<<
>>

the state guarantees of the subject of the Russian Federation

G osudarstvennaja a guarantee as the kind of the state promissory note constitutes the least relative density in volume of a public debt of subjects of the Russian Federation about what official data of the Ministry of Finance of Russia [231] speak.

The basic feature of the state guarantee distinguishing it from other kinds of promissory notes, according to M.E.Mozharovoj, their dual status is: «On the one hand, the guarantee represents a version of loans, with another — a way of maintenance of obligations».

The given statement any more is not to the full fair. Earlier we specified, that till 2008 the state guarantees were defined through concept of the state loans that mismatched their economic and legal maintenance (item 89-90 BK).

Duality of the state guarantee as it was marked in gl. 1 present work, in our opinion, it is expressed in its intermediate position: a consequence of relations on granting of the state guarantees is formation of a public debt or formation of the state debt active or so-called «a debt to the state» (in the presence of a condition about the right of claim for exoneration of the guarantor to the principal).

E.H.Mahmutova, specifying in such discriminating properties

The state guarantees from the state loans as that «at the state guarantees execution of the guaranteed obligations by the state carries“ likelihood ”character, unlike relations where the state acts as the borrower and certainly should execute the promissory note», underlines, that many opponents of reference of the state guarantees refer to this distinction to a public debt, as at the moment of delivery of a guarantee of the promissory note yet

235

Arises.

Really, in material sense the state guarantee becomes a public debt only at approach of the reserved guarantee case. Therefore in the literature with reference to the state guarantees it is possible to meet such formulations, as «a conditional debt», [232 [233] [234] «a potential debt», «a likelihood debt». At the same time according to positions of item 98 and 99 BK volume of obligations on the state guarantees given by the Russian Federation or its subject, join in volume of a federal or regional debt accordingly. It is important to notice, that the legislator includes a total sum of the given state guarantees in structure of a public debt, instead of what already require execution. Differently, for reference of the state guarantees on a public debt a reference point is not approach of a guarantee case, and delivery of the state guarantee. According to ch. 4 items 115.2 BK the law on the budget budgetary assignments for possible execution of the given out state guarantees should be provided, i.e. The sum of repayment of the promissory note [235 [236] is reserved.

Thus, paramount communication of the state guarantee with a public debt, in our opinion, does not cause doubt. The state guarantee initially is the state promissory note in which force the state as the guarantor undertakes to execute the obligation to the third party for other person, and then in the presence of a condition about recourse such promissory note can already be transformed to the incorporeal right on compensation of the sum paid by the state on a guarantee. For this reason the state guarantees are considered by us in the section devoted to a public debt.

Let's remind, that in system of the legislation of the Russian Federation the state guarantee has received legal registration rather recently — with the introduction in

Force BK. Before public formations used other obespechitelnym the tool — the guarantee. In a science the given ways of maintenance till now are compared. Thus, as writes And. V.Grachev, «the guarantee certificate is the interbranch concept representing the public relation (obligation) in which force one person is obliged to execute the obligation for other person owing to making contract, law or unilateral assumption of such obligation. As a version of guarantee certificates act

The bank guarantee, the guarantee and the state guarantee, having

238

The different legal nature ».

Questions of the legal nature of relations on granting

The state guarantees as parts of the legal institution of the state credit have been in detail considered in gl. 1 present work where we had been recognised primary public character of the given legal relations. Nevertheless it is impossible to ignore certain similarity of the state guarantee not only with the guarantee, but also with the bank guarantee [237 [238]. We will allocate some general lines and distinctions of the specified kinds of maintenance of obligations.

First of all for relations on granting state and bank guarantees the identical kategorialno-conceptual device is characteristic. The way of maintenance is called as a guarantee. As the subject of granting of maintenance the guarantor acts. Thus in comparison with the guarantee the given subject of legal relations differs a speciality: on the state guarantee the guarantor is the state in the name of the competent bodies, under the bank guarantee — bank or other credit organisation whereas as the guarantor owing to the law any person can act. In turn, the person to execute which obligation maintenance is given, in relations on the state and bank warranting is called as the principal, and the person in which advantage maintenance is given, — benefitsiarom.

The general for all designated ways of maintenance of execution of obligations is compulsion of the written form of the agreement on granting of corresponding maintenance, and also possibility of maintenance with them as already arisen obligations, and what will arise in the future [239].

The volume of obligations within the limits of the guarantee is characterised by the greatest size: the guarantor under the general rule answers before the creditor in the same volume, as the debtor, including payment of percent, compensation of a legal cost under the debt collection and other losses. Thus the vicarious liability is solidary if the law or the contract do not provide the subsidiary liability. G osudarstvennaja the guarantee can provide also subsidiary or joint and several liability of the guarantor under the obligation of the principal provided with it. However the obligation of the guarantor provided by the state guarantee before benefitsiarom is limited to payment of the sum unsatisfied the principal of obligations, but no more the sum on which the guarantee is given out. In turn, the volume of obligations under the bank guarantee is limited only by sum payment on which the guarantee is given out.

To the guarantor who has executed the obligation pass the rights of the creditor under this obligation in that volume in which the guarantor has satisfied the requirement of the creditor. Under the general rule the principal under the bank guarantee also is obliged to compensate to the guarantor the guarantees paid according to conditions sums of money. Thus in case of granting of the state guarantee presence of the right of claim for exoneration of the guarantor to the principal is reserved by guarantee granting.

At last, speaking about vozmezdnosti (platnosti) the considered

Guarantee certificates, we will notice, that in relations on granting of the guarantee the guarantor who has executed the obligation, payment of percent and compensation of other losses suffered in connection with responsibility of the debtor have the right to demand. With reference to bank a guarantee the civil legislation of the Russian Federation does not contain an interdiction for collection by the guarantor of compensation for the given out (executed) guarantee, that, proceeding from an optional method of legal regulation, supposes bank guarantee granting on vozmezdnoj to a basis. At the same time BK as the basic source of legal regulation of budgetary legal relations,

Being by the legal nature public, any compensation of the guarantor on the state guarantee is not provided.

Thus, all considered ways of maintenance of execution of obligations have a number of similarities and distinctions. Thus available differences are in many respects dictated by a various target orientation of the given guarantee certificates. The state guarantees as it was repeatedly marked, are directed on stimulation of investment activity or realisation of other social and economic functions, that, in particular, causes absence of compulsory condition about vozmezdnosti the state guarantee.

It is thus important to underline, that now the state has the right to be obliged under obligations of the third parties exclusively by means of granting of the state guarantee. The contract of the guarantee concluded by public formation after December, 31st, 1999, is insignificant owing to item 168 GK (item 5 of the decision of Plenum of the Higher [240]

Arbitration court of the Russian Federation «About some questions of application by arbitration courts of norms of the Budgetary code of the Russian Federation»).

That circumstance, that from efficiency of a legal regulator in many respects depends, whether from the budget contingent liability the state guarantee is transformed to a material public debt, does necessary to analyse a condition of granting of the state guarantees of the subject of the Russian Federation, established by the budgetary legislation of the Russian Federation.

The analysis of positions BK allows to allocate following compulsory conditions of granting of the state guarantees: an adoption of law about the budget, containing the program of the state guarantees; carrying out of the analysis of a financial condition of the principal; granting by the principal of maintenance of execution of obligations on satisfaction of claim for exoneration to the principal in connection with execution in full volume or in any part of a guarantee; absence at the principal, its guarantors (guarantors) of the delayed debts under liabilities before the corresponding budget of budgetary system of the Russian Federation, on obligatory payments in budgetary system of the Russian Federation, and also not settled obligations on earlier given state or municipal guarantees.

Granting of the state guarantees of the subject of the Russian Federation is preceded by an adoption of law about the budget, which in force ch. 6 items 107 and ch. 3 items 110.2 BK are established the top limit of a regional debt on the state guarantees of the subject of the Russian Federation, and also the program of the state guarantees of the subject of the Russian Federation affirms as currency of the Russian Federation. According to ch. 1 items 117 BK the state guarantees of subjects of the Russian Federation are given within the total sum of given guarantees specified in the law on the regional budget.

The program of the state guarantees of the subject of the Russian Federation in currency of the Russian Federation represents the list of given state guarantees of the subject of the Russian Federation in currency of the Russian Federation for the next fiscal year and the planned period. Separate reflexion in the given program is come under by each direction of warranting with instructions of categories and (or) names of the principals which volume exceeds 10 million rbl. According to ch. 2 items 110.2 BK the specified guarantees can be realised only under condition of their statement as a part of the program of the state guarantees of the subject of the Russian Federation in currency of the Russian Federation.

It is necessary to pay attention that according to item 3 ch. 5 items 99 BK a regional external debt are formed including obligations on the state guarantees given by the subject of the Russian Federation in a foreign currency, and also given in maintenance of obligations in a foreign currency. However the requirement about the statement of the program of the state guarantees of the subject of the Russian Federation in a foreign currency as the appendix to the law on the budget of the subject of the Russian Federation in BK is absent, that, in our opinion, does not promote streamlining of procedure of granting of such guarantees of the subject of the Russian Federation and, as consequence, does not allow to raise reliability of the Russian Federations of obligations taken up by the subject. Besides, in the presence of detailed, places of superfluous legal regulation of a procedure of the state external loans of the subject of the Russian Federation of feature of an order and conditions of granting of the state guarantees of the subject of the Russian Federation in a foreign currency, being along with loans by a source of growth of the state external debt of the subject of the Russian Federation, have not received a due legal regulation in norms BK.

It is not necessary to forget, that feature of the state guarantees consists that they represent budget contingent liabilities, therefore for levelling of budgetary risks of regions and, thereby, nepovtorenija sad experience of the Russian debt practice of the end of 1990th, in our opinion, it is necessary to regulate legislatively procedure of granting of the state guarantees by the subject of the Russian Federation in a foreign currency, and also the state guarantees which are given out in maintenance of execution of obligations in a foreign currency, and, in particular, to provide, that a condition of realisation of the given guarantees is their statement as a part of the program of the state guarantees of the subject of the Russian Federation within the limits of the law on the budget.

Superficiality of the operating budgetary legislation of the Russian Federation in a question of granting of the state guarantees of subjects of the Russian Federation in a foreign currency is shown also in internal discrepancy of norms BK, concerning state guarantees of the subject of the Russian Federations given in a foreign currency or in maintenance of obligations in a foreign currency.

So, in ch. 4 items 104 BK are provided the right of the subject of the Russian Federation to give the state guarantees in a foreign currency in maintenance of execution of obligations of the Russian Federation within the limits of use of target foreign credits (loans). Promissory notes of the subject of the Russian Federation by the specified kinds of guarantees owing to express indication ch. 5 items 104 BK and korrespondirujushchim to it to norms ch. 4 items 99, ch. 4 items 117 BK concern on the state internal debt of the subject of the Russian Federation that corresponds settled in a science and the international practice to a principle rezidentstva, used in addition to a currency principle at division of a public debt on internal and external.

Thus in ch. 6 items 104 BK contain instructions on inadmissibility of granting of the state guarantees of subjects of the Russian Federation in maintenance of the obligations arising in a foreign currency, and also the state guarantees in a foreign currency, except for a case of warranting of obligations of Russia in a foreign currency within the limits of use of target foreign credits (loans) that contradicts earlier mentioned position ch. 5 items 99 BK about structure of the promissory notes forming the state external debt of the subject of the Russian Federation.

Thus, the collision between norm ch is available. 6 items 104 BK, excluding possibility of granting of the state guarantees of subjects of the Russian Federation in a foreign currency and in maintenance of the obligations arising in a foreign currency (that Russia within the limits of use of target foreign credits (loans) are given), and norms of item 3 ch. 5 items 99 and ch. 2 items 95 BK, including volume of such promissory notes in structure of the state external debt of the subject of the Russian Federation and carrying volume of the means directed on repayment of specified promissory notes, to other sources of external financing of a budgeted deficit of the subject of the Russian Federation (in a case if execution by the guarantor of the state guarantees of the subject of the Russian Federation leads to occurrence of the right of claim for exoneration of the guarantor to the principal or it is caused by a concession of incorporeal rights benefitsiara to the guarantor) accordingly.

For elimination of the developed legal collision it is represented expedient to withdraw from ch. 6 items 104 BK unreasonably entered restriction on granting by regions of the state guarantees in a foreign currency and to add ch. 4 items 117 BK the norm similar to those that contains in ch. 4 items 116 BK, only with reference to the state guarantees of subjects of the Russian Federation: «the Total sum of the obligations following from the state guarantees of the subject of the Russian Federation in a foreign currency, joins in structure of the state external debt of the subject of the Russian Federation as a promissory note kind».

Compulsory condition of granting of state guarantees BK names carrying out of the analysis of a financial condition of the principal. The given analysis is spent by financial body of the subject of the Russian Federation in the order established by it or the involved agent, and owing to norm ch. 3 items 115.2 BK, stated in edition of the Federal act from 22.10.2014 № 311-FZ

242

«About modification of the Budgetary code of the Russian Federation» (further — the Law on modification in BK № 311-FZ), such analysis carries not only preliminary, but also the subsequent character.

At the same time the federal legislation establishes two cases when the analysis of a financial condition is not obligatory. This granting of the state guarantees:

- For maintenance of obligations on compensation of the damage formed at approach of a guarantee case of noncommercial character;

- Without the right of claim for exoneration of the guarantor to the principal. [241]

It is difficult to us to agree with last withdrawal. It turns out, that the given analysis is focused on an estimation of sufficiency at the potential principal on the state guarantee of means for compensation to the guarantor of the sums paid on a guarantee as recourse. However, in our opinion, the analysis of a financial condition of the principal first of all should reflect degree of risk of approach of a guarantee case. Granting of the state guarantee in maintenance of execution of obligations of the unchecked principal for lack of a condition about the right of claim for exoneration of the guarantor to the principal increases probability of the budgetary losses connected with execution of the state guarantee. Therefore it is represented expedient to limit cases of unessential carrying out of the analysis of a financial condition of the principal granting of the state guarantee for maintenance of obligations on compensation of the damage formed at approach of a guarantee case of noncommercial character.

Also it is necessary to add, that at a formulation of the specified condition of granting of the state guarantee the legislator has not defined parametres of a financial condition of the principal and result of carrying out of such analysis at which the decision on granting of the state guarantee can be accepted. Similar omission can be observed and in the legislative formulation of a similar condition of granting of the budgetary credit containing in ch. 5 items 93.2 BK. In order to avoid a formalistic approach to observance of a considered condition it is considered proved to specify paragraph 2 position ch. 1 items 115.2 BK as follows: «reception of the positive conclusion by results of carrying out of the analysis of a financial condition of the principal», and also legislatively to define parametres of a financial condition of the principal at which the financial position of the principal is possible

243

To recognise as satisfactory. [242]

One more condition which observance is obligatory for granting of the state guarantee, on satisfaction of claim for exoneration of the guarantor to the principal in connection with execution granting by the principal of maintenance of execution of obligations serves in full volume or in any part of a guarantee. The legislator underlines, that such maintenance should correspond to requirements of item 93.2 BK regulating an order and conditions of granting of budgetary credits, and the civil legislation of the Russian Federation [243].

Maintenance of execution of the obligation on satisfaction of claim for exoneration of the guarantor to the principal in connection with execution of the state guarantee is not required in cases:

- When the principal is the Russian Federation or the subject of the Russian Federation;

- By granting of the state guarantee for maintenance of obligations on compensation of the damage formed at approach of a guarantee case of noncommercial character;

- If the guarantee does not provide the right of claim for exoneration of the guarantor to the principal.

Also the budgetary legislation of the Russian Federation withdrawals concerning the state guarantees given in maintenance of execution of obligations of municipal union can be established.

Before to speak about expediency of a considered condition of granting of the state guarantee, it is necessary to pay special attention on value of a condition of the state guarantee about the right of claim for exoneration of the guarantor to the principal [244].

Many scientists mark necessity of fastening of claim for exoneration of the guarantor to the principal as a duty, instead of the right of the guarantor, causing it that without a presentation of claims for exoneration the given state guarantee actually is the form of financing of the purposes which are not planned in an account part of the corresponding budget [245 [246]. Really, according to ch. 12 items 115 BK execution of the state guarantees are considered as a part of expenses or sources of finance of deficiency of the corresponding budget depending on presence in a condition guarantee about recourse.

M.E.Mozharova, analyzing properties obespechitelnyh measures, comes to conclusion, that «if in the state guarantee is established, that the guarantor does not possess the right of regress actually there is no prompting of the principal to execution of obligations before benefitsiarom. Such guarantee as the way of maintenance of execution of obligations, loses obespechitelnuju function».

Considering stated, we consider proved to share for a long time the position generated in a science about necessity of fastening in BK of claim for exoneration of the guarantor to the principal as compulsory condition of the state guarantee [247] that will allow to maximise responsibility of the principal on execution of the basic obligation, and also in case of approach of a guarantee case compensates the expenses suffered by the budget on execution of the state guarantee.

Thereupon we suggest to extend also the special regulation of periods of limitation formulated in ch. 4 items 93.4 BK, on requirements of subjects of the Russian Federation, arising in connection with granting and (or) execution of the state guarantees of the subject of the Russian Federation, that also are focused on creation of more reliable legal guarantees of protection of budgetary-legal interests of subjects of the Russian Federation.

Here it is necessary to notice especially, that some subjects of the Russian Federation reflect on advantage of conditions of given state guarantees from a position of maintenance of the public interest and give the guarantees exclusively with a condition about claim for exoneration of the guarantor to the principal (item 5 of item 6 of the Law on a debt of the Moscow area see, for example, ch. 3 items 3 of the Law on an order of granting of the state guarantees of Stavropol Territory).

Coming back to a condition of granting of the state guarantee about necessity of granting by the principal of maintenance of execution of obligations on satisfaction of claim for exoneration, we will notice, that separate authors express doubts concerning expediency of introduction of the given condition. So, M.Koshlina considers, that presence of such requirement is represented disputable enough and mismatching the essence of considered institute of the state guarantees as the addressee of the state guarantee also needs to provide the obligation to the third party by means of the state guarantee, and reception of the state guarantee in itself too demands liquid maintenance. Accordingly, it is more expedient to present the maintenance to directly creditor of the addressee of a guarantee. Thus, it is available inadequacy of given maintenance as the state guarantee of the subject of the Russian Federation provides to the creditor return of means to the maximum degree [248].

We cannot support a position of the given author first of all in view of its discrepancy. At maintenance with the principal of execution of obligations on satisfaction of claim for exoneration on the state guarantee there is no competition obespechitelnyh measures. The state guarantee provides appropriate execution by the principal of the obligations before benefitsiarom (the basic obligation) whereas maintenance given by the principal is directed on warranting of execution of claim for exoneration of the guarantor by it to communications by execution of the state guarantee. The given condition of granting of the state guarantee is directed on stimulation of the principal to execution of the basic obligation and on levelling of the risks connected with a non-return by the principal of the sum of a guarantee, paid by the guarantor benefitsiaru.

As last of the conditions of granting of the state guarantees established BK set forth above, absence at the principal, its guarantors (guarantors) of the delayed debts under liabilities before the corresponding budget of budgetary system of the Russian Federation, on obligatory payments in budgetary system of the Russian Federation, and also not settled obligations on earlier given state or municipal guarantees acts. The specified condition does not contain any exceptions and proceeding from its formulation comes under to application by all principals.

At the same time it is necessary to pay attention that a similar condition of granting of the budgetary credit, established in ch. 1 item 93.2 BK, clauses that necessity of absence of the delayed debts on obligatory payments in budgetary system of the Russian Federation does not extend on public formations. The budgetary code does not establish concept definition «obligatory payments in budgetary system of the Russian Federation», thus there are mentions of the given term in a binding to taxes and tax collections (for example, ch. 7 items 20, item 31, ch. 1 items 40 BK). Considering, that payers of taxes and tax collections public formations cannot be (item 19 NK), using analogy, it is possible to assume, as the nature of other obligatory payments in budgetary system of the Russian Federation does not assume, that as the subject of such payments public formations can act. Actually, it is absurd, after all the given payments arrive in the corresponding budget which is a material basis of existence of public formation. Thus, necessity of absence of debts on obligatory payments in budgetary system of the Russian Federation, in our opinion, does not extend on principals — public formations, and absence of instructions on it in ch. 1 item 115.2 BK testifies only to imperfection of legislative technics. [249]

Uncertainty characterises also concept «not settled obligations on earlier given state or

To municipal guarantees ». It is not clear, that the legislator means: presence of the given out guarantee, which period of validity yet has not expired, or debts of the principal on compensation as recourse of the sums paid by the guarantor on the state (municipal) guarantee. It is represented, the specified formulation also requires a concrete definition in norms of the budgetary legislation of the Russian Federation.

It is necessary to notice, that till 2008 BK one more demand as a condition of granting of the state guarantee — competitive selection was made. However its realisation has been complicated by uncertainty of norm of item 115 BK establishing, that «guarantees are given, as a rule, on a competitive basis», thus cases when competition is necessary for spending, and when there is no, by the legislator have not been established. The problem of absence of the imperative requirement about carrying out of competitive selection of the addressee of a guarantee rose in works of many researchers and was considered more often from the point of view of increase in risk of a non-return of the means received

252

Under a guarantee.

In our opinion, realisation of competitive selection of principals taking into account the Russian Federations of conditions of granting of the state guarantees considered by us above established by operating budgetary legislation, has no especial sense. The principal mainly should answer reliability requirement, and with this problem consult and the conditions fixed in item 115.2 BK. Meanwhile, taking into consideration that circumstance, what not all references about granting of the state guarantees, submitted principals who answer reliability requirement, can be satisfied in corresponding year owing to established budgetary [250 [251]

As the legislation of the Russian Federation of restrictions on volumes of given state guarantees of the subject of the Russian Federation (item 107, 117 BK), we consider

Expedient in order to avoid display of the corruption factor at decision-making on granting of the state guarantees of the subject of the Russian Federation to lead not competitive selection of principals, and selection of projects (other obligations) in which execution granting of corresponding state guarantees is supposed. The basic criterion of selection of projects as marks M.Koshlina, the size of the income which will be received by the subject of the Russian Federation as a result of project realisation should serve. In our opinion, such income can be expressed not only in real increase in monetary weight, but also in achievement of socially significant purposes.

It is necessary to notice, that the estimation of the guaranteed project already for a long time practises some regions by granting of the state guarantees of subjects of the Russian Federation. So, for example, by Order of the organisation of work and interaction of enforcement authorities of a city of Moscow on granting, registration and execution of the state guarantees of a city of Moscow, the approved governmental order of Moscow from 29.01.2008 № 71-1111, it is provided, that question consideration about

Granting of the state guarantee of of Moscow (item 3.1) is carried out on the basis of the written reference of the potential principal containing besides the statement with instructions of the reasons of granting of a guarantee also the business plan or the feasibility report, defining finansovoekonomicheskie parametres of the guaranteed project or other obligations and possibility of their performance, its budgetary efficiency. The decision on possibility of granting of the state guarantee of of Moscow is accepted taking into account the conclusion about economic efficiency of the guaranteed project and its conformity to the purposes and problems is social - [252 [253] economic developments of of Moscow, and also about economic feasibility of granting of a guarantee (item 3.11, 3.18).

It is represented expedient to extend similar practice on all subjects of the Russian Federation. For this purpose it is necessary the list of conditions of granting of the state guarantees, established in item 115.2 BK, to add with a condition about obligatory carrying out of competitive selection of projects and other obligations in which execution granting of the state guarantees is supposed.

Also it is necessary to notice, that before item 300 BK positions about responsibility for granting of the state guarantees with infringement of the established order were provided. The given infringement could entail imposing of penalties on heads of the state bodies according to KoAP, cancellation of guarantees, removal of the prevention of inadequate execution of budgetary process, and also in the presence of the corpus delicti — the punishments under criminal law provided UK.

With a view of discipline increase by granting of the state guarantees it is considered proved to return to a legal order assuming legal responsibility for granting of the state guarantees with infringement of the budgetary legislation of the Russian Federation, and, in particular, to enter in KoAP the structure of administrative violation similar to volume that is fixed in item 15.15.2 with reference to an order of granting of the budgetary credit, providing an administrative liability of infringement of conditions of granting of the state guarantee. Subjects of responsibility can be as the person representing the guarantor in the contract on granting of the state guarantee, and the principal to whom duties on observance of the Russian Federations of conditions of granting of the state guarantees established by the budgetary legislation are assigned.

Finishing consideration of conditions of the state warranting by the subject of the Russian Federation, we will notice, that besides fixed in BK base requirements, [254] coming under to direct performance by all subjects of the Russian Federation, regional standard legal acts also establish additionals, obligatory for observance by granting of the state guarantees of corresponding subjects of the Russian Federation. We will stop on one of the conditions, extended in standard legal acts of a significant amount of regions. This condition about granting of the state guarantees on vozmezdnoj to a basis.

For example, by aforementioned Order of the organisation of work and interaction of enforcement authorities of a city of Moscow on granting, registration and execution of the state guarantees of a city of Moscow it is provided, that the guarantee is given on a paid or free basis. The order, conditions and the size of collection of a payment for guarantee granting is established by the Government of Moscow (item 1.8). In turn, in the Law of Kostroma area «About a public debt of Kostroma area» position about vozmezdnom character of given state guarantees is formulated in the imperative form: the state guarantees of Kostroma area are given on vozmezdnoj to a basis, the payment for granting of the state guarantees is established at a rate of 1/2 rates of refinancing of Bank of Russia at the moment of guarantee granting (ch. 5 items 9).

Earlier we specified, that existing analogues of the state guarantee — the guarantee and the bank guarantee — are characterised vozmezdnostju, and the bank guarantee assumed earlier a payment for possible risk, i.e. Without dependence from approach of a guarantee case and execution of the state guarantee. The idea about vozmezdnosti (platnosti) a given state guarantee expressed also in the scientific environment, scientists estimated its advantage in an increment of incomes of the budget of corresponding level [255].

We do not consider proved granting of the state guarantee exclusively on vozmezdnoj (paid) basis, after all as it was already repeatedly marked, by granting of the state guarantee, no less than the budgetary credit, the state realises first of all reguljativnuju function. These tools are not aimed at mobilisation of incomes of the budget. For this reason the payment for using the budgetary credit or is levied on the preferential beginnings (in comparison with commercial crediting), or not levied at all.

It is thought, that on the similar bases the payment for granting of the state guarantees should be regulated. At the same time for creation of necessary legal definiteness it is represented expedient, like position ch. 2 items 93.2 BK to add the list of compulsory conditions of the state guarantee, established in ch. 4 items 115 BK, instructions on vozmezdnyj or gratuitous character of a given state guarantee. Thus compensation on the state guarantee, in our opinion, should be caused approach of a guarantee case and execution of the state guarantee and can represent percent from the sum paid by the guarantor benefitsiaru.

In case of delivery of the state guarantee on a condition vozmezdnosti compensation on the state guarantee, as well as at the budgetary

258

Crediting, in our opinion, correctly to consider as other source of finance of a budgeted deficit of the subject of the Russian Federation as diversifikatsija sources of finance of budgetary deficiency reduces the economic risks connected with increase of a public debt, a consequence use of the basic source of finance of a budgeted deficit — the state loans. Thereupon the offered innovation will demand entering of respective alterations into item 95 BK. [256 [257]

In summary once again we will note revealed during research of the youngest form of a regional debt — the state guarantees of the subject of the Russian Federation — blanks, collisions and other contradictions of the operating budgetary legislation of the Russian Federation.

At detailed, by places superfluous legal regulation of a procedure of regional external loans to the questions, concerning grantings of the state guarantees of the subject of the Russian Federation in a foreign currency and in maintenance of obligations in a foreign currency, it is not given due attention. At federal level have not received standard fastening of feature of an order and conditions of granting of such guarantees. With a view of levelling of the budgetary risks connected with contingent liabilities of the subject of the Russian Federation in a foreign currency, it is offered to eliminate available blanks of legal regulation of a regional external debt regarding granting of the state guarantees, including by means of standard fastening of a condition about realisation of such guarantees only at their statement as a part of the program of the state guarantees of the subject of the Russian Federation within the limits of the law on the budget.

The collision between norm ch is established. 6 items 104 BK and norms of item 3 ch. 5 items 99, ch. 2 items 95 BK regarding competence of the subject of the Russian Federation to granting of the state guarantees in a foreign currency and in maintenance of obligations in a foreign currency for which elimination it is offered to withdraw from ch. 6 items 104 BK unreasonably entered restriction on granting by regions

The state guarantees in a foreign currency and to add ch. 4 items 117 BK the norm similar to those which contains in ch. 4 items 116 BK, only with reference to the state guarantees of subjects of the Russian Federation: «the Total sum of the obligations following from the state guarantees of the subject of the Russian Federation in a foreign currency, joins in structure of the state external debt of the subject of the Russian Federation as a promissory note kind».

The carried out analysis of compulsory conditions of granting

The state guarantees of subjects of the Russian Federations fixed by the budgetary legislation of the Russian Federation, has allowed to reveal a number of lacks of operating legal regulation in the specified area, including: inapplicability of a base condition of granting of the state guarantee supposed by the law on carrying out of the analysis of a financial condition of the principal to cases of granting of the state guarantee without the right of claim for exoneration of the guarantor to the principal; an illegibility of the legislative formulation of a condition about carrying out of the analysis of a financial condition of the principal, and also absence of is standard fixed parametres of a financial condition of the principal at which its financial position can be recognised by satisfactory; uncertainty of concept «not settled obligations on earlier given state or municipal guarantees».

In turn, the reference to norms of become invalid budgetary legislation of the Russian Federation has allowed to prove a conclusion about expediency of fastening in BK conditions about carrying out of competitive selection of projects and other obligations in which execution granting of the state guarantee is supposed, the main which criterion of selection their conformity to the purposes and problems of social and economic development of corresponding region should be. Also with a view of discipline increase by granting of the state guarantees it is offered to return to a legal order assuming legal responsibility for granting of the state guarantees with infringement of the budgetary legislation of the Russian Federation, and, in particular, to provide an administrative liability of infringement of conditions of granting of the state guarantee.

And, at last, the legal estimation of such condition of the state guarantee, as vozmezdnost its grantings is given. It is proved, that vozmezdnost cannot represent itself as compulsory condition of the state guarantee owing to its financially-legal nature as in relations on granting of the state guarantee public formation realises first of all reguljativnuju, instead of fiscal function. With a view of creation of uniform legal regulation of relations on granting of the state guarantees of subjects of the Russian Federation it is offered to add established in ch. 5 items 115 BK the list of compulsory conditions of the state guarantee instructions on vozmezdnyj or gratuitous character of a given state guarantee. Thus in case of granting of the state guarantee on a condition vozmezdnosti compensation on the state guarantee is represented correct to be considered as other source of finance of a budgeted deficit of the subject of the Russian Federation.

2.3.

<< | >>
A source: Bogdanova Alexander Viktorovna. LEGAL REGULATION of the STATE CREDIT of the SUBJECT of the RUSSIAN FEDERATION the Dissertation on competition of a scientific degree of the master of laws. Moscow - 2016. 2016

More on topic the state guarantees of the subject of the Russian Federation:

  1. IT IS SUBJECT - THE OBJECTIVE ANALYSIS OF MANAGEMENT OF THE STATE OWNERSHIP IN THE SUBJECT OF THE RUSSIAN FEDERATION (ON THE EXAMPLE OF KHABAROVSK TERRITORY).
  2. the State loans of the subject of the Russian Federation
  3. 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
  4. formation and development of system of is standard-legal regulation of the state credit of the subject of the Russian Federation
  5. 1.1.2 Suffrage of the subject of the Russian Federation as podotrasl (institute) of the right of the subject of the Russian Federation
  6. CHAPTER 3. OPTIMIZATION of MANAGEMENT by the STATE OWNERSHIP In ECONOMY of the SUBJECT of the RUSSIAN FEDERATION.
  7. in the first paragraph – «it is administrative – a legal status of the head of the subject of the Russian Federation» - the institute of the head of the subject of the Russian Federation on an example of the Head of Republic North Ossetia - Alanija is considered.
  8. CHAPTER 2. THE ANALYSIS OF MANAGEMENT OF THE STATE OWNERSHIP IN THE SUBJECT OF THE RUSSIAN FEDERATION (ON THE EXAMPLE OF KHABAROVSK TERRITORY).
  9. CHAPTER 3. LEGAL REGULATION of the RELATIONS ARISING AT FORMATION of the STATE DEBT ACTIVES of the SUBJECT of the RUSSIAN FEDERATION
  10. REGIONAL REPRODUCTION AS THE MATERIAL BASIS OF THE STATE OWNERSHIP OF THE SUBJECT OF THE RUSSIAN FEDERATION AND CRITERION OF EFFECT HUNG WITH TI MANAGEMENTS.