ON THE CONSTITUTIONAL AND LEGAL FOUNDATIONS OF FREEDOM OF ECONOMIC ACTIVITY
Perfilov Eduard Konstantinovich, postgraduate student of the Russian Academy of Justice, assistant judge.
Place of work: Moscow Arbitration Court.
Annotation. The core of the economic rights of citizens, the Constitution of the Russian Federation in Article 34 defines the right to free use of abilities and property for entrepreneurial and other economic activities not prohibited by law. This article is interconnected by the general provision of Article 8 of the Constitution of the Russian Federation, according to which freedom of economic activity is guaranteed in the Russian Federation.
Key words: freedom of economic activity, constitutional legislation, constitutional and legal foundations of freedom of economic activity.
ABOUT CONSTITUTION-LEGAL BASES OF FREEDOM ECONOMIC ACTIVITY
Perfilov Edward Konstantinovich, the Russian Academy of Justice, the post-graduate student of a correspondence mode of study.
Place of employment: Arbitration court of Moscow.
Contacts of the
Edesl [email protected]
Annotation. Kernel of the economic rights of citizens the Constitution of the Russian Federation in article 34 defines the right to free use of abilities and property for enterprise and other economic activities not forbidden by the law. Given article is interconnected by general provisions of item 8 of the Constitution of the Russian Federation according to which in the Russian Federation are guaranteed economic activities freedom.
Keywords: economic activities freedom, the constitutional legislation, constitution-legal bases of freedom economic activity.
The Constitution of the Russian Federation enshrines the right to freedom of economic, including entrepreneurial activity, proclaimed in Article 22 of the UN Universal Declaration of Human Rights1. It is noteworthy that in its constitutional embodiment this right turns out to be a fundamentally new category not only for theory
constitutionalism, but philosophy and law in a broad conceptual gradation of legal sciences2.
A key component of freedom of economic activity is freedom of enterprise. As noted by V.D. Zorkin, economic freedom within the meaning of the Constitution of the Russian Federation presupposes, first of all, freedom of enterprise, which is a universal (integrated) principle of constitutional law that combines several relatively independent principles of legal regulation of relations in the field of entrepreneurial activity ( principle of freedom
2 Shershenevich G.F. General theory of law: Textbook. manual (according to the edition of 1910-1912) M., 1995. T.1. Vol. 1. pp. 39-59.
agreements, general permission principle, principle of freedom of competition, etc.)3.
According to E.I. Kolyushin, the Russian Constitution talks about the use of a person’s abilities and his property for entrepreneurial activity, but in practice this activity in many cases is based on the use not only and not so much of one’s own abilities and property, but the abilities of the property of others (hired labor). In the scientist’s opinion, this approach follows from the content of the concept of “entrepreneurial activity” and does not correspond to Art. 34 of the Constitution of the Russian Federation4. This point of view is shared by A.A. Bezuglov and S.A. Soldiers who propose to resolve at the constitutional level the issue of the right to use someone else’s labor in the process of entrepreneurial activity. It seems that this formulation of the question is quite logical and should be discussed and analyzed when potentially introducing amendments to the Russian Constitution.
As noted by M.V. Baglai, the right to freedom of economic activity provides for the free use by a person of his abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34 of the Constitution of the Russian Federation). In combination with the right of private property, such freedom of entrepreneurship acts as the legal basis of a market economy, excluding the state monopoly on the organization of economic life. This freedom is considered as one of the foundations of the constitutional system (Article 8 of the Constitution) 5.
The category of “freedom” is filled with special meaning in the text of the second chapter of the Constitution of the Russian Federation. The legislator used here such a terminological construction as “the right to freedom”. A number of articles in this chapter directly or indirectly transfer the principle of economic freedom into the content of the constitutional powers of the individual. In particular, it mediates the possibility of various types of economic activity: the right to freedom in the broad sense (Part 1 of Article 22), which determines the fundamental admissibility of any form of social activity of an individual; the right to move freely, choose a place of stay and residence, freely travel abroad and freely return to the Russian Federation (Article 27); the right to freely disseminate religious and other beliefs (Article 28); the right to freely produce and disseminate information (Article 29). Directly reveal the content of individual economic freedom in the Russian Federation: the right of everyone to freely use their abilities and property for entrepreneurial and other economic activities (Part 1 of Article 34); the rights of everyone to freely use their ability to work, choose their type of activity and profession (Part 1 of Article 37) and guaranteed freedom for everyone in various types of creativity and teaching (Part 1 of Article 44 of the Constitution of the Russian Federation).
The most well-known constitutions in the world contain entire sections in which individual rights and freedoms are enshrined. They usually include individual rights and freedoms (the right to life, dignity,
3 See: Commentary on the Constitution of the Russian Federation / Ed. V.D. Zorkina, L.V. Lazareva - M.: Eksmo, 2009. - 1056 p.
4 Kolyushin E.I. Decree. op. - page 206.
5 Constitutional law of the Russian Federation: textbook / M.V. Baglay. - 7th edition, and additional. - M.: Norma 2008. - 816 p.
personal integrity, etc.); political (the right to association, participation in the management of state affairs, etc.); socio-economic (freedom of enterprise, freedom of labor, private property rights, etc.); cultural (freedom of creativity, right to education, etc.).
In one of the most democratic constitutions of the modern world - the Italian Constitution, which has been in force since January 1, 1948, consists of 139 articles, 54 are devoted to the rights, freedoms and responsibilities of citizens. It was the Constitution of the Italian Republic that was one of the first in bourgeois society to establish that property can be state or private, while economic benefits belong to the state, societies or private individuals. Subsequently, these forms of ownership received their constitutional recognition in the constitutions of many states, including the Russian Federation.
Part One of the Italian Constitution, consisting of four sections, regulates the rights and duties of citizens, regulates issues of the individual legal status of a person and a citizen and the corresponding legal problems of civil society. It consists of chapters: “I. Civil Relations”, which deals with the personal and political rights and responsibilities of citizens; "II. Ethical and social relations” (family, health care, art, science, education); "III. Economic relations" (labor, trade unions, private initiative, property, cooperation, savings and credit); "IV. Political Relations" (elections, parties, petitions, access to public service, military service, taxes, loyalty to the Republic and observance of the Constitution).
Perhaps, such detailed and broad regulation of rights and freedoms in the field of civil and ethical-social, economic and political relations is not found in any other Constitution6. It could become a model for the development and improvement of constitutional legislation in Russia.
The normative content of freedom of economic activity as a constitutional principle includes, as evidenced by the practice of the Constitutional Court of the Russian Federation, first of all, the adoption of economic decisions free from any influence.
The constitutional principle of freedom of economic activity served as the basis when the Constitutional Court of the Russian Federation adopted the Resolution of
12/23/1997 No. 21-P “In the case of verifying the constitutionality of paragraph 2 of Article 855 of the Civil Code of the Russian Federation and part six of Article 15 of the Law of the Russian Federation “On the Fundamentals of the Tax System in the Russian Federation” in connection with the request of the Presidium of the Supreme Court of the Russian Federation” .
Clause 2 of Art. 855 of the Civil Code established a priority, later changed, for writing off funds from a bank client’s account if such funds are insufficient to satisfy all the requirements presented to him.
The essence of the decision comes down to ensuring the freedom of the bank client to dispose of their property, i.e. funds stored in deposits. The owner himself has the right to determine what to pay him in priority - wages or taxes.
6 Constitution of foreign states. - M., 1996.
The Constitutional Court came to the defense of freedom of economic activity and private property, since the new edition of clause 2 of Art. 855 of the Civil Code in fact turned out to be gross and unlawful government intervention in economic processes. This innovation imposed the obligation on enterprises to pay wages, and thus they received the right not to fulfill their contractual obligations to counterparties and commercial banks, resulting in a spiral of non-payments.
The principle of freedom of economic activity also underlies the concept of constitutional and legal framework for the activities of business companies and partnerships. Its supporting “structures” are the following:
Freedom of economic activity (Part 1, Article 8 of the Constitution);
Private by nature, the economic activity of corporations cannot develop in conflict with publicly significant goals; its implementation should not violate the rights and freedoms of other persons (Part 3 of Article 17 of the Constitution);
The state establishes the legal foundations of the single market (clause “g” of Article 71 of the Constitution);
In the process of establishing the legal foundations of the single market, the state can introduce restrictions on the freedom of economic activity of corporations (Part 3 of Article 55 of the Constitution), which must be strictly proportionate in nature (the principle of proportionality) and implemented in the form of a federal law.
The main principles of this concept were developed by the Constitutional Court of the Russian Federation in its decisions concerning joint-stock companies, limited liability companies and partnerships.
So, is freedom of enterprise only a function of public interest, as formulated by the legislator, or should it have the main content, as a constitutionally inviolable zone of the most important powers, such as without which the implementation of entrepreneurial activity is objectively impossible?
The Constitutional Court of the Russian Federation received a good opportunity to answer this question when considering the case on checking the constitutionality of the provisions of Art. 74 and 77 of the Federal Law “On Joint-Stock Companies”, which regulate the procedure for consolidating the outstanding shares of a joint-stock company and repurchasing the resulting shares.
In the Resolution on this case dated February 24, 2004 No. 3-P1, the Constitutional Court noted that freedom of economic activity is, first of all, the freedom to make strategic economic decisions made by the general meeting of shareholders and the board of directors. These are the decisions on the need to consolidate shares. The courts, exercising control over the decisions of the management bodies of joint-stock companies based on complaints from shareholders and holders of fractional shares, do not evaluate the economic feasibility of the proposed option of consolidating shares, since due to the risky nature of business activities, there are objective limits in the ability of the courts to assess the presence of business miscalculations in their activities. In addition, judicial control over the activities of the board of directors and the general meeting of shareholders during consolidation, entailing the redistribution of shareholder property, is carried out post factum, which objectively makes it difficult to assess the incentives that guided the management bodies of the joint-stock company, which have independent
ity and broad discretion when making business decisions.
Based on constitutional principles, the conclusions of the Constitutional Court about the objective limits in the ability of public authorities represented by the courts to evaluate strategic economic decisions are of a more general nature. Essentially, these are findings that, after a number of years have passed, it is difficult to establish the context for making these decisions. The passage of time leads to complex dynamics of legal relations; property passes from one person to another who in good faith believed that they were acquiring it from an impeccable legal owner. The principle of legal certainty, which is so often used in decisions of the European Court of Human Rights, requires taking into account the legitimate interests of bona fide purchasers and ensuring the stability of civil turnover. This conclusion of the Constitutional Court, in essence, is an answer to the question of whether a review of the results of privatization is permissible from the position of constitutional law and pan-European legal principles.
Specific issues related to the implementation of the right to freedom of economic activity are regulated by a large number of legislative acts, and primarily by the Civil Code of the Russian Federation. Civil legislation regulates relations between persons engaged in business activities or with their participation. The rules of this legislation apply to relations involving foreign citizens, stateless persons and foreign legal entities, unless otherwise provided by federal law. The Civil Code, this unique fundamental law of a market economy, introduces economic activity into the general framework of relations of any individuals and legal entities with other persons, enshrines freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs. The law is based on the need for the unhindered exercise of civil rights and ensuring the restoration of violated rights and their judicial protection. Legislative acts on economic activity include federal laws: dated July 24, 2007 N 209-FZ “On the development of small and medium-sized businesses”7, dated December 1, 2007 N 315-FZ “On self-regulatory organizations”8, dated
02/08/1998 N 14-FZ “On Limited Liability Companies”9, dated 10/26/2002 N 127-FZ “On Insolvency (Bankruptcy)”10, dated 07/16/1998 N 102-FZ “On Mortgage (Pledge of Real Estate)”11 and etc.
The Constitution of Russia, speaking about the right to free use of abilities and property, does not provide for any restrictions on property status or other criteria. Does the subject have enough abilities and property to carry out
7 "Collection of Legislation of the Russian Federation", 07/30/2007, N 31, art. 4006 // "Rossiyskaya Gazeta", N 164, 07/31/2007,
"Parliamentary newspaper", N 99-101, 08/09/2007.
8 "Collection of Legislation of the Russian Federation", 03.12.2007, N 49, art. 6076 // "Rossiyskaya Gazeta", N 273, 06.12.2007,
"Parliamentary newspaper", N 174-176, 12/11/2007.
9 "Collection of Legislation of the Russian Federation", 02.16.1998, N 7, art. 785 // "Rossiyskaya Gazeta", N 30, 02/17/1998.
10 "Collection of Legislation of the Russian Federation", 10.28.2002, N 43, art. 4190 // "Parliamentary newspaper", N 209-210, 02.11.2002, "Russian newspaper", N 209-210, 02.11.2002.
11 "Rossiyskaya Gazeta", N 137, 07/22/1998 // "Collection of Legislation of the Russian Federation", 07/20/1998, N 29, art. 3400.
of various types of economic activity, he determines himself. However, there are some restrictions in the current legislation; a person with full legal capacity (usually 18 years of age) can engage in entrepreneurial activity.
By virtue of the constitutional principle of freedom of economic activity, citizens, exercising the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law, have the right to carry out it both individually - in the status of an individual entrepreneur, and through participation in an economic company, partnership or production cooperative, i.e. by creating a commercial organization as a form of collective entrepreneurship.
Recognition of the right to economic activity gives rise to certain obligations for the state, which act as guarantees of this right. State bodies, for example, cannot refuse to register an enterprise, citing inexpediency. They must fight racketeering and extortion, and protect the property of private entrepreneurs on an equal basis with state property. Through its entire economic policy, the government of a rule-of-law state promotes and helps private business, encourages its development and protects it from illegal attacks. Any damage caused to the enterprise due to the fault of government officials is subject to compensation.
The rights of ownership, use and disposal of property, as well as freedom of entrepreneurial activity and freedom of contracts may be limited by federal law, but only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the country's defense and state security (Part 3 of Article 55 of the Constitution), which corresponds to the provisions of Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, by regulating the entrepreneurial activities of commercial organizations, including joint-stock companies, through civil legislation, the federal legislator, in accordance with paragraphs “c” and “o” of Art. 71 of the Constitution of the Russian Federation is obliged to take into account that, within the meaning of the provisions of Part 3 of Art. 55 of the Constitution of the Russian Federation in conjunction with its Art. 8, 17, 34 and 35 possible restrictions by federal law on the rights of ownership, use and disposal of property, as well as freedom of enterprise and freedom of contract, based on general principles of law, must meet the requirements of fairness, be adequate, proportionate, proportionate and necessary for constitutional protection significant values, including the rights and legitimate interests of other persons.
As noted by the President of the Russian Federation V.V. Putin, the economic rights of citizens form the basis of the country's economic system. They reflect the boundaries of individual freedom in the economic sphere, adjust state policy in the economic sphere (especially in the free market, and in the taxation system). Russia's gradual transition to a market economy led to a certain transformation of the economic rights of citizens.
The President of the Russian Federation, as a guarantor of human and civil rights and freedoms, has also repeatedly emphasized that
The state's policies should be focused on promoting its social and economic development. Considering the gradual integration of the Russian Federation into the world community, clarity and consistency must be observed in the field of tax and business regulation12. It is necessary to ensure an adequate level of economic freedom, equal competition, strengthening the right of private property13, as well as creating conditions where “everyone’s wealth should be determined by his work and abilities, qualifications and efforts expended”14. All this applies fully to regulatory regulation and judicial protection of economic rights and freedoms.
Successful resolution of the problems of establishing and improving the institution of constitutional economic rights and freedoms of man and citizen in the Russian Federation is possible only subject to a deep and detailed scientific study of all
elements of the mechanism for the socio-economic and legal implementation of this group of rights. The construction and debugging of such a mechanism requires great effort both on the part of the legislative branch and through clear and justified measures taken by the executive and judicial authorities.
Currently, the system of implementation and protection of economic rights and personal freedoms in the Russian Federation is very far from perfect. The reasons for this state of affairs are multifaceted, however, the lack of a clearly thought-out legal concept of economic rights and freedoms as a constitutional and legal category is of decisive importance. As a result, this results in the absence of a general strategy for the socio-economic development of Russia, supported by social guidelines and provided with political and legal means.
The constitutional meaning of securing the right to freedom of economic activity implies that state policy should be aimed at creating conditions conducive to the economic development of the country. We need stable laws regulating economic and business activities, and the state must ensure their compliance. In modern conditions, a holistic, unified system of constitutional means for the protection and defense of economic rights and freedoms of man and citizen is needed, which could become the basis for all human rights legislation of the Russian Federation, human rights activities, as well as for human rights institutions in other branches of law.
Bibliography:
1. Budget message of the President of the Russian Federation to the Federal Assembly of the Russian Federation on budget policy in 2008 - 2010. March 9, 2007
2. Commentary on the Constitution of the Russian Federation / Ed. V.D. Zorkina, L.V. Lazareva - M.: Eksmo, 2009. - 1056 p.
3. Kolyushin E.I. Decree. op. - P. 206.
12 Budget message of the President of the Russian Federation to the Federal Assembly of the Russian Federation on budget policy in 2008 - 2010. March 9, 2007
13 Address of Russian President Vladimir Putin to the Federal Assembly of the Russian Federation May 10, 2006 // Rossiyskaya Gazeta 2006 May 11
14 Message from Russian President Vladimir Putin to the Federal Assembly of the Russian Federation on April 25, 2005 // Rossiyskaya Gazeta 2005. 26 April
4. Constitutional law of the Russian Federation: textbook / M.V. Baglay. - 7th edition, and additional. - M.: Norma 2008. - 816 p.
5. Constitution of foreign states. - M., 1996
6. Address of Russian President Vladimir Putin to the Federal Assembly of the Russian Federation May 10, 2006 // Rossiyskaya Gazeta 2006 May 11
7. Message from Russian President Vladimir Putin to the Federal Assembly of the Russian Federation on April 25, 2005 // Rossiyskaya Gazeta 2005. April 26// "Parliamentary newspaper", N 99-101, 08/09/2007.
8. "Rossiyskaya Gazeta", N 137, 07/22/1998// "Collection of Legislation of the Russian Federation", 07/20/1998, N 29, art. 3400.
9. "Collection of Legislation of the Russian Federation", 03.12.2007, N 49, art. 6076 // "Rossiyskaya Gazeta", N 273, 12/06/2007, "Parliamentary Gazette", N 174-176, 12/11/2007. Russian newspaper. 1998 December 10.
10. "Collection of Legislation of the Russian Federation", 07/30/2007, N 31, art. 4006 // "Rossiyskaya Gazeta", N 164, 07/31/2007
11. "Collection of Legislation of the Russian Federation", 02.16.1998, N 7, art. 785 // "Rossiyskaya Gazeta", N 30, 02/17/1998.
12. "Collection of Legislation of the Russian Federation", 10.28.2002, N 43, art. 4190 // "Parliamentary newspaper", N 209-210, 02.11.2002, "Rossiyskaya newspaper", N 209-210, 02.11.2002.
13. Shershenevich G.F. General theory of law: Textbook. manual (according to the edition of 1910-1912) M., 1995. T.1. Vol. 1 pp. 39-59
REVIEW
The relevance of the chosen research topic is beyond doubt, since it is determined by the theoretical and practical significance of the issue concerning the peculiarities of the constitutional and legal consolidation of economic activity.
The role of state regulation of the economy, somewhat underestimated during the initial stages of reforming the country's economic system, is now noticeably increasing. Moreover, state regulation of economic processes occurring in society today occupies a leading place among other areas of activity of the Russian Government.
In addition to the practical significance, the relevance of the topic chosen by the author also lies in the fact that the theory of constitutional law, developed by Soviet jurists, is experiencing a rebirth today, and therefore many institutions of this branch of Russian law need to be rethought and filled with their content with a new meaning that reflects the realities modern development of domestic legal science and practice. Such institutions also include a set of constitutional norms regulating the foundations of freedom of economic activity in the Russian Federation.
In this study, Perfilov E.K. demonstrated a high ability for research work, which was expressed in the logic of presentation, and in the ability to analyze and generalize material. The merits of the work include both the fairly high level of the theoretical part and the undoubtedly practical value of the analysis carried out and the proposals put forward to improve legislation.
Doctor of Law, Professor
This is a collective principle that means the use of a dispositive method in regulating the economic activities of entrepreneurs. Entrepreneurial activity is an activity carried out at one's own risk. The state and its bodies do not have the right to interfere in business activities, establish any plans, directives, etc. Regulation of business activities is carried out in two main ways: firstly, through civil legislation, which establishes the legal forms of economic relations, and, secondly, , through financial legislation establishing taxes on income from business activities and other objects of taxation;
4) diversity and equal protection of forms of ownership. The Constitution of the Russian Federation, unlike previous constitutions, establishes the equality of all forms of property, of which there are three: private, state and municipal. The Constitution of the Russian Federation also allows for “other forms of property”, but there are no other types of property. In addition, state and municipal property can be combined under the name “public property” - property that belongs to the entire people (state property) or the population of certain territories (municipal property), while the powers of the owner are exercised by state or municipal bodies. Subjects of private property can be individuals (citizens, foreigners) and legal entities (commercial and non-profit organizations).
Equality of forms of ownership means their equal legal regime, equal content of property rights, regardless of its form. It is not allowed to establish any restrictions or favors for one or another form of ownership. Equal protection of all forms of property is expressed in their equal protection by the norms of civil, criminal, and administrative law. When there is competition between subjects of state and private property rights, preference for any of them is not allowed.
The Constitution of the Russian Federation (Article 9) specifically identifies land and other natural resources as objects of property rights. It is established that these objects may be subject to ownership in all its forms. At the same time, Part 1 of Art. 9 implies the possibility of limiting the legal regime of ownership of land and natural objects. This norm establishes the condition for the exercise of ownership of these objects: land and other natural resources are used and protected in the Russian Federation as the basis for the life and activities of the peoples living in the relevant territory. As “peoples living in the relevant territory,” the Constitution of the Russian Federation primarily refers to indigenous small peoples who enjoy special protection under the Constitution of the Russian Federation (Article 69). Ownership of land and other natural resources is also limited by the need to refrain from causing damage to the environment (Article 36 of the Constitution of the Russian Federation).
Hello. What do you mean by economy? function?
there are rights and duties of citizens... there are principles... the constitution does not contain economic functions as such...
it establishes basic principles and rights -
Article 35
1. The right of private property is protected by law.
2. Everyone has the right to own property, own, use and dispose of it, both individually and jointly with other persons.
3. No one can be deprived of his property except by a court decision. Forced alienation of property for state needs can only be carried out subject to prior and equivalent compensation.
4. The right of inheritance is guaranteed.
Article 37
1. Labor is free. Everyone has the right to freely use their ability to work, choose their type of activity and profession.
2. Forced labor is prohibited.
3. Everyone has the right to work in conditions that meet safety and hygiene requirements, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment.
4. The right to individual and collective labor disputes is recognized using the methods for resolving them established by federal law, including the right to strike.
5. Everyone has the right to rest. A person working under an employment contract is guaranteed the length of working hours established by federal law, weekends and holidays, and paid annual leave.
Article 57
Everyone is obliged to pay legally established taxes and fees. Laws that establish new taxes or worsen the situation of taxpayers do not have retroactive effect.
Good afternoon. It all depends on the doctrinal approach to determining the economic function of the state
For example:
SARATOV BRANCH OF THE INSTITUTE OF STATE AND LAW
RUSSIAN ACADEMY OF SCIENCES
THEORY OF GOVERNMENT AND RIGHTS
N.I. MATUZOV, A.V. MINOR
Approved by the Ministry of Education
Russian Federation as a textbook
For university students,
students in the direction and specialty
"Jurisprudence"
…
Economic function state is to develop and state coordination of the main directions of economic policy in a sustainable manner. At different stages of development of society, this function can manifest itself in different ways. It is very important to pose the question here. on the limits of state intervention in the economic sphere, on methods of state management of economic relations. If under the conditions of an administrative management system the economy is regulated primarily by directives, then under market relations it is primarily regulated by economic methods, i.e. through taxes, loans, benefits, etc. Now this function in modern Russia mainly comes down to the formation and execution of the budget, determining the strategy for the economic development of society, ensuring equal conditions for the existence of various forms of ownership, stimulating production, entrepreneurial activity, etc.
THEORY OF GOVERNMENT AND RIGHTS
2nd edition, revised and expanded
A.V. MELEKHIN
Economic function-ensuring normal functioning and development of the economy, including through the protection of existing forms of ownership. In a democratic legal society, the economic function of the state excludes political and administrative forms and methods of influencing the country’s economy and the behavior of subjects of economic relations. . They are regulated by the state precisely by economic methods., first of all, through the development of a long-term state program for economic development. The main aspects of this program are financial, investment, tax, and monetary policies.
To carry it out, the state creates an appropriate legal framework, encouraging those areas of the economy and domestic producers (state credit, financial subsidies, tax exemptions, etc.) that play a special role in the development of the country’s economy, the creation of new jobs and employment of the population.
In relation to some particularly important sectors of the economy, such as energy, nuclear, defense industry, astronautics, mechanical engineering, communications, etc., the state, as a rule, exercises direct control, acting as the owner or shareholder.
The state program for economic development also provides for financing scientific, technical and industrial research programs, especially in the field of promising and priority areas.
Thus, we can say that government intervention in the economy is, as a rule, reduced to, To:
- development of economic policy;
- management of enterprises and organizations that are state property;
- establishing the legal framework of the market and pricing policy;
- regulation of foreign economic relations of the state. This function of the state has changed greatly during the historical existence of the state from complete non-interference in the economy to complete control of all economic activities and regulation of all issues of economic life. In modern conditions, the economy develops on the basis of self-regulation. Government intervention has certain limits.
INSTITUTE OF LEGISLATION AND COMPARATIVE LAW
UNDER THE GOVERNMENT OF THE RUSSIAN FEDERATION
THEORY OF GOVERNMENT AND RIGHTS
TEXTBOOK FOR LAW UNIVERSITIES
Under general editorship
Doctor of Law, Professor,
Honored Scientist of the Russian Federation
A.S. PIGOLKINA
2. Economic. Reflects the degree of state participation in economic processes, the level of its influence on the economy.
The state, to one degree or another, inevitably intervenes in the economic life of society. It protects various forms of property (including private), pursues a certain fiscal policy (organizes and ensures the collection of taxes and other obligatory payments to the budget), protects the freedom of all forms of economic activity not prohibited by law, and carries out foreign economic relations.
When characterizing the economic function of the state, it is necessary to take into account whether it is carried out in the conditions of a distribution economy or in the conditions of market relations. In the first case, relying on a centralized system of economic management, the predominant share of state ownership in the economy, the state directly participates in economic activity: it pursues a strict planned policy, determines production volumes, distributes material and financial resources, in other words, monopolistically regulates economic relations. In the second case, direct interference in the economic activities of society is noticeably reduced. With market relations, freedom of entrepreneurial activity, diversity and equality of all forms of ownership, and fair competition, the economy develops primarily on the basis of self-regulation, supplemented by targeted regulation by the state<*>. The state mainly determines the economic strategy for the development of society, establishes the legal framework (regulators) of market relations and pricing policy, protects and protects property, providing equal opportunities for the functioning of its various forms (state, municipal, private, etc.), carries out foreign economic activity, and also fights flawed forms of farming that are harmful to society.
In modern conditions, the state, using various methods and levers, supports the liberal economy, regulating relations between producers and consumers, establishing, if possible, the same rules of business in market conditions, taking measures for the normal and efficient functioning of the economy, ensuring its competitiveness.
The tax system has always been and remains one of the effective levers of influence of the state on the economy. Mandatory payments - taxes, fees, duties - constitute the main revenue part of the state budget. To monitor the correctness of tax calculations and timely payment, special government bodies are created. In Russia, for example, the State Tax Service has been created for these purposes, the tax police, and financial intelligence agencies operate.
That is, the economic function lies in the limits and methods of the state’s influence on economic relations.
Now according to the Constitution
This function is most fully described in Art. 8
Article 8
1. The Russian Federation guarantees the unity of the economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity.
2. In the Russian Federation, private, state, municipal and other forms of property are recognized and protected equally.
Hello Vasily!
The effect of the constitutional principles of the unity of economic space and
free movement of goods, services and financial resources (Part 1 of Article 8 of the Constitution of the Russian Federation) are aimed at creating a constitutional regime
stability of economic turnover, in particular to ensure
fair distribution of business risks. Constitutional
the principle of freedom of economic activity (Part 1, Article 8) dictates
the need to find an optimal ratio, a combination of public and
private interests. The constitutional principle of recognition and
protection of private, state, municipal and other
forms of ownership (Part 2, Article 8).
Economic rights also include others named in
Constitutional rights, for example, the right to move freely, choose
place of stay and residence (Article 27 of the Constitution of the Russian Federation).
“Constitutional rights and freedoms are guaranteed to a citizen regardless of
place of residence, including the presence or absence of residential premises
for permanent or temporary residence"8.
The implementation of economic rights is significantly influenced by the right
property, including ownership of real estate and land (Article 35,
36).
In accordance with Article 35 (Part 3) of the Constitution of the Russian Federation
no one can be deprived of his property except by a court decision.
The term “deprived” means the compulsory nature of the termination of the right
private property and presupposes the existence of a dispute, which is mandatory
order requires judicial control. Forced alienation of property,
as a general rule, can be produced only under the condition
provisional and equivalent compensation."
The common economic space is ensured
free movement of goods, money, labor and
information. For this purpose, the establishment of constitutional justice on the territory of Russia is not allowed // Journal of Russian Law. 2005. N 12. P. 30 – 36).
Russia has begun to assert itself in the world with a new political face, a new economy, a new system of government and, we believe, a new historical role.
At the same time, most of the acts designed to develop the provisions of the Constitution of the Russian Federation have not yet been adopted, including and primarily in the sphere of state influence on society and the economy, in the sphere of ensuring freedoms, including primarily economic ones. " It would not be much of an exaggeration to say that the entire Constitution, all its sections in their organic unity are related to the economic development of the country,
setting the basic logic of its functioning"(Bartsits I.N. Constitutional right to good (effective) governance: criteria, indicators, assessments // Constitutional and municipal law. 2013. N 11. P. 64 – 71).
In Part 1 of Article 7 of the Constitution of the Russian Federation
the most important principle is enshrined - the principle
social state. As noted by G.A. Gadzhiev, principle of freedom
economic activity is associated with the equivalent constitutional principle of the welfare state, but genetically they are different(Gadzhiev G.A. Economic efficiency, legal ethics and trust in the state // Journal of Russian Law. 2012. N 1. P. 10 – 21).
Part 1, Article 8 of the Constitution of the Russian Federation
- freedom of economic activity,
unity of economic space, free movement of goods, services and financial resources, support for competition.
Part 2, Article 8 of the Constitution of the Russian Federation
- recognition of the diversity of forms of property and their equal protection.
Article 10 of the Constitution of the Russian Federation
the fundamental principle of the organization of power in a rule-of-law state is established - the principle of separation of powers between legislative, executive and judicial bodies
states. The constitutional approval of the principle of separation of powers and the transition to market relations in economic and other spheres of life, the consolidation of various forms of ownership determined
change in the type of activity of the executive branch. There was a limitation in the scope of using methods of direct directive management of its objects (enterprises, institutions, organizations, etc.). Along with this, methods of registering objects of management, licensing, control and supervision, lending, taxation, etc. have become widely used (Khusainov Z.F. Economic function of Russian statehood: issues of theory, history and political and legal practice: Dis.... Doctor of Law. Sci. Academy of Economic Security. Kazan, 2008. P. 210).
Part 1, Article 34 of the Constitution of the Russian Federation the right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.
Part 2, Article 34 of the Constitution of the Russian Federation
prevention of economic activities aimed at monopolization and unfair competition.
Article 57 of the Constitution of the Russian Federation
establishes the constitutional obligation of everyone to pay legally established taxes and fees. The definition of “everyone” extends this obligation both to citizens of the Russian Federation and to foreign citizens and stateless persons who are taxpayers. As noted by G.A. Gadzhiev and S.G. Pepelyaev, emphasizing “supralegal” meaning of the basic principles of taxation, serving to implement and protect the foundations of the constitutional system, “the general principles of taxation and fees guide and bind ... the legislative branch, having a “reference value” for it(Gadzhiev G.A., Pepelyaev S.G. Entrepreneur - taxpayer - state. M., 1998. P. 186, 191).
Article 71 of the Constitution of the Russian Federation
the establishment of the foundations of federal policy and federal programs in the field of economic development of Russia are considered issues within the jurisdiction of the Russian Federation. Economic policy determines the long-term and current goals of the country's economic development(Khusainov Z.F. Economic function of Russian statehood: issues of theory, history and political and legal practice: Dis.... Doctor of Law. Academy of Economic Security. Kazan, 2008. P. 218).
Part 1, Article 74 of the Constitution of the Russian Federation
preventing the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources.
The economic basis of the constitutional system of the Russian Federation is the social market economy, which is in its infancy, within the framework of which the production and distribution of goods and benefits are carried out mainly through market relations. Their participants are private business entities competing with each other. The Russian Federation supports this competition, and also takes measures to prevent monopoly privileges and exercises appropriate control.
“In the Russian Federation,” states the Constitution (Article 8), “the unity of the economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity are guaranteed.”
The Russian Federation also has the Law of March 22, 1991 “On Competition and Restriction of Monopolistic Activities in Commodity Markets” (with amendments and additions). The Law defines the organizational and legal framework for preventing, limiting and suppressing monopolistic activities and unfair competition and is aimed at providing conditions for the creation and effective functioning of commodity markets, to combat local separatism.
The law prohibits actions of an economic entity occupying a dominant position that have or may result in restriction of competition and (or) infringement of the interests of other economic entities or citizens, including such actions as the withdrawal of goods from circulation in order to create or maintain a shortage in the market , price increases, inclusion of discriminatory conditions in the contract that put the competitor in an unequal position compared to other business entities; creating obstacles to market access (exit from the market) for other economic entities; violation of the pricing procedure established by regulatory enactments, etc.
The law prohibits and, in accordance with the established procedure, invalidates, in whole or in part, agreements (concerted actions) reached in any form between competing business entities (potential competitors) that have (or may have) a total market share of a certain product of more than 35 percent, if such agreements (agreed actions) have or may result in a significant restriction of competition, including agreements or concerted actions aimed, in particular, at establishing (maintaining) prices (tariffs), discounts, surcharges (surcharges), markups;
increasing, decreasing or maintaining prices at auctions and trades; division of the market according to a territorial principle, according to the volume of sales or purchases, according to the range of goods sold, or according to the circle of sellers or buyers (customers).
The law prohibits government bodies from adopting acts and (or) taking actions that limit the independence of business entities, create discriminatory or, on the contrary, favorable conditions for the activities of individual business entities, if such acts or actions have or may result in restriction of competition and (or) infringement interests of business entities or individuals.
The Law provides for state control over compliance with antimonopoly legislation when acquiring shares (stakes) in the authorized capital of business entities. Promotion of the formation of market relations based on the development of competition and entrepreneurship, prevention, limitation and suppression of monopolistic activities and unfair competition, as well as state control over compliance with antimonopoly legislation are entrusted to the federal antimonopoly body.
Creating a social market economy. The Russian Federation strives to ensure freedom of economic activity, entrepreneurship and labor, fair competition and public benefit, so that state regulation of economic life is carried out in the interests of the individual and society, and economic relations are built on social partnership between the individual and the state, the employee and the employer, the Producer and the buyer.
In the conditions of a developing market economy in Russia, the production and distribution of goods is carried out by both private and state enterprises and institutions, including enterprises and institutions of the constituent entities of the Russian Federation.
The state, in various forms, must bear responsibility for the most important aspects of the organization of production and distribution in the country as a whole, especially for those that most affect the interests of the population. We are talking, first of all, about the reliability of supplying the population with everything necessary; on guarantees of production growth and ensuring the participation in production and distribution of all able-bodied persons (i.e. employment);
on mitigating the consequences of economic instability (price regulation, etc.) or fluctuations in demand in the international market;
about relieving internal tension in regions and between certain spheres of life and groups of people.
The economic system of the Russian Federation is characterized by a variety of forms of ownership. Regulation of property relations is carried out through various legal norms, the central place among which belongs to constitutional norms - the basis of all legal regulation of property relations.
Constitutional regulation of property relations has its own specifics. It is expressed in the fact that the main task is to legally consolidate the forms of ownership recognized by the state. Thus, it is constitutional norms that decide what forms of property are recognized and guaranteed by the state.
The Constitution of the Russian Federation (Article 8) proceeds from the fact that the economic system of the Russian Federation is characterized by property in its various forms - private, state, municipal, etc.
The Constitution also establishes (Article 9) that land and other natural resources may be in private, state, municipal and other forms of ownership. They are used and protected in the Russian Federation as the basis for the life and activities of the peoples living in the corresponding territory.
The Constitution provides (Article 36) that citizens and their associations have the right to own land in private ownership. Possession, use and disposal of land and other natural resources is carried out by their owners freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.
The conditions and procedure for the use of land are determined on the basis of federal law. Currently, in accordance with the Decree of the President of the Russian Federation of October 7, 1993 “On the regulation of land relations and the development of agrarian reform in Russia”, citizens and legal entities - owners of land plots have the right sell, inherit, donate, pledge, rent, exchange, as well as transfer a land plot or part of it as a contribution to the authorized funds (capitals) of joint-stock companies, partnerships, cooperatives, including those with foreign investments.Citizens and legal entities persons can form common joint or common shared ownership by voluntary association of land plots, land shares (shares) belonging to them.
The Russian state protects property in its various forms on an equal basis. “In the Russian Federation,” it is indicated in Art. 8 of the Constitution, private, state, municipal and other forms of property are equally recognized and protected.” The Constitution also emphasizes (Article 35) that the right to private property is protected by law.
The most important directions for creating a market economy in Russia are privatization and denationalization of economically significant property. With all the critical approach to voucher privatization and, in general, to the methods and forms of privatization in the country, in general it cannot be denied that as a result of it, the foundations of a market economy were laid in Russia. Moreover, the gradual abandonment of state regulation of the economy is accompanied by its commercialization and, in fact, capitalization. Often this process takes ugly forms, but the main thing is that a fundamentally different economy, a different system of economic relations, and completely new business entities are created.
The Constitution of the Russian Federation establishes (Article 35) that in Russia everyone has the right to own property, own, use and dispose of it, either individually or jointly with other persons. No one can be deprived of his property except by a court decision. Forced alienation of property for state needs can only be carried out subject to prior and equivalent compensation.
In Russia, property relations not provided for by the Constitution are regulated by the Civil Code and other federal legislative acts, as well as legislative acts of the republics within the Russian Federation, territories, regions, federal cities, autonomous regions and autonomous districts, issued within the limits of their powers.
Legislative and doctrinal approaches to the definition of the concept of “economic activity”
The right to carry out economic activity is one of the basic constitutional rights of man and citizen. According to Art. 34 of the Constitution of the Russian Federation “everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.” Along with other rights and freedoms enshrined in Ch. 2 of the Constitution of the Russian Federation, this right is inalienable and belongs to everyone from birth. Freedom of economic activity is proclaimed and guaranteed by Art. 8 of the Constitution of the Russian Federation as an element of the constitutional status of the state.
Having secured the right of everyone to conduct economic activity, the Constitution of the Russian Federation defined the basic principles of its implementation. So, according to Part 2 of Art. 34 of the Constitution of the Russian Federation, economic activities aimed at monopolization and unfair competition are not allowed. Constitutional norms (Article 8) guarantee the unity of the economic space, the free movement of goods, services and financial resources, and support for competition.
According to G. A. Gadzhiev, “in constitutional law, economic freedom is one of the most important constitutional principles, which together form what is considered the foundations of the constitutional system. This constitutional principle has normative content: various kinds of commands, prohibitions, imperatives. Economic freedom in law exists both as a principle and as a norm (Article 8 of the Constitution of the Russian Federation).”
According to the fair assertion of E.P. Gubin, the implementation of the constitutional provision on the principle of freedom of economic activity will allow dramatic progress not only in the field of economics, but also in all other spheres of life of our society 1 . As the President of the Russian Federation V.V. Putin noted in his annual message to the Federal Assembly of the Russian Federation on December 3, 2015, “it is with this - freedom of enterprise, the expansion of this freedom of enterprise - that we must respond to all the restrictions that they are trying to create for us.”
Economic relations are based on the recognition and protection of private, state, municipal and other forms of property (Article 8 of the Constitution of the Russian Federation). As a constitutional right, the right to private property is protected by law. Everyone has the right to own property, own, use and dispose of it, both individually and jointly with other persons (Article 35 of the Constitution of the Russian Federation).
As G.D. Sadovnikova points out, economic freedom is possible only in conditions of protection and protection by the state of all forms of property, including private property. The state, represented by its bodies and officials, is obliged to protect, along with other forms of private property, and ensure its inviolability.
According to Art. 18 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen determine the meaning, content and application of laws, the activities of legislative and executive power, local government and are ensured by justice. Thus, the constitutional right to freely carry out economic activity is one of the basic provisions underlying economic legislation, the relevant sphere of activity of state authorities and local self-government, as well as economic justice.
Drawing a distinction between hired labor and independent economic activity, the Constitutional Court of the Russian Federation, in Resolution No. 10-P of April 23, 2012, noted that the Constitution of the Russian Federation, in accordance with the goals of the social state enshrined in its art. 7 (Part 1), guarantees everyone both freedom of labor and the right to freely dispose of their abilities to work, choose their type of activity and profession, and the right to protection from unemployment (Article 37, Parts 1 and 3), and also proclaims the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34, Part 1). The ways in which citizens can exercise these constitutional rights include hired labor carried out in a freely chosen type of activity and profession on the basis of an employment contract concluded with an employer, as well as independent economic activity carried out in a freely chosen field individually or jointly with other persons by creating a commercial organization as a form of collective entrepreneurship. By giving preference to one method or another, citizens agree with the legal consequences that are determined by the federal legislator - based on the essence and target orientation of the corresponding type of socially useful activity and the actual position of the person in the relations generated by it - the legal status of the subjects of this activity, including the rights and obligations , as well as state guarantees for their implementation and liability measures.
In this regard, it seems particularly important to determine the content of the concept of “economic activity” and its relationship with related categories.
It should be noted that the legislation of the Russian Federation does not have a legal definition of economic activity. However, the “inventory” carried out shows that the term in question is used in regulatory legal acts, including laws, often and for various purposes.
So, ch. 22 of the Criminal Code of the Russian Federation is devoted to crimes in the sphere of economic activity. Article 28 of the Code of Criminal Procedure of the Russian Federation determines the rules for terminating criminal prosecution in cases of crimes in the field of economic activity.
The Law on the Protection of Competition uses the phrase “economic activity” to define the concept of “coordination of economic activity” (Article 4), as well as when introducing rules prohibiting its implementation (Part 5, Article 11). For coordination of economic activities of business entities, which is unacceptable in accordance with the antimonopoly legislation of the Russian Federation, the Code of Administrative Offenses of the Russian Federation provides for administrative liability (Part 2 of Article 14.32 of the Code of Administrative Offenses of the Russian Federation).
Article 3 of the Tax Code of the Russian Federation, defining the basic principles of legislation on taxes and fees, contains a ban on the establishment of taxes and fees that limit or create obstacles to the economic activities of individuals and organizations not prohibited by law.
Chapter 13 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation” is devoted to economic
activities and financial support in the field of education, ch. III Federal Law of July 17, 1999 No. 176-FZ “On Postal Services” - the fundamentals of economic activity in the field of postal communications; Ch. II Federal Law of August 3, 1995 No. 123-FZ “On Livestock Breeding” - the fundamentals of economic activity in the field of livestock breeding.
Article 1 of the Arbitration Procedure Code of the Russian Federation proclaims that justice in the field of business and other economic activities is carried out by arbitration courts. Article 27 of the Arbitration Procedure Code of the Russian Federation, determining the jurisdiction of cases, establishes that the arbitration court has jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities. Consequently, the question of qualifying an activity as economic is raised to determine jurisdiction and is the subject of consideration by various courts.
Thus, canceling the decisions and rulings of the lower courts made in the case, the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 14700/12 dated April 2, 2013, forming the practice of applying the relevant legal norm, indicated: “The partnership conducts economic activities aimed at ensuring the ownership and use of the owners premises of the common property of an apartment building. Thus, the dispute about the amount of payment for the maintenance of the common property of a residential building, levied on the entrepreneur, arising from civil legal relations and affecting the results of business activities of both the entrepreneur and the partnership, is directly related to the economic activities of two business entities and, as expressly provided for in Article 28 Arbitration Procedural Code of the Russian Federation, subject to the jurisdiction of the arbitration court.”
Subordinate regulatory legal acts also regulate relations in the field of economic activity, using this concept. For example, Decree of the Government of the Russian Federation dated December 1, 2005 No. 713 approved the Rules for classifying types of economic activities as occupational risk. Decree of the Government of the Russian Federation of December 12, 2015 No. 1358 for 2016 established the permissible share of foreign workers employed by business entities carrying out certain types of economic activities in the Russian Federation.
The All-Russian Classifier of Types of Economic Activities (OKVED 2) OK 029-2014 (NACE Rev. 2)" states that economic activity takes place when resources (equipment)
research, labor, technology, raw materials, materials, energy, information resources) are combined into a production process aimed at producing products (providing services). Economic activity is characterized by the costs of producing products (goods or services), the production process and the output of products (provision of services).
Similar explanations were contained in OKVED OK 029-2001 (NACE Rev. 1) and OKVED OK 029-2007 (NACE Rev. 1.1). We believe that this interpretation is important for the purposes of the study of this monograph.
In the absence of a legislative definition, the definition of economic activity is analyzed and disclosed in educational and scientific literature. For example, O. M. Oleinik points out that “economic activity is one of the types of human economic activity, a form of individual participation in social production and a way of obtaining financial resources to support life activities.”
According to the position of E.P. Gubin and P.G. Lakhno, “economic activity is the process of reproduction of material and spiritual wealth, including production, distribution, exchange and consumption.” For modern economic activity in our country, scientists believe, it is characteristic that it: 1) follows from the existence of commodity production, market organization of the economy; 2) is associated with the process of reproduction of material goods, that is, it is of a commodity nature; 3) is embodied in the creation (production) of products (goods), in the performance of work, the provision of services of a material nature and (or) their distribution and (or) their use (distribution, exchange, consumption).
Belarusian scientists S.S. Vabishchev and I.A. Mankovsky believe that “in the most general form, economic activity is an activity of a value nature, aimed at creating material and intangible benefits.”
S. V. Belykh, summarizing the judgments expressed in the literature, came to the conclusion that “economic activity is the economic activity of individuals, their associations in the production, distribution, redistribution and consumption of material goods within the framework of commodity-money exchange, the prerequisites of which are ownership, use and disposal of these benefits to satisfy one’s own and others’ material needs” 1 .
Modern researchers in the field of economic law propose to define economic activity as a redistributive process of achieving efficiency at the stages of production, distribution, exchange and consumption of material and intangible goods (values, resources).
We believe that there are no contradictions in the above and other definitions of economic activity in the doctrine; they complement each other. We have also repeatedly noted that economic activity can be defined as reproductive activity, combining such stages as production, distribution, exchange, consumption. It is important to note that each of the constituent elements of economic activity is considered broadly in this context. For example, the production process is associated with the creation of material goods, including the processes of organization and management.
At the same time, we generally agree with A. Ya. Kurbatov, who proposes, based on the presence of a sign of professionalism, to classify economic activity as active (production and sale of goods, work, services) and passive (placement of funds in credit organizations, transfer of property for rent, in trust management, disposal of one’s own property, including by contributing to the authorized capital of organizations, etc.).
At the same time, we will express the opinion that doctrinal judgments and approaches available in normative legal and judicial acts are clearly not enough. There is a need to legislatively consolidate the concept under consideration, since the qualification of an activity as an economic activity entails endowing the entity carrying it out with rights, imposing responsibilities on it, establishing legal mechanisms for ensuring and protecting rights, as well as other legal consequences, the analysis of which is carried out in this monograph.