4) the resolution of disputes about the size of indemnification court (item 1, item 306 GK

THE RUSSIAN FEDERATION).

3. It was above noticed, that one of the bases of participation of the state in charter capitals of economic societies is granting of budgetary investments according to the Budgetary code of the Russian Federation. Budgetary investments are understood as the budgetary funds directed on creation or increase at the expense of means of the budget of cost of the state (municipal) property (item 6 BK the Russian Federation).

Item 80 BK the Russian Federation provides granting of budgetary investments to the legal bodies who are not state both the municipal authorities and the state or municipal unitary enterprises. Granting of such investments as specifies item 80 BK the Russian Federation, «attracts occurrence of the right of the state or municipal property on an equivalent part authorised (skladochnyh) capitals» economic societies. This unsuccessful formulation should not mislead, however, as, as is known, participants of economic associations and societies get corporate, but not real rights on property of the legal person (item 48 GK the Russian Federation). Hence, it is a question of acquisition of the corporate rights by the Russian Federation in economic societies to which budgetary investments are given.

Not enough attention in the legal literature though its theoretical working out is dictated by practical reasons is given the legal design which have been put in pawn in item 80 BK the Russian Federation. First, budgetary investments are widely applied at all levels of budgets. So, from the federal budget of Russia for 2016-2017 granting of budgetary investments for the sum nearby 358 mlrd, roubles [60] is provided. These means, on - правляемвіе on realisation инвестиционнвіх projects on stroitelvstvu, to reconstruction and modernisation of objects kapitalvnogo buildings, are made out in the form of a payment of the Russian Federation in charter capitals of economic societies. Secondly, proceeding from a principle of completeness of reflexion of incomes, expenses and sources of finance of deficiencies of budgets (item 32 BK the Russian Federation) follows, that granting of budgetary investments - the basic way of acquisition by the state of actions and shares in the charter capital of economic societies at their payment in the monetary form.

At the same time the legal characteristic of budgetary investments has a number of the features limiting sphere of application of this institute. Limitation of application budgetary investments finds out itself in several circumstances:

1) budgetary investments, being one of forms of budgetary appropriations, have the monetary form (item 6, 79 BK the Russian Federation). From here, for example, budgetary investments cannot consist in transfer of other, rather than property money (movable and real things, property complexes, securities, property rights, etc.);

2) budgetary investments are given exclusively on the terms of target use. These are investments into objects of capital construction and (or) on acquisition of objects of real estate at the expense of budgetary funds (ch. 1 items 80 BKRF);

3) the addressee of budgetary investments can be de jure existing legal body. Differently, budgetary investments cannot be directed on creation of the legal person. This conclusion is distinctly traced in one of the affairs considered by Federal arbitration court of the Ural district. In this dispute, court, discriminating the contract «about participation the public law in go formations in an economic society» and the articles of incorporation about creation of an economic society, have come to conclusion about invalidity of the articles of incorporation concluded by municipal union as it is directed on participation of municipality in creation of a society with limited liability that the Russian Federation [61] mismatches positions of item 80 BK.

In this connection granting of budgetary investments with grazhdansko - legal positions means acquisition of the corporate rights as increase in the charter capital of an economic society, while establishment (creation) of economic societies probably in other forms of budgetary appropriations (for example, within the limits of realisation of programs of development etc.).

The legal relation mechanism at budgetary investment also possesses a number of features. At first sight, granting (reception) of budgetary investments, that is the money resources belonging to public formation, in itself already forms the basis for occurrence of the civil rights and duties, namely the rights connected with participation in an economic society between the shareholder (participant) and the legal body. However, in item 80 BK the Russian Federation is available also a number of the reference norms having great value at definition of an order of acquisition by the state of the corporate rights. The analysis of these norms shows, that behind acquisition by the state of the corporate rights there is a whole set of juridical facts different in the nature:

1) the budgetary certificate of public formation providing allocation to the concrete legal body of budgetary funds (investments) (the law or the decision on the budget of corresponding level);

2) the contract between public formation and the legal body about granting of budgetary investments;

3) legal registration of an accessory of a share publichnopravovomu to formation in authorised (skladochnom) the capital of the legal person according to civil zakonodatelvstvom.

C the points of view of the doctrine about juridical facts, together to a capture, they are legal structure, estv sovokupnostvju juridical facts, необходимвіх (and достаточнвіх) for approach of statutory legal consequences [62]. Moreover, the described legal structure is difficult, in which juridical facts складвіваются in defined posledovatelvnosti. Absence of any link in this chain does not generate необходимвіх правоввіх consequences. So, absence of the contract issued when due hereunder about participation in an economic society forms the basis for an unaccordance the state employee of investments (and. 3 items 80 BK the Russian Federation). The accepted budgetary certificate in judiciary practice also is considered as the integral condition right occurrence publichnopravovogo formations on a share in the charter capital of an economic society.

From materials of the business considered by Federal arbitration court of the Central district, follows, that in 2006 between the municipal unitary enterprise of housing and communal services «Service of the customer» and 14 administrations of municipal unions of Smolensk area the contract on Open Company establishment «Municipal systems of municipal union« Smolensk area »has been concluded. One of participants of a society - the Koshchinsky rural settlement as the contribution in ustavnyj the capital has transferred 10 000 rbl., and also movable and real estate according to reception-transfer certificates.

In 2012 the Koshchinsky rural settlement has sued to the Society about a recognition void certificates of reception-transfer of the municipal property brought as the contribution in ustavnyj the capital and about its return. The courts considering case, have established, that the basis of entering of property in ustavnyj the capital of the respondent бвіло the decision of Council of deputies Koshchinsky selvskogo settlements according to which the body has agreed to participation of settlement as the founder of a society by entering into it ustavnyj the capital денежнвіх means in the sum of 10 000 roubles, and also disputable property according to the appendix. Courts, however, ссвілаясв on absence accepted when due hereunder Council of deputies Koshchinsky selvskogo settlements of the law (decision) about ввіделении the state employee of investments to the formed legal body with instructions of the name of the legal person, volume and the purpose ввіделеннвіх means, have satisfied the claim [63].

Last stage in realisation of considered legal relation - legal registration of an accessory of actions (shares in the charter capital). In view of abusings meeting in practice with сторонні addressees the state employee of the investment essential value are got by transfer of stock to public formation. C the moment of the state registration dopolnitelvnogo securities issue public formation has the right trebovatv transfers of stock according to the contract on participation of public formation in the property of the subject of investments. In a case if transfer of stock becomes impossible admissible a presentation public formation kondiktsioinogo the recovery suit of the money resources given as budgetary investments. In particular, similar claims meet in judiciary practice in cases when the state body has given up in registration of securities issue or when the joint-stock company has made the decision on liquidation of a society, etc. [64].

4. Among the bases of acquisition by the state of the rights of participation in the business executive societies tsentralvnoe state-owned property privatisation has value.

Among all ways of privatisation with creation of the legal person svja - занві directly two. Во-перввіх, privatisation can бвітв is made in rezulvtate transformations of the unitary enterprise in открвітое joint-stock company or in a society with limited otvetstvennostvju (pi. 1, 1.1 and. 1 items 13, item 37 of the Law on privatisation). Во-вторвіх, privatisation can бвітв is realised by means of entering of the state-owned property as the contribution in уставнвіе капиталві открвітвіх акционернвіх societies (pi. 9 and. 1 items 13, item 25 of the Law on privatisation). In the ocheredv, state-owned property entering in уставнвіе капиталві the business executive of societies can osushchestvljatvsja: (1) at establishment открвітвіх акционернвіх societies and (2) as payment размещаемвіх дополнителвнвіх actions at increase a moustache - тавнвіх capitals акционернвіх societies (and. 2 items 25 of the Law on privatisation).

Similarity between two ввішеназваннвіми in the ways of privatisation consists that in both cases there is a change формві properties, namely - the property belonging to public formation, becomes sobstvennostvju other (private) subject in exchange for actions or shares in уставнвіх capitals of economic societies. TSelv public formation at both named ways same: peredatv property in private hands, having reserved lishv the corporate rights (with vozmozhnostvju their subsequent alienation). The analysis privatisation zakonodatelvstva on - казвівает, that many of its norms оказвіваются the general for both ways of privatisation.

Printsipialvnoe distinction between two these ways of privatisation consists that in the first case privatisation occurs at the expense of the state-owned property, before fixed to the unitary enterprises, that causes assignment between the enterprise and an economic society created in the course of privatisation ("clothes" of the legal person) [65] change. On the contrary, in case of entering of public property as the contribution in уставнвіе капиталві the business executive of societies rechv goes about privatisation of unallotted property publichnopravovogo formations and about creation of the new subject of civil law in the form of joint-stock company. Thus, at the first variant assignment is universal, at the second - singular.

About a place of privatisation among the bases of occurrence of the corporate rights of the state in civil law there was no common opinion. In pravoprimenitelnoj to practice quite often there is the legal position considering privatisation as the unique way of acquisition by the state of the corporate rights. The assistant to the Public prosecutor of Sverdlovsk area has addressed in Arbitration court of Sverdlovsk area with the claim about annulment of articles of incorporation of a society "UZHK" Novouralsk »from 05.06.2009, and also about a recognition of the void (insignificant) transaction on entering of the contribution of Novouralsk city district in ustavnyj the society capital« UZHK "Novouralsk", issued by the payment commission from 23.12.2009 № 284. The assistant to the Public prosecutor of Sverdlovsk area also asked to apply consequences of invalidity of the above-stated transaction, having obliged a society "UZHK" Novouralsk »to return in treasury of Novouralsk city district 25 000 rbl.

Satisfying the declared claims, the trial court recognised that participation of municipal union as the founder of a society with limited liability outside the limits of privatisation by the current legislation is not provided. Having reviewed business, the court of appeal instance in satisfaction of claims has given up, recognising that according to ch. 4 items 51 of the Federal act from 06.10.2003 № 131-FZ «About the general principles of the organisation of local government in the Russian Federation» [66], item 80 BK the Russian Federation munitsipalvnoe formation have the right uchastvovatv in creation the business executive of societies.

The federal arbitration court of the Ural district recognised conclusions of court of appeal instance erroneous. The court of court of cassation, in particular, has specified, that limits of realisation of the civil rights of public formations, including on participation in economic societies, items 217 PS the Russian Federation are limited by the law, in particular. And further: «the System analysis of the named rules of law allows to draw a conclusion that the municipal union cannot be the participant of those economic societies in which relation the legislator directly has not expressed possibility of participation in them» [67].

The similar conclusion contained one of circulars of Presidium YOU the Russian Federation. With reference to concrete business in it it is underlined: «As the legislation on privatisation does not suppose entering of the state (municipal) property in ustavnyj the capital of the economic societies which have been not created in the course of privatisation, court obosnovanno has made the decision on invalidity of constituent instruments regarding building entering in ustavnyj the capital of a society and has returned disputable property in the municipal property» [68].

Difficultly to find it litiko-is right voe a substantiation of such limited interpretation of the norms applied by vessels. Probably, partly it speaks aspiration of vessels to protect interests of treasury from a various sort of frauds with treasury means, etc. In this sense privatisation thanks to "transparency", certainly, has some advantage.

At the same time in a civil law science the opinion that participation of the state in economic societies is not limited to privatisation transactions for a long time has been expressed. The opinion that acquisition by the state of the rights of participation in the legal body is possible and behind frameworks of privatisation legal relations has been stated, in particular, to A.A.Sysa, I.I.Pyshkinym, O.I.Grishchenko and N.E.Kantor specifying in optionalities ch. 1 items 217 of the Code [69]. It is obvious, so V.A.Belov who writes, that «theoretically myslimo considers also acquisition of shares of participation (actions) as well in the secondary market» [70].

The opinion of it of some authors follows priznati pravilvnym in view of not - skolvkih obstojatelvstv. First, zakonodatelvstvo in some cases supposes creation of economic societies besides the Law on privatisation. So, for example, already upominalasv item 80 BK the Russian Federation. As other example it is possible ukazati item 68 Federalvnogo of the law «About the general principles of the organisation of local government in the Russian Federation» according to which predstavitelvnye bodies munitsipalvnyh formations for the joint decision of questions of local value can prinimatv decisions on establishment between munitsipalvnyh economic societies. Thus both in that, and in other case the law does not reserve distribution of operation of law about privatisation on corresponding relations. Moreover, the Law on privatisation (and. 4 items 3) indirectly suppose acquisition possibilities public formations of the corporate rights on another standard-legal grounds.

Secondly, does not follow zabyvatv that the Law on privatisation has the limited sphere of application. It, for example, cannot bytv is applied to those cases when as the contribution in ustavnyj the capital money resources are brought, and also separate kinds of property on which the legislation on privatisation (Law item 3) does not extend.

Thirdly, it is necessary to consider, that the specific mode of creation and activity of economic societies as privatisation is not capable to answer to the full to state problems in market economy. Changes of an economic situation can demand from the state of measures on support of manufacture, market stabilisation etc. One part of these measures contacts rendering of financial support to some organisations, another - with creation by the state of the economic societies, which purpose is business support (microfinancing, granting of grants) [71]. Creation of these organisations also is not connected with the Law on privatisation.

Fourthly, the narrow approach to a discussed question does not prove to be true real practice of creation of the state economic societies. On one of affairs the arbitration court has applied item 124 positions, 125 GK the Russian Federation, and. 5 Decisions of Plenum YOU the Russian Federation № 19 from 18.11.2003 also has given up to the public prosecutor in the claim about decision annulment about participation of Republic Altai in open joint-stock company «Agency on hypothecary housing crediting».

From materials of this business follows, that the specified society is created in November, 2002 on the basis of requirements of the Government of the Russian Federation and enters into federal system of hypothecary housing crediting in roles of the regional operator. The basic requirement to the regional operator is presence at local (regional) administrations not less than 51 % of size of the charter capital of the open joint-stock company, allowing to exercise administration and the control over the regional operator and to influence acceptance of decisions by it. The society has for an object the activity the decision of housing social problems by increase in availability of credit resources and development of the market of habitation in republic territory.

The public prosecutor of Republic Altai in a claim substantiation has specified that the given decision mismatches requirements and. 4 items 66 GK the Russian Federation, and. 1 items 10 of the Federal act from 26.12.1995 № 208-FZ «On joint-stock companies» (further under the text - the Law on joint-stock company); entering of money resources in ustavnyj the capital of a created society contradicts item 69 BK the Russian Federation and is no-purpose use of the republican budget. According to the public prosecutor, the state bodies cannot act as participants, including founders of economic societies, except for cases when they are founders of the joint-stock companies created in the course of privatisation according to the legislation on privatisation.

The court motivated non-suit by that the society "AIZHK" is created with a view of development of system of hypothecary housing crediting in the Russian Federation approved by the Governmental order of the Russian Federation from 11.01.2000 № 28 «About measures on development of system of hypothecary housing crediting in the Russian Federation». To execute the given certificate the Government of Republic Altai 05.11.2002 the decision № 326 «About participation of Republic Altai in open joint-stock company« Agency on hypothecary housing crediting »is accepted. It is entrusted to state committee of Republic Altai on management of the state-owned property to speak on behalf the Government of a name of Republic Altai the founder of the given society and the holder of a share holding for the sum of 51000 rbl., having brought it in the register of a state ownership of Republic Altai. In connection with the specified circumstances the court recognised as lawful creation of joint-stock company [72].

Fifthly, it is necessary to recognise, that privatisation carries considerable social and political implied sense. Economic and social value of privatisation consists in that by transfer of the state enterprises to private hands to create conditions for development of the private property, the competitive environment of the free market. From here privatisation (no less than nationalisation) becomes one of state policy implementers. In Russia privatisation became sistemoobrazujushchim the factor of formation of market relations. Therefore privatisation process carries a temporality and action of the privatisation legislation cannot last eternally.

Summing up the stated reasons, it is necessary to recognise correctness of the point of view considering privatisation not as the only thing, and as one of the several bases of occurrence of the rights of participation of the state in economic societies. Such pluralistic concept to the full considers both the general principle of equality of subjects of civil law, and separate rules of law in which this principle is embodied [73].

5. Separate discussion is demanded by a question on the termination of the rights of participation of the state in economic societies. Like the occurrence, these rights can stop on the general bases, with that only a difference, that transactions on alienation of actions fall under a special order of their fulfilment according to the Law on privatisation. So, among the ways of privatisation attracting the termination of the corporate rights of item 13 of the Law names:

1) sale of actions of joint-stock companies at specialised auction;

2) sale outside of territory of the Russian Federation of actions of joint-stock companies being in a state ownership;

3) sale of actions of joint-stock companies by results of confidential management.

Thus, if to adhere to system interpretation of norms of the specified Law, the conclusion that sale of shares in charter capitals of societies with limited liability follows, falls, on the one hand, under action of norms about privatisation, and norms of the Federal act from 08.02.1998 № 14-FZ «About societies with limited liability» (further under the text - the Law on Open Company) - on the other hand (ch. 4 items 21).

According to ch. 11 items 43 of the Law on privatisation to sale of shares in the charter capital of a society with limited liability are applied rules about primary the right of their acquisition, and in default from this right - rules about carrying out of auction [74].

A little business in a case with sale by the state of actions of not public joint-stock company in that case when the charter of this society provides the right of priority of other shareholders (ch differently is. 3 items 7 of the Law on joint-stock company). Item 43 of the Law on privatisation has no instructions in this respect. Nevertheless, sees, as to actions of not public society of item 43 of the Law on privatisation it should be applied by analogy.

The problem, however, consists that item 7 of the Law on joint-stock company speaks about any vozmezdnom alienation of actions, and item 21 of the Law on Open Company (especially in the interpretation given to it by judiciary practice) - only about cases of purchase and sale of a share. At such approach use of similar legal designs attracts various consequences. So, alienation of actions as a compensation comes within the purview of norms about the right of priority while alienation of shares in the charter capital of a society with limited liability - is not present [75].

The incident on which circumstances as participants of Open Company "Visit-moskva" Moscow (claimant) and the Moscow area (respondent) acted is indicative in this plan. The respondent on the basis of own decision has contributed the share in the charter capital of Open Company "Visit-moskva" at a rate of 13,4 % as the contribution in ustavnyj the capital of newly founded open joint-stock company "ARMO-INVEST". The claimant believed, that its right of priority to acquisition of the specified share thereby is broken. The decision from 31.08.2007 YOU the Russian Federation have given up in the claim, having referred that the claimant has not presented to court of proofs of the right of priority of purchase of a disputable share as it is not provided by the legislation [76].

This approach based on limited interpretation of item 21 of the Law on Open Company and supported in judiciary practice and in the literature, it is necessary to recognise erroneous communications with several circumstances. The first - such understanding pushes participants of the civil circulation on fulfilment of simulated contracts and the colorable transactions directed on cover of purchase and sale when in a fictitious contract role acts, for example, donation. The second - specificity of the most organisation-legal form of a society with limited liability is predetermined a close connection between participants. This feature of internal relations between participants also should cause the right of priority of participants of a society with limited liability on share acquisition at everyone it vozmezdnom alienation [77]. From here, the decision used in item 7 of the Law on joint-stock company sees more successful. Obviously, it should be considered at unification of norms of the corporate right.

C the account of it, within the limits of practical recommendations and from the point of view of unification of norms of the corporate right follows:

() rasprostranitv a rule ch. 11 items 43 of the Law on privatisation about the right of priority of shareholders to acquisition of actions of not public joint-stock company belonging to the Russian Federation, and at refusal of this right - a rule about sale of actions by auction carrying out;

() rasshiritv item 21 of the Law on Open Company, having covered it all cases vozmezdnogo share alienations in the charter capital of a society with limited responsibly stvju.

6. C the theoretical point of view the question on possibility of an exit and an exception of the state of a society with limited responsibly - stvju and not public joint-stock company is interesting. Speaking about ввіходе from a society with limited otvetstvennostvju, it appears, that for the state such right operates according to general rules, opisannvsh item 94 GK the Russian Federation, item 26 of the Law on Open Company. At the same time, ввіход becomes objazannostvju the states when participation of the state in a society becomes impossible owing to any obstojatelvstv. So, in case of decision-making on transformation of a society in the general partnership or production co-operative, state participation comes under to the termination [78]. The law, however, does not contain instructions in this respect. Sees, that оптималвнвім правоввім the mechanism of the permission of such situations the design, ispolzue - in item 23 of the Law on Open Company could May бвітв. It is necessary to provide, that the society has been obliged to get on request of the participant-state a share belonging to it in connection with transformation of a society to the general partnership or production co-operative [79].

In a special way business with an exception of the participant-state of an economic society is. Certainly, in обвічной situations state participation in the business executive societies is not accompanied by gross violations of the duties by it that is why the bases for an exception do not arise. At the same time, operating edition and. 1 item 67 GK the Russian Federation has expanded ploshchadv applications of corresponding institute, having specified, that the exception bases also can bytv: (1) actions which have done essential harm to a society; (2) actions which have essentially complicated dejatelvnostv societies or achievement of the purposes, for the sake of which it sozdavalosv. Such formulations quite can statv an occasion to a presentation of claims to the state about an exception of a society. Certainly, for maintenance of the corporate control over a society, participation in which is caused by strategic interests, the state aspires obladatv kontrolvnym a share holding (a share in the charter capital), that, from positions of today's judiciary practice, parries the claim about an exception [80].

At the same time возможнві cases when the claim about an exception can бвітв it is shown the Russian Federation as to the owner to "the gold action» (in particular, at ispolvzovanii the rights "veto") and others специалвнвіх the rights. In such situation the state possesses to 25 % of actions, or in general them does not possess. There is a question, whether it is possible iskljuchitv the state if it, ispolv - zuja the special rights, does essential harm to a society or the actions essentially complicates society activity?

The state is quite expected, that, objecting to the claim, will refer to public interests, necessity of fulfilment of challenged actions with a view of maintenance of defensibility and safety of the state and so forth

There are also other complexities. In particular, with reference to such basis of an exception as fulfilment of the actions essentially complicating achievement of the purposes of a society, can be opened a divergence between the state and participants in a question on the purposes of activity of a society. Therefore in conditions of the antagonism which is objectively present at the mixed companies, it would be quite logical to expand, on the one hand, dispositions of corresponding norms at the expense of the actions breaking interests not only the society, but also its other participants (shareholders), and, on the other hand - to limit in view of special position of the state caused by public interests.

Anyway, at the decision of the put question it is necessary to start with sense of the institute of an exception of the participant from an economic society. First, it is necessary to accept position that the exception is an influence extreme measure in relation to the participant [81]. In - the second, the liberal position according to which even considerable participation in the capital of a society does not give carte blanche on abusings [82] is preferable.

Proceeding from these reasons, the unequivocal answer to a question on possibility of an exception of the state from an economic society is hardly possible. Anyway, the claim about an exception should be estimated by court taking into account concrete circumstances of business. In quality of the reference point dividing validity and groundlessness of the claim about an exception it is possible to offer subjective criterion - presence or absence from the intention state to harm a society or its other participants (shareholders). From here follows, that the claim about an exception of the Russian Federation comes under to satisfaction if it will be proved, that at realisation of the special (additional) rights the respondent operated exclusively with intention to harm a society or other participants (shareholders) of a society. Differently, the state can be excluded from an economic society if it is proved, that it purposely operated on purpose to harm a society or other participants. C the help of the specified rule reaches balance of interests of the Russian Federation, on the one hand, and interests of other shareholders (participants), and also the most economic society - with another. We will notice, that the told does not cancel possibility of an exception of the state under general rules of item 67 GK the Russian Federation when harmful actions of the state are not connected with realisation of the special rights by it.

The basic conclusions:

1. It is necessary to recognise correctness of the point of view considering privatisation not as the only thing, and as one of the several bases of occurrence of the rights of participation of the state in economic societies.

2. Granting of budgetary investments as the basis of occurrence of the corporate rights of the Russian Federation forms the difficult legal structure consisting of several facts: () the budgetary certificate of public formation about granting of budgetary funds; () the contract on granting of budgetary investments; () legal registration of an accessory to the share state in the charter capital.

3. Nationalisation of actions (shares in the charter capital) in charter capitals of economic societies has obvious advantages in comparison with nationalisation movable and real things, the enterprises (property complexes) and gives absolutely other for the state legal effect.

4. It is necessary rasprostranitelno to interpret a rule ch. 11 items 43 of the Law on privatisation and to admit realisation of rights of priority of shareholders on acquisition of actions of not public joint-stock company belonging to the Russian Federation, and at refusal of this right - a rule about sale of actions by auction carrying out.

5. In case of decision-making on transformation of an economic society in the general partnership or production co-operative state participation comes under to the termination. Thus оптималвнвім правоввім the mechanism of the permission of such situations the design, ispolvzue - May in item 23 of the Law on Open Company, providing objazatelvstvo societies ввікупитв a share of the leaving participant could бвітв.

6. The claim about a state exception comes under to satisfaction if it will be proved, that at realisation специалвнвіх (дополнителвнвіх) the rights the respondent operated iskljuchitelvno with intention prichiniti harm to a society or ostalvnvsh to participants (shareholders) of a society.

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

More on topic § 2. The bases of occurrence and the termination of the rights of participation of the Russian Federation in economic societies:

  1. § 3. Realisation by the Russian Federation of the rights of participation in economic societies [83]
  2. Chapter 1. General provisions on participation of the Russian Federation In economic societies
  3. § 1. The rights to a foreign currency: the bases of occurrence, change and the termination
  4. § 3. The bases of occurrence of corporate information legal relations in activity of economic societies
  5. 3.1. Features of inheritance of the rights connected with participation of the estate-leaver in economic associations, societies and production co-operatives
  6. Lambaev ZHargal Tumunovich. PARTICIPATION of the RUSSIAN FEDERATION In ECONOMIC SOCIETIES: CIVIL-LAW ASPECT. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2018, 2018
  7. the Chapter II LEGAL BASES of PARTICIPATION of CUSTOMS BODIES In MAINTENANCE of ECONOMIC SAFETY of the RUSSIAN FEDERATION
  8. CHAPTER 2. The BASIC CHARACTERISTIC of PROTECTED OBJECTS And the BASES of OCCURRENCE And the TERMINATION of the INTELLECTUAL RIGHTS
  9. § 3. Classification of economic societies with the state Participation
  10. 2.1.3 Federal act «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» and the suffrage of subjects of the Russian Federation
  11. § 1. Concept of economic societies with the state participation and features of their civil legal capacity
  12. § 4. The bases of occurrence, change and the termination of civil matters on the Internet
  13. § 1. Forms of participation of customs bodies of the Russian Federation in maintenance of economic safety
  14. § 2. Economic societies in system of the commercial organisations with the state participation [131]
  15. the bases of occurrence and the land easement termination.
  16. § 1. Public interests as a basis of participation of the state in economic societies
  17. the bases of occurrence, change and the termination of legal relations on compulsory insurance of a life and health of citizens
  18. 2.1. The bases of occurrence and the termination of the civil-law status of participants of state-private partnership
  19. Chapter 2. Features of a legal status of economic societies With the state participation
  20. § 1. Preconditions and the bases of occurrence and the termination of corporate legal relations.