work Structure

The work structure is caused by the purposes and research problems the Dissertation consists of the introduction, three heads including 8 paragraphs, the conclusions, the bibliographic list


In introduction the urgency of a theme of dissertational work is proved, degree of its scientific readiness is analyzed, the object and an object of research, its purpose and problems, structure are defined, methodological and theoretical bases reveal, scientific novelty and the substantive provisions which are taken out on protection, data about the theoretical and practical importance, and also about approbation of results of research are formulated

Chapter 1 «Concept of corporate norms» is devoted the characteristic of corporations as subjects corporate normotvorchestva, and also to the analysis of scientific approaches to understanding of corporate norms in the Russian jurisprudence the Head contains two paragraphs

In the first paragraph «Corporations as subjects corporate normotvorchestva» the retrospective estimation of an origin and development of corporations is made, the comparative analysis of treatment of the specified term in foreign legal systems is carried out

The problem of understanding of the term "corporation" has now great value, both for jurisprudence, and for practice As the given term to a certain extent plays a role of starting concept, its correct definition is one of determinatives in construction of all kategorialnogo the device of corporate sphere the Situation also substantially is aggravated with that in the Russian legislation there is no legal definition of the term corporation the Unique mention of it "the state corporation" In p 1 st 7 I of the given law takes place in the federal act from January, 12th 1996 № 7-FZ "About the noncommercial organisations" in a concept context is said, that the state corporation the noncommercial organisation not having membership founded by the Russian Federation on the basis of a property payment and created for realisation of social, administrative or other socially useful functions Specified definition, unfortunately, admits Does not reflect all signs of the considered social phenomenon and accordingly it can not be used as starting in interpretation of any elements of corporate sphere

There are many facts testifying in favour of that the term "corporation" in bolshej degrees is applicable concerning the structures based at association of persons and capitals and created with a view of realisation of commercial activity, as most widespread of which economic societies First act, addressing to foreign experience, it is possible to find easily acknowledgement to the presented thesis For example, in Switzerland corporations name one of two types of legal bodies along with establishments (the unincorporated organisations) Secondly, addressing to history, it is necessary to mean that, according to some authors, corporations have appeared not in ancient Rome, and in XIV-XVII vv, that is rather Recently many of them (the Ost-Indian, Vest-Indian companies, Russian company and dr) had much in common with modern economic societies and were their prototypes Thirdly, Within the limits of economic societies for today the widest spectrum of the most important economic, social and legal relations It develops, apparently, and that fact is caused, that in the modern Russian validity the term "corporate" (a corporate governance, corporate relations, corporate transactions) even more often sounds with reference to economic societies of various updatings It indirectly testifies to increase of tendencies to an identification of concept the corporation with the specified organisation-legal forms Moreover, on November, 28th 2001 g the government of the Russian Federation has been approved the Code of corporate behaviour In the given certificate of recommendatory character definition of corporate behaviour which is treated as the concept covering various actions is made, connected with management of economic societies In the considered certificate also it is underlined that, That standards of corporate behaviour are applicable to economic societies of all kinds, but to the greatest degree they are important for joint-stock companies As the logical will assume, that corporate behaviour are certain actions carried out by corporation and its members from this follows, that official structures indirectly carry various kinds of economic societies to corporations

The literature and current legislation analysis allows to approve, that in interpretation of the considered phenomenon it is possible to allocate two approaches philosophical and legal According to the philosophical approach corporation potshaetsja as any association of the people pursuing the joint aims irrespective of presence by this or that organizational - the legal form or the state registration From a position of the legal approach should be understood corporation as the legal body existing in organizatsionnopravovoj to the form of the commercial organisation In our legal system to traditionally allocated signs of corporation (association of persons and capitals) corresponds such kind of the commercial organisations, as economic societies, in particular their such version, as joint-stock companies, and also commercial forms of integration of these organisations

The second paragraph «Problems of understanding of corporate norms in the Russian jurisprudence» is devoted the analysis of approaches existing in a science to concept of corporate norms the Specified concept considered not only from general-theoretical positions, but also from positions of representatives of branch sciences, attempts of differentiation, legal and obshchefilosofskih concepts are undertaken, formation and problematics statement kategorialnogo the device the carried out analysis to the existing in legal, philosophical and sociological literature of the points of view is carried out allows to reduce conditionally them to two basic approaches the First it is possible to name obshchesotsialnym (its representatives in many respects lean against positions of social philosophy), the second - legal

Among most sticklers of the legal approach it is possible to name such scientists as T In Kashanina, About And Makarova, And M Huzhokova, N N the Paho-speech the Specified authors consider corporate norms as a version of rules of law and consolidate them in the corporate right as which in different cases understand

podotrasl or institute of civil law,

Synonym of the joint-stock right,

Part of the enterprise right,

4 Body of laws, the various commercial organisations containing in local certificates

It is necessary to notice, that the presented division is rather conditional, as sights of the named scientists, finally, in many respects are similar, nevertheless, certain distinctions between them all the same are available, that, as a matter of fact, and allows to spend the present differentiation

As to obshchesotsialnogo the approach, its representatives to whom it is possible to carry the majority of scientists-theorists, under corporate norms (norms of public associations) understand the rules of behaviour created in the various organisations, public associations (the term «the organised communities»), extending on their members and the organisations directed on maintenance and functioning of the given structures is sometimes used

In the second chapter «Kinds of corporate norms» research of two basic versions of the given phenomenon of actually corporate norms and corporate rules of law is carried out, and also studying of other kinds of the specified norms is spent

The paragraph the first «actually corporate norms» is devoted the analysis of signs of the considered phenomenon actually corporate norms (norms of the organisations, public associations) in spite of the fact that their many lines are similar to lines of the right, inherently are not rules of law

Generalisation of the sociological and legal literature allows to allocate their following lines

Actually corporate norms are a version of social norms,

As subject of their regulation relations either not settled by the right, or settled by it in general (owing to impossibility or inexpediency of such regulation) act,

Actually corporate norms are obligatory only for the subjects directly related to association, express their will and interests,

Actually corporate norms are directed on maintenance of the organisation and association functioning, regulation of its internal questions (the purpose, a problem, function, the right and a duty of members, an introduction and exit condition or an exception, formation of directing bodies, a measure of responsibility, collecting, membership dues and t),

Actually corporate norms are provided with compulsion from associations, instead of the state,

Actually corporate norms are provided specific (for each organisation) by concrete measures of influence (reprimand, an exception, the prevention),

Actually corporate norms are formalized They textually fixed in corresponding documents of the organisations (associations),

Actually corporate norms are accepted on special procedure,

They can be systematised,

10 actually corporate norms should not contradict containing - niju and to sense of rules of law, t e should be accepted according to them

Having generalised the above-stated lines, it is possible to offer following definition of actually corporate norms actually corporate norms is a version of social norms of not legal character influencing the parties not settled by the right of public relations, directed on maintenance of functioning and an establishment of a certain order in the organisations textually fixed in its documents, supplied with specific, concrete measures of influence and provided with compulsion from the given organisation

In the paragraph the second «Corporate rules of law» the basic accent becomes on a parity of corporate rules of law with local rules of law the Majority of authors local rules of law were treated as a version I rub to-rules of law However already at 70-80 gg a number of researchers put forward idea that local norms are not especially trudo-legal phenomenon the Specified tendency has received a new impulse of development in the mid-nineties when separate scientists also approved, that the rules of law regulating public relations at local level, take place not only in private branches, but also in public (financial,) Thus specified norms it was offered to name administrative law corporate norms Anyhow, it has led to that norms which initially were called as local rules of law, began to be called as corporate norms the Given fact has served as the certain catalyst to mixture of concepts that has led to that, What is labour norms by the nature began to name corporate and on the contrary

In our opinion, corporate rules of law and local rules of law are not identical concepts Research of essence of local norms and signs of corporate rules of law allows to assume, that the given kinds of norms differ on sphere of distribution and a regulation subject Differently, corporate rules of law are a version of local rules of law, but they unlike the last urged to regulate relations not in all organisations, and only in what corporation Signs answer signs of corporation have been considered by us in the first chapter, and we have come to conclusion, that the specified term within the limits of the legal approach can be we will apply to economic societies, and also to their associations Being based on the above-stated positions, it is possible to draw a conclusion that corporate rules of law urged to regulate property and organizational relations, Local norms of the law of master and servant arising within the limits of specified structures are accepted on the basis of norms of the current legislation, cannot contradict it and lean against state support So, for example, illegally dismissed worker has the full right to bring an action against the employer, and its broken right will be protected At the same time the specified norms though are provided with the organisation in the name of the employer, as a matter of fact, lean against the measures of influence provided by the labour legislation (reprimand, the remark) Thereupon, it appears, that the authors approving, that corporate rules of law contain in rules of the labour schedule and collective agreements, are mistaken a little, as the norm containing in specified certificates and directed on regulation of relations on the organisation of the labour schedule, inherently is norm of the law of master and servant, is protected by it and does not answer to the full to signs of the corporate rule of law

As to a question on, whether corporate rules of law together with certain by the general can and civil law special provisions to form certain podotrasl or the institute named the corporate right, it appears, that on it it is possible to answer in the affirmative However thus it is not necessary to forget, that the corporate and centralised norms operate at different levels of legal regulation, and already at least therefore are excellent from each other the phenomena the Specified fact proves to be true that the civil legislation on occasion directly provides regulation of relations in separate kinds of the commercial organisations (the brightest kind here joint-stock companies act) by means of the norms containing in charters of specified structures So, for example, in the charter of joint-stock company the norms regulating an order of payment of dividends, participations of the shareholder in management of a society, granting to it the information can contain, Order of formation of directing bodies, whether an investment order their competence Are these norms legal нормами9 Undoubtedly as in case of their infringement, whether the shareholder can address for protection of the broken right in court Then there is a question are they the local norms falling in sphere of regulating influence labour права7 Unequivocally are not present Hence, it is possible to establish, that now there is a huge layer of norms which regulate relations at local level, but thus specified norms have a various branch accessory Accordingly, those norms which are created in the commercial organisations answering to signs of corporation, and regulate relations on distribution of profit and management of the organisation at local level and are corporate rules of law

In the paragraph the third «Other kinds of corporate norms», the developed characteristic of classifications of the considered phenomenon is given It is necessary to notice, that the given classification is focused on actually corporate norms as the given question is practically not studied in theory of state and law traditional classifications of corporate norms Thus existing in a science are supplemented with a number of others So, according to the author of dissertation, corporate norms can be classified on following bases

On action in time corporate norms can be subdivided into accepted on certain and uncertain terms,

On action in space they can be subdivided into the norms operating within the limits of all organisation, or only within its separate structural divisions,

Depending on presence of structural divisions of the organisation on territories of the various states corporate norms can be subdivided into norms of national and transnational action,

On a circle of persons corporate norms can be subdivided into the norms operating concerning all participants of the organisation and norm, operating concerning their separate categories,

On functions corporate norms can be subdivided on material and remedial the Given classification is drawn by us by analogy to similar classification of rules of law the judgement according to which differentiation material and rules of procedure can be spent depending on Expresses what question is answered with concrete norm it is material if answers a question «что9», and remedial if answers a question «как9»,

Depending on a kind of the organisation, association it is possible to allocate corporate norms of political parties, corporate intrafirm norms, corporate trade-union norms, corporate norms of other public organisations (sports, professional, creative, scientific, cultural, ecological and other public associations),

Depending on degree of legitimacy of activity of the organisation corporate norms can be subdivided into corporate lawful norms (their suppressing the majority) and corporate deviantnye norms, norms created by the organisations pursuing antisocial, and frequently and criminal purposes (the radical organisations of an extremist orientation, the terrorist organisations, totalitarian sects and t)

In the chapter of the third «the Unity, distinction and interaction of the right and corporate norms» is spent a parity of signs of the specified regulators the Head consists of three paragraphs

In the paragraph the first «the Unity and distinction of the right and corporate norms» is carried out the analysis of those general and discriminating lines which positioning the right and actually corporate norms as one-serial elements of system of social regulation, allow to differentiate absolutely accurately at the same time a role and character of regulating influence of the specified norms in the course of regulation of public relations

In a science are allocated a considerable quantity of lines being the general for the right and actually corporate norms However, in our opinion, it is possible to carry three to number of the cores, namely

As the first general line of the right and actually corporate norms it is possible to specify in their identical tendencies of development

The second major general line of the right and actually corporate norms consists in their formal definiteness

It is possible to carry that they possess the fixed set of the means providing their realisation to the third joint line of the right and actually corporate norms

As to distinction of the right and actually corporate norms he can be spent on following bases

By estimated criteria of behaviour and acts Rules of law estimate them from the point of view of lawful and wrongful, lawful and illegal, punishable and nonpunishable At application of actually corporate norms the behaviour of the subject can be considered from the point of view of corresponding or mismatching the specified norms and thereupon punishable or not punishable, but in any way from positions lawful and wrongful, and especially lawful and illegal

On character of a liability of infringement As actually corporate norms regulate less significant circle of public relations, responsibility for their non-observance, accordingly, has less rigid character, than responsibility for non-observance of rules of law Contempt of law attracts legal responsibility, thus an attraction order to legal responsibility is strictly regulated by the current legislation, for example, the order of amercement, disciplinary influence, bringing to criminal liability and dr At infringement of actually corporate norms are applied the sanctions provided by corporation by the Bright example to it the following fact can serve as the Most rigid corporate measure of responsibility the exception of members of the organisation Without the doubts, a specified measure acts, On the negative consequences does not go to any comparison with property and personal preterpevanijami persons at application to it legal responsibility

On action in space actually corporate norms unlike the right have strongly pronounced local character Their spatial action is limited to territory of the organisation which have accepted them

It is possible to specify and in some other distinctions of considered regulators In particular, actually corporate norms do not represent uniform system of norms in country scales (this uncertain set of small local systems), express will and interests of members of the organisation which have created them, regulate mainly intraorganizational relations and t d the Main difference of the right and actually corporate norms is that they are focused on regulation of different public relations As it was already specified by us earlier, the most various relations can get to sphere of regulating influence of actually corporate norms However in this case there is one very important condition which is basic at reference of those or other relations to sphere of so-called corporate regulation the Given relations should not be regulated by the right the Reasons on which those or other relations do not get to sphere of legal regulation, There can be an inexpediency or impossibility of similar regulation If public relations, to any signs get to sphere of legal regulation of this or that branch of law, they objectively cannot get to sphere of regulating influence of actually corporate norms

The paragraph of the second «Interaction of the right and corporate norms» is devoted the analysis of forms of interaction of the specified regulators Interaction of the right and actually corporate norms expressed in unity of action of both kinds of social regulators In our opinion, the specified unity can consist in such basic forms, as influence of the right on formation of actually corporate norms, influence of actually corporate norms on the right, transformation of actually corporate norms in rules of law, protection by the right of actually corporate norms, direct interaction of the right and actually corporate norms in the course of regulation of public relations

Let's pass to more developed analysis of the specified forms

Influence of the right on formation of actually corporate norms, first of all, is expressed, that rules of law, fixing the right of citizens and other persons to association, allow to create him within the limits of corresponding associations actually corporate norms At the same time the law creation of public associations (and, accordingly, actually corporate norms), the purposes and which actions are directed on violent change of bases of the constitutional system, infringement of integrity and blasting of safety of the state, kindling social, racial, national is forbidden and religious break a set Thus, the right sets frameworks, initial borders of action to actually corporate norms

Influence of actually corporate norms on the right mediates itself, first of all, through participation of public organisations in law-making of the state of Other component of this influence transformation of corporate norms in legal which can pass not only by transferring of corporate norms to standard legal acts is, but also by authorisation of the specified norms from the state the Given authorisation in our opinion can pass in three basic forms

Express indication in the law that a certain circle of relations regu - liruetsja the certificates containing actually corporate norms

Instructions in the contract that the parties resolve what or questions taking into account positions of the certificates containing actually corporate norms

Through an establishment For convenience it is possible to name the specified form of authorisation the judicial certificate of legal character of corporate norms korpo - rativnoj prejuditsiej

Actually corporate norms which have become by rules of law, supplement action of the rules of law established by the state as actually already are local rules of law

Protection by the right of actually corporate norms, is expressed that the current legislation creation and activity of public associations (so, and corresponding actually corporate norms), the purposes is forbidden or which actions are directed on violent change of bases of the constitutional system and infringement of integrity of the Russian Federation, blasting of safety of the state, creation of the armed formations, kindling social, racial, national and religious break a set (st 13 Constitutions of the Russian Federation) On the other hand the state encourages activity of the organisations which norms are directed on achievement of socially useful purposes by the Example to that can to serve position of the federal act from 12 01 1995 № 5-FZ «About veterans» In st 25 specified laws is said, that federal public authorities, Public authorities of subjects of the Russian Federation and local governments assist activity of public associations of the veterans created with a view of protection of the rights and legitimate interests of the specified category of the population

Direct interaction of the right and actually corporate norms in the course of regulation of public relations the Given form of interaction, as a matter of fact, is the basic as in its frameworks considered regulators prove to the full In our opinion, the specified interaction can occur in three basic forms specifying, supplementing and auxiliary

At the specifying form of interaction actually corporate norms carry out detailing and concretising regulation of relations which the right sets only the general direction of development For example, the right fixes the right of citizens to association, actually corporate norms in each concrete case specify, on what basis it is carried out also to what criteria the subject to become a member of this or that organisation should answer

At the supplementing form of interaction actually corporate norms regulate those relations which under objective causes remained behind legal regulation frameworks

As to the auxiliary form of interaction of the right and actually corporate norms it can take place in that case when actually corporate norms promote start of the mechanism of legal regulation In practice the similar form of interaction proves extremely seldom, however similar examples take place in sphere of sports and some other spheres

In the paragraph the third «the Corporate right: the concept n a place in system of the Russian right, a parity with actually corporate and corporate rules of law» is investigated concept and essence of the specified legal education in which frameworks such important phenomenon of corporate sphere as «corporate relations» According to the author of dissertation is considered, the corporate right, it is necessary to treat from a position of the narrow and wide approach

In narrow sense the corporate right is set of the local rules of law regulating activity of the concrete organisation, corporation answering to signs In structure of the corporate right (in narrow sense) the local rules of law regulating the most various circle obshchestvenngh of relations can enter (labour, financial, tax, administrative) though the basic place, certainly, belongs to corporate rules of law Thus the corporate right (in narrow sense) hardly probable can be carried to any concrete branch of law

In a broad sense the corporate right is the certain legal education representing set of the general and special civil-law norms, regulating the relations arising within the limits of corporation the Corporate right (in a broad sense) is the difficult institute of civil law accumulating in separate subinstitutes (for example «the joint-stock right»)

Within the limits of concept «corporate relations» it is necessary to allocate two different institutes actually corporate relations and corporate legal relations

Actually corporate relations is a complex of communications between members of the organisation which owing to the insignificance or inexpediency do not enter into a legal regulation subject

Corporate legal relations (corporate legal relations) should be subdivided into two independent kinds

The corporate legal relations entering into sphere of legal regulation of the corporate right in narrow sense Specified legal relations result from authorisation by the state of corporate social relations, to be exact norms, their regulating

The corporate legal relations entering into a subject of legal regulation of the corporate right (in a broad sense) About them it is a question in the majority of definitions meeting in the legal literature the Specified kind of corporate legal relations distinguishes the following feature set

They are property relations by the nature and, accordingly, enter into a subject of regulation of civil law,

The specified legal relations are included into a civil law subject in kache - stve its independent component (along with real, objazatelstven - nymi and exclusive rights),

As subjects of corporate legal relations participants of barks - poratsii (in this case we recognise that corporation is the organisation constructed on the basis of membership (participation) which participants have it is defined - nye the rights concerning its property) or corporation act,

The maintenance of corporate legal relations is constituted by rights and legal obligations both participants, and the corporation Among these rights can allocate such rights as the right to participation in management and the right to reception of the information on society activity, and also the right to reception of a part of profit and to a liquidating quota the Cores objazanno - stjami the participant are a duty on entering of the property contribution, and also a duty not to disclose the confidential information about active - sti corporation

The signs of the corporate legal relations settled by the corporate right (in a broad sense) considered above, allow to approve, that they enter into a subject of legal regulation of civil law Told the corporate right (in a broad sense), also in turn allows to come to conclusion, that, enters as a component into civil law In favour of the given statement also that fact testifies, that at regulation of corporate relations by a primary and main method the optional method peculiar to civil law as relations between participants of the specified relations carry coordination, instead of subordinatsionnyj character is

In end of the head the question on a parity of corporate norms (both actually corporate, and legal) with the corporate right According to the author of dissertation is considered, the parity of actually corporate norms with the corporate right (as in narrow, and in a broad sense) depends on right-understanding type which the concrete researcher For the supporter of different variants of the sociological theory in its modern displays these two groups of norms actually concerns coincide For same of scientists who adhere to more conservative normativistskih positions, actually corporate norms can become right a part («the corporate right») only after official authorisation by the state In all other cases intraorganizational rules of behaviour of the organisations admit the part of system of social regulation operating in parallel with the right, but to the right not concerning Taking into account the carried out research, to the most comprehensible, in our opinion, is, normativistsky the approach as he allows to bring a certain reality in a question on delineation of ordering influence of various social regulators

As to corporate rules of law they, no doubt, act as structural elements of the corporate right (both in wide, and in narrow sense)

In the conclusion the basic conclusions on a theme of dissertational research are summed up and formulated, the short characteristic theoretical p is given the practical importance of work

In the end of work the list of the literature used during work on research

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A source: Zhitov Sergey Anatolevich.
the Right and corporate norms: the author's abstract of the dissertation of the master of laws: 12.00.01, Omsk,. 2010

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