<<

the rights and duties of participants of the state-private Partnership

G the osudarstvenno-private partnership is carried out by means of execution public and private by partners of the agreement on state-private partnership. Thus the major role is played by the rights and duties of its participants - the private and public partner, and also the financing person in case of the conclusion participants of the direct agreement.

As it has been specified earlier, the civil-law status of participant GCHP under the characteristic is a version of the special (patrimonial) civil-law status for owing to its law can receive only limited circle of subjects of law. By analogy to differentiation of the general and special civil-law status of participants GCHP discriminate also the general and special rights and duties of participants GCHP. General laws and duties belong to participants GCHP as to subjects of civil law in general, without dependence from participation of such persons in GCHP. Such rights and duties are regulated in GK the Russian Federation and others is standard - legal acts.

The special rights and duties of participants GCHP-it the special rights and the duties reflecting specificity GCHP, supplementing both developing general laws and duties of participants GCHP as subjects of civil law. Being is standard fixed in the Law about GCHP, they are the basic reguljativnym an element of the civil-law status of participants GCHP.

According to the agreement about GCHP the private and public partner take up a number defined, korrespondirujushchih it is each other right also duties. Thus interaction rules between participants GCHP are accurately differentiated. The private partner introduces the financial resources (investments) in project GCHP, as the contribution of the public partner to project GCHP organizational possibilities of the state (municipal union) act.

Interest of the private partner in realisation of projects GCHP is mainly shown in regular long-term reception of profit owing to long term of project GCHP. She allows the private partner to plan strategically the activity not only within the limits of the concrete GCHP-PROJECT, but also concerning all its enterprise activity. Condition presence about transfer to the property of the private partner of object GCHP generates strategic interest of the private partner in the appropriate maintenance of object of partnership and successful development of all project GCHP. Besides, presence grazhdanskopravovogo the status of the private partner gives to the businessman chance to go through the crisis periods in development of economy and possibility to leave on new commodity markets of production.

Many scientists-researchers (on an example kontsessionnyh agreements) in a question of the rights and duties of participants GCHP pay special attention on the civil-law status of the public partner. As A.I.Popov specifies, źat decision-making on making agreement on the state GCHP acts as body vlastvovanija, publishes the certain certificate, and already at making agreement acts... As the subject of civil law also becomes a part of the civil-law relation╗ 1. As a whole discussion round the civil-law status of the public partner is reduced to two points of view: one researchers believe, that the special status of the public partner assumes necessity of preservation behind it of the certain powers caused by public interest within the limits of execution of the agreement about GCHP [290 [291] [292], others - that the assumption of similar positions contradicts a principle of settlement of the agreement about GCHP as civil-law contract.

In our opinion, neither that, nor other point of view is not true. As is known, on the party of the public partner the state and municipal unions from which name corresponding bodies operate can act only. At the same time owing to item 125 GK the Russian Federation, and also item 4 of item 5 of the Law about GCHP the separate rights and duties of the public partner can be carried out by bodies and the separate legal bodies authorised by the public partner. The list of such subjects is established by the Government of the Russian Federation. On the party of the private partner owing to law express indication there can be only a legal body. It is interesting, that earlier in the draught federal law about GCHP as the private partner by developers of the bill the individual businessman was considered. To this circumstance pay attention and in legal литературе1.

In our opinion, the given norm of the Law about GCHP is formulated insufficiently clearly and does not allow to estimate unequivocally civil-law consequences such źdelegation of powers╗ as realisation of the separate rights and duties of the public partner can be interpreted and as transfer of a part of the rights and duties under the agreement in favour of such persons (gl. 24 GK the Russian Federation), and as a condition about the third party beneficiary contract (item 430 GK the Russian Federation) and about execution by the third party (item 313 GK the Russian Federation), and as representation. In our opinion, the given norm means, that the bodies authorised by the public partner and legal bodies represent itself as representatives of the public partner. It is interesting, that in practice there are cases of delegation of powers not only public, but also the private partner [293 [294].

It is necessary to tell, that the Law about GCHP resolves in the interesting image also a question on plurality of persons on the party of the public partner. As well as the law on concessions, it does not suppose such plurality, however in Law item 20 about GCHP the variant of joint competition on the making agreement right about GCHP which spend two and more public the partner on the basis of the agreement among themselves is provided. Feature of joint competition that each public partner enters into the separate agreement with its winner about GCHP (item 3 of item 20 of the Law about GCHP). Thereby proves to be true, that relations between participants GCHP leave far for agreement frameworks about GCHP. Though the last is pravoobrazujushchej the basic of such relations, (including in the form of joint competition on the making agreement right about GCHP) such agreement does not cover precontractual relations of participants GCHP.

Despite the different civil-law status of parties GCHP, in its frameworks they mainly act as subjects equal in rights as their joint cooperation is based on a principle of voluntary participation of the private partner, association of resources of partners for achievement of socially significant purposes GCHP and fair distribution of risks among themselves. As marks A.E.Kirpichev, participation of public subjects in obligations extends to them a mode of the obligations connected with realisation of enterprise activity [295]. At the same time the public partner plays the leading part in the course of preparation and making agreement about GCHP. In most cases he is engaged in working out of the offer on realisation of project GCHP, defines its parametres, participates in process of the organisation of competition on the making agreement right about GCHP. Besides, the public partner supervises agreement execution about GCHP. Thus such control is carried out within the limits of the rules established by the current legislation.

The general maintenance of special obligations of the private and public partner is opened in item 12 item 1. According to the agreement about GCHP the private partner undertakes to create in full or in part at the expense of own or involved means the agreements being object technologically connected among themselves real estate and (or) real estate and a personal estate, to carry out operation and (or) maintenance service of such property. In turn, the public partner undertakes to give to the private partner of the right of possession and using to them for realisation of the activity specified in the agreement and to provide occurrence of the property right of the private partner on object of the agreement under condition of observance of the requirements provided by the current legislation and the agreement.

Under the party agreement also undertake to execute other obligations which follow from defining the form gosudarstvennochastnogo partnership of elements of the agreement which the Law about GCHP subdivides on obligatory (essential) and facultative. On the basis of the specified it is necessary to subdivide the rights and duties of participants GCHP into the cores which are coming under to obligatory inclusion in the agreement about GCHP, and additional, included in the agreement about GCHP at the discretion of the parties depending on concrete project GCHP.

Let's notice, that obligations within the limits of GCHP carry signs strukturnoslozhnyh обязательств\Права and duties of the private partner are korrespondirujushchimi in relation to the rights and duties of the public partner. Nevertheless, as that list of the rights and duties of participants GCHP is absent. The rights and duties of the parties of the agreement about GCHP can be revealed only from the maintenance of item 6 and Law item 12 about GCHP in which conditions and elements of such agreement are regulated.

Among obligatory elements of the agreement about GCHP the law defines fundamental laws and duties of exclusively private partner (item 6 item 2):

1) building and (or) reconstruction (further also - creation) object of the agreement the private partner; 2) realisation by the private partner of full or partial financing of creation of object of the agreement;

3) realisation by the private partner of operation and (or) maintenance service of object of the agreement; 4) occurrence at the private partner of [296] property rights to object of the agreement under condition of object encumbrance by is social-significant obligations.

On a being, the basic duty of the private partner in sense of the Law about GCHP is creation of object of the agreement. However the being of this concept causes some questions. If it is possible to consider concept "building" settled, assuming creation of buildings, structures, constructions źfrom zero╗ the concept "reconstruction" of a context of the studied Law causes some questions. The law about GCHP does not give definition of the given concept unlike the Law about kontsessionnyh agreements which kontsessionnogo agreements carries actions for its reorganisation to object reconstruction on the basis of introduction of new technologies, mechanisation and automation of manufacture, modernisation and replacement of the obsolete and physically worn out equipment with new more productive equipment, to change technological or an object functional purpose kontsessionnogo the agreement or its separate parts, other actions for improvement of characteristics and operational properties of object kontsessionnogo the agreement. We believe, that the made definition is not quite successful, as allows to come to conclusion, that the personal estate can be object of reconstruction not only immovable, but also.

The approach selected the legislator in the Town-planning code of the Russian Federation is more comprehensible. The law subdivides reconstruction into two kinds: reconstruction of object of capital construction (item 14) and reconstruction of linear object (item 14.1). Such reconstruction as a whole means change of parametres of objects, and also their parts. It is remarkable that the Town-planning code carries to number of objects of reconstruction only real estate. The same approach, obviously, is used in GK the Russian Federation where the term "reconstruction" is used in rules about the contract building podrjada the real estate can be which subject only. In our opinion, the specified definitions are applicable and to the Law about

GCHP without necessity of entering into its text of separate changes. We will notice, that in practice the agreement on state-private partnership quite often consists źin the form of the turnkey contract╗ [297] or źthe turnkey contract nature╗ 2 is given to such agreement.

Three of five facultative elements of the agreement about GCHP concern the additional rights and duties of the private partner (item 6 item 3), such as: 1) designing by the private partner of object of the agreement;

2) realisation by the private partner of full or partial financing of operation and (or) maintenance service of object of the agreement; 3) presence at the private partner of the obligation in transfer of object of the agreement in the property of the public partner after the term defined by the agreement, but not later than day of a termination of the agreement. In that case the agreement should provide an order, conditions and terms of such transfer (item 12 item 4).

The remained two facultative elements are devoted additional duties of the public partner. The first-maintenance of partial financing of creation with the private partner of object of the agreement, and also financing of its operation and (or) maintenance service (podp. 3 items 3 of item 6). In this case in the agreement the volume of prospective financial maintenance (item 12 item 5) should be provided. Such volume should correspond to the budgetary legislation of the Russian Federation. In some cases the given duty should concern agreement essential elements (podp. 4 items 3 of item 6). In our opinion so the legislator protects investment obligations of the public partner from possible abusings both from the private partner, and from separate officials.

One more additional duty of the public partner is maintenance of operation of object of the agreement with it in case the private partner carries out only maintenance service of this object of the agreement (podp. 5 items 3 of item 6).

The given norm confirms continuity of the Russian legislation in relation to traditional foreign models GCHP. Projects GCHP are distinguished by scale, long-term character and necessity of attraction of great volume инвестиций1. According to K.A.Makarevicha, the state-private partnership in a classical variant assumes financing of the project at the expense of private investments, and the state contribution is expressed in granting of property, property rights or various forms of the state support [298 [299] [300]. Therefore in the majority of the developed countries GCHP it is used as the form of attraction of private investments, however frequently it is not enough means of the private investor for realisation of project GCHP. In this connection there is a question on state and other sources of finance of the project. The law about GCHP speaks about own means of the private partner and extra means which it receives from the financing person (podp. 7 items 3 of item 8). Together with it is dark the basis of norm of item 12 of the Law about GCHP the state support of the private partner is possible also.

Scientists-lawyers had already been designated a problem of expansion of forms

-e

Participations of the state in private law sphere. The state can act in

Quality of the investor at the expense of use of own means of budgets (federal, regional, local). Budgetary investments are defined as the budgetary funds directed on creation or increase at the expense of means of the budget of cost of the state (municipal) property according to item 6 BK the Russian Federation. According to BK the Russian Federation projects GCHP can apply for reception of means of investment fund (a part of means of the budget, coming under to use with a view of realisation of the investment projects which are carried out on principles GCHP according to item 179.2 BK the Russian Federation): or investment fund of the Russian Federation, or regional investment funds.

At the same time according to the Law about GCHP project financing can be carried out not only at the expense of investments of the private partner and soinvestitsy the public partner. On the basis of the direct agreement between the private partner, the public partner and the financing person the last gives extra means to the private partner for realisation of the agreement on the terms of a reflexivity, platnosti, promptness (item 6-7 of item 3 of the Law about GCHP). However the law not enough attention gives to the financing person, specifying only, that this legal body or operating without formation of the legal person under the contract on joint cooperation association of two and more legal bodies.

In our opinion, in a role of financing persons the credit organisations (banks) - both national, and foreign can act first of all. The similar rule is fixed and in the legislation of the majority developed foreign стран1. Thus as the source of finance in this case can act not only own means of such credit organisations as it is accepted in many developed countries [301 [302]. So, now financing of projects GCHP can be carried out for means of Fund of national well-being on returnable основе1. According to item 5 of item 96.10 BK the Russian Federation with a view of financing of the self-supporting infrastructural projects which list affirms the Government of the Russian Federation, to 10 percent of means of Fund of national well-being can take places (on the basis of separate decisions of the Government) in the Russian credit organisations. Thus according to the Law about GCHP the initiator of such GCHP-PROJECT there can be exclusively Russian investor. We will underline, that in this case it is a question not of own means private and means of the public partner, and about the involved means of the financing person (for example, bank) on the basis of the direct agreement.

Besides banks, in a role of financing persons any other commercial organisations, and also the state organisations, the state corporations and the companies (economic societies with the state participation) [303 [304] can act. So, the active participant of realisation of projects GCHP in Russia is the Foreign trade and investment bank which carries out the activity on the basis of the Federal act from 17.05.2007 № 82 - FZ źAbout development bank╗. The organisations can be the financing person and many other things: the Russian fund of direct investments (RFPI),

The state corporations and the companies (GK "Rosatom", GK źthe Russian highways╗, GK "Roskosmos"), economic societies with the state participation etc.

Thus, financing of projects GCHP can be carried out both at the expense of own means of the private partner, and at

State sofinansirovanii at the expense of means of budgets various

Levels (Investment fund of the Russian Federation, regional investment funds) 1. Besides, mechanism GCHP allows to provide the GCHP-PROJECT at the expense of means of the financing person in the form of the credit organisations (banks), the commercial organisations, the state corporations and the companies, and also legal bodies with the state participation, the projects created for financing having the important public and state value [305 [306] [307] [308]. Besides, such tool, as design financing, under the fair remark And. V.Belitskoj, also is one of the most perspective models of realisation of projects

-e

GCHP. Within the limits of design financing of separate attention the specialised society which is new, taking a special place in the Russian right the realisation tool deserves

4

sekjuritizatsii and investment projects.

In our opinion, specificity of duties of participants GCHP on financing of project GCHP consists in the following. Unlike the majority of versions of the investment agreement in the agreement about GCHP there is no accurately expressed division of functions of participants of investment activity. For example, according to the law about GCHP as the investor mainly private partner as he incurs the expenses connected with full or partial creation of object of the agreement is considered. However, if the private partner has no own means for project realisation, this function is incurred by the financing person (the credit organisation). In that case the role of the investor actually passes to the financing person. Simultaneously with

It and the public partner can be soinvestorom, having incurred a part of expenses on financing of object of the agreement. Stated allows to come to conclusion that participants of state-private partnership are the special subjects of the investment activity who has been not mentioned in the current legislation. Nevertheless their existence is supposed by the law as the list of subjects of investment activity has open character.

The agreement recognition about GCHP the investment contract, and participants GCHP - investors will allow to apply to relations in sphere GCHP of position of the legislation on investment activity. However the Law about GCHP directly limits action of the investment legislation in case of occurrence of collisions between them. In our opinion, for this reason norms of the law about GCHP provide wider guarantees at agreement realisation about GCHP, than the operating investment legislation. At the same time in order to avoid possible contradictions, it is necessary to agree with opinion And. V.Belitskoj about necessity of the prompt consolidation modern Russian investment законодательства1.

As believe M.I.Braginsky and V.V. Vitrjansky, contractual conditions źrepresent a way of fixing of the mutual rights and duties. For this reason when speak about the contract maintenance in its quality of legal relation, mean the rights and duties of counterparts. Unlike it the contractual treaty maintenance is constituted by contractual conditions╗ [309 [310]. The agreement about GCHP to the full corresponds to the known thesis of a science of the Russian enterprise right about necessity of a combination of private and public legal means for regulation экономики1. However any contract including the agreement about GCHP is always źa product of joint will of the parties╗ [311 [312] [313]. At the same time the private partner possesses limited freedom in a choice of conditions of the entered into agreement as the considerable part of such conditions is established according to the Law about GCHP.

Nevertheless, and in this case position according to which against the will nobody is obliged to conclude the contract is completely applicable. Besides, the agreement parties about GCHP can include separate conditions in the agreement text, grant the rights and to assign against each other the duties which are not contradicting the current legislation. It is necessary to mean also, that a number of conditions of the agreement about GCHP is defined on the basis of the competitive offer of the person applying for its conclusion. The treaty provisions representing źvzaimosoglasovannye between all its participants of the arrangement on an order of performance of certain actions,

-e

Which parties undertake to make ╗, form models of possible and expedient behaviour of counterparts, in the concentrated kind reflect their rights and a duty, act as a reference point of actions of the parties of the agreement.

It is necessary to notice, that questions of definition of a circle of essential treaty provisions and their legal effect are till now debatable in the legal literature [314]. It is important to underline, that essential conditions of the agreement about GCHP are conceptually defined in Law item 12 about GCHP. However not all from them is mentioned by the rights and duties of participants GCHP. In our opinion, to number of the rights and duties of participants GCHP defined by essential conditions of the agreement about GCHP, the Law carries:

1) the rights and the duties of participants GCHP defined by elements of the agreement about GCHP (podp. 1 items 2 of item 12);

2) a duty of the public partner to provide granting to the private partner of the property intended for realisation of activity under the agreement about GCHP (podp. 4 items 2 of item 12);

3) a condition and an order of occurrence of the right of a private property on object of the agreement (podp. 6 items 2 of item 12);

4) a duty of the parties of the agreement to provide realisation of actions for agreement execution when due hereunder (podp. 7 items 2 of item 12);

5) a duty of the parties of the agreement in connection with a preschedule termination of the agreement, replacement of the private partner, etc. (podp. 10 items 2 of item 12);

The list of essential conditions of the agreement about GCHP has open character, sending to źto other provided federal acts to essential conditions╗ (podp. 12 items 2 of item 12). In a context of item 2 of item 432 GK it means the Russian Federation, that essential conditions all those conditions which are directly named in the law or other legal acts as essential or necessary should admit. Besides, some rights and duties of the private or public partner depend on, whether those or other facultative elements are provided in the agreement. Among those it is necessary to note:

1) an order, conditions and terms of transfer of object of the agreement the private partner to the public partner in case of presence of such condition (item 12 item 4);

2) volume of financial maintenance of the public partner in case of acceptance by the public partner on itself of obligations on execution of a part of expenses on creation of object of the agreement, its operation and (or) maintenance service (item 12 item 5);

3) a duty of the private partner in financing attraction in the volume, which private partner undertakes to provide with a view of creation of object of the agreement (item 12 item 6);

4) the size of a payment of the private partner for operation and (or) maintenance service of object of the agreement in case such payment is established by the agreement (item 12 item 9).

Besides essential conditions of the agreement the Law about GCHP provides still facultative conditions (item 12 item 11). In our opinion, to number of the rights and duties of participants GCHP defined by facultative conditions of the agreement, it is necessary to carry:

1) a duty of the private partner in realisation of the made goods, the executed works, the rendered services during the term established by the agreement, and also requirements to quality of these goods, works, services (podp. 3 items 11 of item 12);

2) a duty of the private partner in granting to consumers established by federal acts, laws of subjects of the Russian Federation, municipal legal acts of representative bodies of local government of privileges, including privileges on payment of the goods, works, services (podp. 4 items 11 of item 12);

3) a duty of the private partner in realisation at own expense insurance of risk of accidental loss and (or) casual damage of object of the agreement, other transferred by the public partner to the private partner in the property agreement (podp. 6 items 11 of item 12);

4) a duty of the parties of the agreement on preparation of the territory necessary for creation of object of the agreement and (or) realisation of activity, provided by the agreement, including on preparation of the project of a lay-out of territory and the project mezhevanija territories, the ground area (ground areas) by training (podp. 8 items 11 of item 12);

5) a duty of the public partner to provide consideration and the statement of the project of a lay-out of territory, the project mezhevanija territories, terms of performance of the given duty if it is included into its competence (podp. 9 items 11 of item 12);

6) a duty of the parties of the agreement on transfer of results of intellectual activity and (or) the means of an individualization necessary for execution of the agreement (podp. 10 items 11 of item 12).

The list of facultative conditions also is opened (podp. 10 items 11 of item 12). We will notice, that in case the parties will decide to include the specified facultative conditions in the agreement text, they have the right to give them character of essential conditions owing to position of item 1 of item 432 GK the Russian Federation according to which essential conditions concerning what under the statement of one of the parties the agreement can be reached should admit.

The important attention is given in the Law about GCHP to a question on the property right of the private partner on object of the agreement. As is known, this condition is the main advantage of the agreement about GCHP before kontsessionnym the agreement from the point of view of the investor. The law establishes, that the state registration of the property right of the private partner on object of the agreement is carried out after input of object of the agreement in operation simultaneously with the state registration of encumbrance of the property right to the specified object and real estate. From our point of view, it allows in bolshej to degree to protect public interests at agreement realisation about GCHP. Such point of view has support and in the legal literature [315].

Alienation by the private partner of object of the agreement which is in the property of this private partner, before the expiry of the term of action of the agreement is not supposed, except for a situation connected with replacement of the private partner. But even in this case transition of the property right to object of the agreement on state-private partnership from the old private partner to the new private partner is not the basis for

The terminations of the established encumbrance (item 12 item 12-13).

In item 12 item 14 the important rule according to which the personal estate created and (or) got by the private partner at realisation of activity, provided by the agreement, and not a part of other property given under the agreement, is the property of the private partner if other is not established by the agreement is established. Thus the real estate which is created by the private partner with the consent of the public partner at realisation of the activity provided by the agreement, is not object of the agreement and is not a part of other property given under the agreement, is the property of the private partner if other is not established by the agreement. At the same time the same real estate which is created by the private partner without the consent of the public partner, is the property of the public partner, and cost of such property does not come under to compensation.

Let's notice, that in a question of definition of legal destiny of the specified property the norm of the Law about GCHP places the important emphasis on the consent of the public partner to the real estate creation, however the given law does not establish the form of such consent. In our opinion, it should be given in writing.

In our opinion, the rights and duties of participants GCHP are necessary for considering in a complex, by their distribution on several classification groups, each of which is formed on the basis of statutory essential and facultative conditions of the agreement about GCHP and the direct agreement. It is offered to allocate following basic groups of the rights and duties of the parties of the agreement in relation to object of the agreement about GCHP:

1) the rights and duties of the parties, concerning creations of object of the agreement (designing, building and (or) reconstruction - podp. 1 items 2 of item 6; podp. 1 items 3. Item 6; item 4 of item 12 of the Law about GCHP and dr).;

2) the rights and duties of the parties, concerning operation of object of the agreement (operation and (or) maintenance service - podp. 3 items 2 of item 6; item 9 of item 12 of the Law about GCHP and so forth);

3) the rights and duties of the parties, concerning occurrence and transition of the property right to object of the agreement (podp. 4 items 2 of item 6; podp. 4 items 3 of item 6; podp. 6 items 2 of item 12 of the Law about GCHP etc.);

4) the rights and duties of the parties, financings concerning attraction in object of the agreement (podp. 2 items 2 of item 6; podp. 2-3 items 3 of item 6; item 12 item 5; item 6 of item 12 of the Law about GCHP, etc.).

Some positions of the Law about GCHP (in particular, item 14) are devoted the rights of the public partner to control of execution by the private partner of the agreement about GCHP. According to item 14 item 2 the public partner carries out the observance control the private partner of execution of conditions of the agreement, including: 1) executions of obligations on observance of terms of designing, creation of object of the agreement, financing of creation of object of the agreement; 2) maintenance of conformity of technical and economic indicators of object of the agreement with the established agreement to technical and economic indicators; 3) realisation of the activity provided by the agreement, operation of object of the agreement according to the purposes established by the agreement;

4) achievements of values of criteria of efficiency of the project and values of indicators of its comparative advantage.

In the legal literature attempt to make the review of the state bodies which are carrying out the control in sphere of state-private partnership in the Russian Federation [316] was undertaken. In particular, one of such bodies is Federal antimonopoly

Service [317]. At the same time, considering the special civil-law status of the public partner which simultaneously is the carrier of imperious powers, it is necessary to differentiate realisation of control functions by it within the limits of the agreement about GCHP with monitoring procedure by public authorities and the local government, representing public the partner at execution of the administrative powers by it. In case of doubt in the nature such pravoni should be interpreted in favour of the control measures, carried out under the agreement about GCHP and to be regulated by its positions and norms of the Law about GCHP.

The control the public partner of execution of the agreement is carried out by it, and also bodies and the legal bodies acting on the party of the public partner, in the name of their representatives. These persons on the basis of the agreement have the right of an unimpeded access to object of the agreement and to the documentation concerning activity provided by the agreement, with a view of revealing of infringements by the private partner of conditions of the agreement, and also for preventive maintenance of such infringements. However representatives of these persons have not the right: 1) to interfere with realisation of economic activities of the private partner; 2) to disclose the data which are carried by the agreement to data of confidential character or being commercial or the state secret. The special attention to carry out the control over agreement execution by the private partner gives to the right of the public partner judicial практика2.

In our opinion, control powers of the public partner in sphere GCHP not sufficiently provide protection of public interests. In particular, it is necessary to explain, that represents intervention in realisation of economic activities of the private partner as any control actions in itself already are an obstacle for activity realisation by the private partner. Besides, it is necessary to open the list, the maintenance and a procedure of control actions concerning the private partner. We will underline, that in the legal literature limits of the state intervention in activity of the private partner time and again were discussed at realisation ГЧП-проектов1.

Granting to the public partner of control competences should be counterbalanced in the law about GCHP by presence at the private partner of some rights which are limited now on the basis of law express indication. For example, this right of attraction by the private partner of the third parties with a view of execution of its obligations under the agreement. It is necessary to admit attraction of such persons without dependence from the consent of the public partner, but with preservation of restrictions on attraction by "subpartners" of other persons ("subsubpartnerov") in order to avoid possible abusings. Such restrictions are the usual mechanism of civil-law regulation [318 [319]. Inadmissibility of abusing was repeatedly underlined by civil obligations in the legal literature [320]. Besides, the private partner is necessary for according a right activity stay under the agreement without the consent of the public partner in the cases defined by the agreement, and also to expand the right to indemnification enclosed in the project gosudarstvennochastnogo partnership of investments.

At the same time it is necessary to establish a duty of the private partner not to stop the activity provided by the agreement about GCHP in case of a preschedule termination of the agreement or replacement of the private partner, before transfer of object of the agreement to the public partner or the new private partner (except for cases of discharge of the private partner from agreement execution under the decision of the public partner). Thereby appropriate protection of public interests in GCHP, the goods consisting, in particular, in improvement of quality, works, services will be established, the maintenance organisation with which consumers concerns questions of conducting public authorities, local governments (podp. 1 items 1 of the Law about GCHP).

In our opinion, it is necessary to provide in the Law mechanisms of public control concerning realisation of GCHP-PROJECTS as the population (consumers) is the final beneficiary in GCHP. We will notice, that in the legal literature the population was already considered as the subject of civil law [321]. Besides, the Russian legislation already has positive experience of creation of mechanisms of public control for additional protection of interests of citizens within the limits of the Law on contract system.

For example, item 102 of the Law on contract system provides variety of competences of public associations and associations of the legal bodies who are carrying out public control. The similar mechanism should be established and in the Law about GCHP. Such organisations should observe of an information openness of projects GCHP and behind observance by participants GCHP of norms of the current legislation without intervention in their current activity. Public control in sphere GCHP also could be carried out by public chamber of the Russian Federation, public chambers of subjects of the Russian Federation and public chambers (councils) of municipal unions. Besides, it is necessary to agree with opinion E. V.Ignatenkovoj about necessity of inclusion for the list of subjects of public control and citizens Russian Федерации1.

Let's notice, that positions of item 102 of the Law on contract system are successfully realised in practice within the limits of the project All-Russian

L

Popular front źFOR fair purchases╗.sozdanie mechanisms of public control within the limits of GCHP becomes one more general sign

-e

(Which number has already been allocated in the legal literature), underlining similarity between the state contract and the agreement on state-private partnership.

The law about GCHP does not provide transition of the rights and duties of the public partner in the agreement about GCHP. Under the general rule, the Law about GCHP forbids transition of the rights and duties and the private partner (item 11 of item 13 of the Law about GCHP). However it is provided two exceptions: it is reorganisation of the private partner and replacement of the private partner. Transition of the rights and duties of the private partner in case of its reorganisation to other legal body should be carried out under condition of conformity of the legal person reorganised or resulted reorganisation to the necessary requirements (item 13 item 12). We consider, that discrepancy to such requirements is the basis for agreement cancellation about GCHP though it is direct and does not follow from the Law (podp. 3 items 8 of item 13 of the Law about GCHP). However if reorganisation is known to the law about kontsessionnyh agreements (item item 3 5 Laws about GCHP) replacement of the private partner is an unconditional innovation of the Russian legislation about GCHP and deserve more detailed analysis.

Replacement of the private partner is made at default or inadequate execution of the obligations by it before the public [322 [323] [324] partner and (or) the financing person. The new private partner to which pass the rights and duties under the agreement, should correspond to the necessary requirements also. Replacement of the private partner in the agreement about GCHP is carried out by two ways: by carrying out of competition with a view of replacement of the private partner (item 13, 15-16 items 13 of the Law about GCHP) or without its carrying out (item 14 of item 13 of the Law about GCHP).

Certainly, for the public partner out-of-competition procedure is more preferable owing to small duration and speed of realisation. However the legislator has established only two cases when replacement of the private partner without competition carrying out is possible: 1) if essential conditions of the agreement are broken and (or) harm of a life or to health of people has been admitted or there is a threat of causing of such harm; 2) at manufacture excitation on business about bankruptcy concerning the private partner.

In case of replacement of the private partner of a condition of the agreement change taking into account actually executed obligations of the private partner and the offers presented by the winner of competition with a view of replacement of the private partner. Such changes are made out by the additional agreement (item 18 of item 13 of the Law about GCHP). Then the private partner which is coming under to replacement, transfers under the reception-transfer certificate the object specified in the agreement to the new private partner. The given transfer is the basis for the termination of the property right to object of the agreement of the private partner coming under to replacement and the basis of occurrence of the property right to object of the agreement of the new private partner (item 19 of item 13 of the Law about GCHP).

Besides, according to item 13 item 20 in case after a year from the date of occurrence of the bases for replacement of the private partner such replacement is not carried out, the agreement comes under to preschedule cancellation. However from norm of item 13 not clearly, on which basis of the termination the agreement about GCHP comes under to cancellation. In our opinion, the legislator means podp. 3 items 8 of item 13 of the Law about GCHP are not clear, - preschedule cancellation of the agreement about GCHP under the decree. However consider inexpedient to terminate the agreement about GCHP judicially.

In this connection it is necessary to pay attention to a duty assigned to the private partner owing to item 6-7 of item 5 of the Law about GCHP: the private partner is obliged to execute obligations under the agreement by own strength. The private partner has the right to execute the obligations under the agreement with attraction of the third parties only in case it is supposed by agreement conditions, the written approval of the public partner thus is required. We will notice, that the private partner bears responsibility for actions of the third parties as for own.

The rights and duties of participants GCHP include a number of the signs peculiar to three known classical civil-law contracts. First, it is the contract building podrjada. Under the agreement about GCHP the private partner undertakes to carry out building and (or) reconstruction of object of the agreement, and the contractor under the contract building podrjada undertakes to construct certain object on the instructions of the customer or to execute other civil work. Nevertheless the difference with a view of the conclusion of contracts involves qualitative difference in the maintenance of their rights and duties. For example, according to the agreement the private partner (or the financing person) invests own means that is caused by transition of the property right to object of the agreement to the private partner after its input in ekspulatatsiju in the GCHP-PROJECT. Under the turnkey contract the contractor carries out object building at own expense, getting compensation for the made work. Transition of the property right to object of the turnkey contract is not made under any conditions.

Secondly, it is the rent contract of buildings and constructions. According to the Law about GCHP the private partner undertakes to carry out operation and (or) maintenance service of object of the agreement, and under the rent contract the tenant receives a building or a construction in time using. Though the sphere of application of the rent contract is much wider, than at the agreement about GCHP, its functionality has not enough for effective realisation of mechanism GCHP. Besides, a duty of the private partner to maintain object of the agreement makes related the agreement about GCHP with the contract of confidential management of property. However basic difference of the specified contract from the agreement about GCHP (the same as and with the turnkey contract), is absence of transition of the property right to property to the confidential managing director.

Thirdly, it is the real estate contract of purchase. Under the contract of purchase of the real estate the seller undertakes to transfer to the possession the buyer the ground area, a building, a construction, apartment or other real estate. According to the law about GCHP the private partner has a property right to object of the agreement after its commissioning simultaneously with the state registration of encumbrance of the property right to the specified object and real estate. However according to the Law about GCHP the agreement can provide presence at the private partner of a duty in transfer of object of the agreement in the property of the public partner after the term defined by the agreement (i.e. About return of object of the agreement to back public partner).

Lines of various civil-law contracts do not give to the agreement about GCHP character of the mixed contract and do not break its complex nature. The mixed contract it agree item 3 of item 421 GK the Russian Federation form the parties, and complex the legislator according to the special law designs. If to the mixed obligations rules about contracts which form it, to complex - special legislative guidelines on them are applied, and at their absence - general provisions on obligations and contracts. In it difference of the agreement about GCHP from kontsessionnogo the agreement which both in the legislation, and in the legal literature admits mixed договором1. Unlike the Law about GCHP in the Law about kontsessionnyh agreements it is directly said that to relations of the parties kontsessionnogo agreements are applied in corresponding parts of a rule of the civil legislation on the contracts which elements contain in kontsessionnom the agreement if other does not follow the law or an agreement being (item 2 of item 3 of the Law about kontsessionnyh agreements). This conclusion also proves to be true judiciary practice [325 [326].

Hence, to legal relations between participants GCHP, in particular, to the separate rights and duties of the parties of the agreement about GCHP, general provisions G razhdanskogo the code of the Russian Federation about obligations and contracts are applied both special positions of the Federal act about GCHP, and. At the same time owing to complex, instead of the mixed nature of the agreement about GCHP action of rules of the civil legislation on separate kinds of the contracts which elements are present at the agreement about GCHP is excluded.

The central element of the civil-law status of participants GCHP - the rights and duties of partners - historically consists of set of elements, characteristic for the contracts named regarding second GK the Russian Federation. About GCHP it is possible to find lines of obligations of the parties in the agreement under the contract of purchase, building podrjada, rent, confidential management of property, etc. At the same time, besides the rights and the duties inherent in the parties in contracts provided in the civil legislation, the agreement about GCHP has also the unique obligation, uncharacteristic for any contractual designs fixed in GK the Russian Federation. It is a question about duty of the private partner to maintain object of the agreement in obshchepoleznyh the purposes: to make the goods, to perform works, to render services for satisfaction of requirements of citizens during certain term. The specified feature represents, as a matter of fact, a way of integration of public elements in a private-legal design of the agreement about GCHP, incorporation of the public beginnings in the civil-law contract.

As marks V.K.Andreev, the branches of law (legislation) containing only norms of private law, in the Russian legislation not существует1. Besides, in the legal literature there is an opinion that interaction private and the public law generates third

L

The jural sphere - social rights. We will notice, that features of relations between consumers and businessmen in the Russian legal system in a context of social sphere already were an object of research in

- 3

To the legal literature.

The system of the rights and duties of participants GCHP represents structural set, i.e. Division of the rights and duties of participants GCHP into the kinds which are among themselves in certain interrelation depending on the maintenance and the forms. The basic groups of the rights and duties of participants GCHP closely co-operate among themselves, they are interconnected and vzaimoobuslovleny. Thus rights of participants GCHP are such rights which are provided by rules of law. The right (and a duty) participant GCHP acts not only way of regulation of mutual relations between the private, public partner, the financing person, but also as a legal way of [327 [328] [329] satisfactions of various requirements and interests of participants GCHP. For example, the private partner, the financing person aspire to derive the maximum profit or to go through the difficult economic period, the public partner - to reach the various is social-significant purposes.

At the same time the analysis of the rights and duties of the parties of the contracts named GK the Russian Federation, their comparison with the rights and duties of participants GCHP allows to deduce one law: though specified dogovory in the majority agreements about GCHP for choice are wider than potential objects of the agreement, is functional they are capable to replace only some part of the agreement about GCHP.V result volume of the rights and duties of participants GCHP is much wider, than volume of the rights and duties of the parties in the named civil-law contracts. Besides, the agreement about GCHP bears in itself obvious obshchepoleznuju the purpose which as a whole is uncharacteristic for the listed civil-law designs.

Thus, the special rights and duties of participants GCHP are special rights and the duties reflecting specificity GCHP, supplementing both developing general laws and duties of participants GCHP as participants of the civil circulation. On the basis of the relation to object of object of the agreement about GCHP their classification is offered: 1) the rights and the duties, concerning creations of object of the agreement (designing, building, reconstruction); 2) the rights and the duties, concerning uses of object of the agreement (operation, maintenance service); 3) the rights and the duties, concerning occurrence and transition of the property right to object of the agreement; 4) the rights and the duties, concerning attraction of investments into object of the agreement.

<< | >>
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 the rights and duties of participants of the state-private Partnership:

  1. 1. Concept and system of participants of the state-private Partnership
  2. concept and elements of the civil-law status of participants of state-private partnership
  3. 2.1. The bases of occurrence and the termination of the civil-law status of participants of state-private partnership
  4. CHAPTER 1. GENERAL PROVISIONS ON THE CIVIL-LAW STATUS OF PARTICIPANTS OF THE STATE-PRIVATE PARTNERSHIP
  5. CHAPTER 2. REGULJATIVNYE ELEMENTS OF THE CIVIL-LAW STATUS OF PARTICIPANTS OF STATE-PRIVATE PARTNERSHIP
  6. CHAPTER 3. GUARDING ELEMENTS OF THE CIVIL-LAW STATUS OF PARTICIPANTS OF STATE-PRIVATE PARTNERSHIP
  7. 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
  8. Tchernomyrdin Elena Vladimirovna. State-private partnership in the mechanism of realisation of functions of the modern state. The dissertation on competition of a scientific degree of the master of laws. Samara - 2016, 2016
  9. 3.3. State-private partnership as the mechanism of attraction \r\nvnebjudzhetnyh of investments into social sphere of region
  10. publicly-legal bases of the state-private Partnership in an oil and gas complex
  11. The is administrative-legal nature of agreements on production section as forms of state-private partnership in an oil and gas complex of Russia
  12. CHAPTER 3. REALIZATION of the RIGHTS And DUTIES of PROPRIETORS of PREMISES ON MANAGEMENT of the APARTMENT HOUSE: PRIVATE-LAW And PUBLIC ASPECTS
  13. ž 4. Problems of interaction of the state, economic sector, political institutes and public associations in maintenance and protection of social rights of citizens of Republic Kazakhstan. Questions of social partnership