Summary: Legal regulation of entrepreneurial activity. Application of business regulations
51. State regulation of entrepreneurial activity: concept, types, grounds, limits.
State regulation of entrepreneurial activity is the management activity of the state, represented by the relevant authorized bodies, aimed at streamlining economic relations in the field of entrepreneurship in order to protect the public and private interests of the participants in these relations.
The state, represented by the competent authorities, performs an economic function, which is expressed in the following areas: ensuring state and public needs, priorities in economic and social development; formation of the state budget; environmental protection and use of natural resources; ensuring employment of the population; ensuring security and defense; implementation of freedom of entrepreneurship and competition, ensuring protection from monopoly; observance of law and order in the foreign economic activity of entrepreneurs and foreign investment.
State regulation of entrepreneurial activity can be classified depending on the degree of state influence on certain social relations in various sectors of the national economy. So, S. S. Zankovsky proposes the allocation of the maximum, average and minimum level (regime) of state regulation of the economy. The maximum level involves the use of all or most of the means of state regulation. A minimum level of regulation exists in relation to entrepreneurship associated with creative activities.
Taking into account the scope of application of certain means of influence, state regulation can be distinguished at the federal level, at the level of subjects of the Federation, at the level of the autonomous region and autonomous districts. These and other types of state regulation are reflected in federal laws and other legal acts.
State regulation of entrepreneurial activity does not undermine the basic principles of civil law (Article 1 of the Civil Code). The principle of inadmissibility of arbitrary interference in private affairs means that the legislator generally allows state intervention in the economy. Permissible (involuntary) interference is based on the law - state regulation of entrepreneurial activity. Arbitrary interference is illegal. In a word, intervention is different from intervention.
By virtue of h. 1 Article. 34 of the Constitution of the Russian Federation, any citizen has the right to engage in economic activities not prohibited by law. Therefore, any economic activity (including entrepreneurial) involves legal grounds. You can not engage in those types of entrepreneurship that are expressly prohibited by law. State regulation of entrepreneurship is limited by the law.
The situation is more complicated with the limits of state intervention in the regulation of entrepreneurial activity. Representatives of constitutional law believe that these limits must comply with the principle of proportionality (proportionality) and balance. However, this principle (as well as others) is not formulated in the Constitution of the Russian Federation, although, according to G. A. Gadzhiev, the principle of proportionality (proportionality) and balance follows from the analysis of individual constitutional provisions. A very interesting position: the constitutional principle is not explicitly expressed, but implied.
Guided by this principle, the authorities cannot impose obligations on citizens and legal entities that exceed the established limits of necessity arising from the public interest in order to achieve the goal pursued by this measure. Otherwise, state intervention in the sphere of entrepreneurship will be excessive. It remains to develop criteria on this score and create judicial practice, including the legal positions of the Constitutional Court of the Russian Federation,
In this regard, it is possible to single out the main directions of state-legal regulation of the economy in general and entrepreneurial activity in particular.
This is for example:
antimonopoly regulation of entrepreneurial activity;
the use of forms and methods of state planning and regulation (norms, regulations, quotas, a system of state, regional and municipal orders);
state regulation of the Russian national market;
state control over entrepreneurial activity;
state regulation of international economic relations.
- 2.1. The concept and principles of entrepreneurial activity.
- 2.2. Forms of entrepreneurial activity.
- 2.3. State regulation of entrepreneurial activity.
The concept and signs of entrepreneurial activity
The legal definition of entrepreneurial activity is contained in Part 2, Clause 1, Art. 1 of the Civil Code of the Republic of Belarus. Entrepreneurial activity is an independent activity of legal entities and individuals carried out by them in civil circulation on their own behalf, at their own risk and under their own property responsibility and aimed at systematic profit from the use of property, the sale of things produced, processed or acquired by these persons for sale. , as well as from the performance of work or the provision of services, if these works or services are intended for sale to other persons and are not used for their own consumption.
Entrepreneurial activity does not include handicraft activities, activities for the provision of services in the field of agro-ecotourism, the activities of individuals using their own securities, bank accounts as a means of payment or saving money purchases, as well as one-time sales by individuals at trading places in the markets and (or ) other places where trade can be carried out in accordance with the legislation, goods produced, processed or acquired by them (with the exception of excisable goods, goods subject to marking with control (identification) marks), classified as product groups defined by law, advocacy, private notarial activity.
Among the noted features contained in the definition of entrepreneurial activity, it is necessary to distinguish between the general ones inherent in any free activity. including entrepreneurial (independent and risky nature), and specific features of entrepreneurial activity (its focus on systematic profit and the need for state registration).
Let us consider in more detail each of the marked signs of entrepreneurial activity.
BUT. Entrepreneurial activity is an independent activity, that is, citizens and legal entities carry out entrepreneurial activity with their own power and in their own interest. If the activity is not independent, then it does not apply to entrepreneurial activity. In particular, the activities of the institution cannot be classified as entrepreneurial. Institutions, in addition to their main activities, can carry out entrepreneurial activities only insofar as this serves to achieve the goal for which they were created. This is explained by the fact that the institution is created by the owner for a given purpose (socio-cultural, managerial, etc.), which does not bring profit. By defining the purpose of the institution's activity and financing it, the owner limits the institution's legal possibilities.
Entrepreneurial activity is organized by a person at his own discretion, which, however, does not exclude its regulation by the state. So, in Art. 13 and 41 of the Constitution of the Republic of Belarus, as well as in Art. 22 and 45 of the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code) guarantees the right to engage in entrepreneurial activities not prohibited by law. It follows from Articles 2, 12, 15 and other Civil Codes that unregulated interference by the state and its bodies in the activities of an entrepreneur is not allowed. An entrepreneur has the right to apply to an economic court or a court of general jurisdiction with an application for the invalidation of non-normative acts of state bodies or local self-government bodies, and in cases provided for by law, normative acts that do not comply with the law or other legal acts and violate rights and protected by law the interests of the entrepreneur.
B. Entrepreneurial activity is an activity carried out by the subject at his own risk. Indeed, freedom of activity also implies bearing the risk of the consequences of the corresponding actions (inaction). If the activity is carried out not at one's own risk, then it does not apply to entrepreneurial activity. For example, the activities of state and other institutions cannot be classified as entrepreneurial also because, if the institution has insufficient Money subsidiary liability for his debts is borne by the owner of the relevant property (paragraph 2 of article 120 of the Civil Code).
The activity of an entrepreneur is aimed at making a profit. However, due to various reasons this result is not always achievable. In such cases, one speaks of commercial risk. Commercial risk is a normal market phenomenon associated with the possibility of adverse consequences for the entrepreneur. The reasons for such adverse effects can be different - subjective and objective.
If the reasons are objective, independent of the entrepreneur or other persons (natural disasters and other extraordinary and unavoidable circumstances under the given conditions), then entrepreneurs must take these circumstances into account and take the necessary measures in advance to eliminate or reduce their possible losses. Such measures include insurance. Moreover, along with insurance of specific commercial risks in insurance companies, entrepreneurs can, and in cases provided for by law, are obliged to engage in self-insurance by creating a reserve (insurance) fund at the expense of a part of their own profits, intended to cover any unforeseen expenses.
The subjective reasons for the occurrence of adverse consequences include non-fulfillment or improper fulfillment of obligations by the entrepreneur or his counterparties under the contract. In this case, the responsibility of the entrepreneur or his counterparty arises, which is expressed in adverse property consequences for the person concerned and is due to an offense on his part.
The entrepreneur is liable if he does not prove that the proper performance of the obligation was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions (natural disasters, hostilities, etc.). Guilt is a necessary condition for the liability of the entrepreneur, if it is expressly provided for by law or contract.
IN. Entrepreneurial activity is an activity aimed at systematic profit. In this case, we are talking about the main goal of the entrepreneur. If the extraction of profit is not the main purpose of the person's activity, then it is not considered as an entrepreneur, and its activity is not entrepreneurial.
In a market economy, the goal of entrepreneurship is not only the production of goods (works, services), which goes without saying as a means of achieving the goal of entrepreneurship, but also profit making. The current legislation legalizes the purpose of entrepreneurship - the systematic professional extraction of profit.
In entrepreneurial activity, each individual transaction is only a special link in the whole plan of the entrepreneur, drawn up in order to obtain the final result - profit.
Ultimately, it is not the field of activity that is important for an entrepreneur, which can be trading, intermediary, construction, transport, insurance, banking, investment and any other activity. For an entrepreneur, the main thing is the ultimate goal of activity - profit, systematic profit. In this sense, activity in any sphere of the economy (economy) is entrepreneurial, since it is aimed at making profit (the difference between the purchase price and the sale price). And the more profit this or that field of activity promises, the more attention from entrepreneurs it enjoys.
G. Entrepreneurial activity is an activity carried out by persons registered as entrepreneurs. Carrying out entrepreneurial activity without registration is prohibited. Incomes received as a result of such activities are subject to collection in the state revenue in accordance with the established procedure.
State registration, and in certain cases, licensing of entrepreneurial activity, is necessary to exercise control over it by society in cases expressly specified in the legislation.
Having considered the signs that characterize entrepreneurial activity, we can conclude that economic activity and entrepreneurial activity are in a certain relationship with each other: what is included in the content of entrepreneurial activity is characteristic of any economic activity. However, entrepreneurial activity is distinguished by a number of characteristic features, which allows us to speak of entrepreneurial activity as a narrower concept than economic activity.
Forms of entrepreneurial activity
The legal form of entrepreneurial activity is an external expression, the position of the subject conducting this activity fixed by law, the procedure for the formation and use of its property and liability in economic circulation.
This concept includes the following elements:
- - determination of the status of the subject itself and notification of this to the state authorities:
- - establishment of property relations both in relation to the creation of a base for entrepreneurial activity, and in relation to the distribution of its results;
- - distribution of responsibility within the chosen form and outside, to contractors and consumers.
There are the following forms of entrepreneurial activity:
- 1) without forming a legal entity (i.e. as an individual entrepreneur);
- 2) with the formation of a legal entity (in the form of: economic partnerships (full and limited); business companies(with limited liability, additional liability, joint-stock companies of open and closed type), unitary enterprises(on the right of economic management or operational management), production cooperatives and peasant (farm) households.
State regulation of entrepreneurial activity
State regulation of entrepreneurial activity is a purposeful activity of the relevant legislative and other bodies that, through a system of various forms and methods, ensure the achievement of goals and the solution of important economic, social and other tasks in the process of regulating economic relations.
State regulation is revealed through the functions of the state:
- 1. Protection of the economic law and order.
- 2. Formation of economic goals and the timing of their achievement.
- 3. Distribution and redistribution through the budget of income between industries and regions.
- 4. Stimulation through subsidies / subsidies to ensure the development of enterprises and industries in a given direction.
- 5. Control over compliance with economic legislation.
The most important forms of state regulation:
- 1. Planning - the organizational activity of the competent authorities of the state for the selection and setting of goals, the definition of priorities, the development of measures.
- 2. Forecasting - preparation of forecasts about the possible state of the economy, ways of its development.
- 3. Monetary policy - taxes, prices, lending.
- 4. Antimonopoly regulation - aimed at protecting market fundamentals, manifested in the creation of market conditions for competition.
Ways of state regulation:
- 1. Administrative and administrative - based on the authority of state power and include measures of prohibition, permission and warning.
- 2. Economic - implemented through economic regulators: prices, taxes, financial resources (benefits, loans, budget investments).
Entrepreneurial activity (entrepreneurship) - according to the civil legislation of the Russian Federation, an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law. The subjects of entrepreneurial activity in the Russian Federation may be citizens of the Russian Federation who are not limited in their legal capacity, Foreign citizens, stateless persons, as well as Russian and foreign legal entities. In the Russian Federation, the regulation of entrepreneurial activity is based on the norms of civil law, unlike most foreign countries, where entrepreneurial activity is regulated by the norms of trade (commercial, economic) law. This is how the legal dictionary defines entrepreneurship.
The issue of the legal foundations of state regulation of entrepreneurship cannot be disclosed without characterizing the content of the principles for implementing such a policy. The principles of state regulation of entrepreneurship are fundamental ideas enshrined in legal norms, in accordance with which the mechanism of Russian statehood in the field of entrepreneurship is organized and functions. These principles are part of objectively existing general principles state administration, which are enshrined in the current legislation and are used in the process of governing the country.
The principle of legality is a comprehensive legal principle. It applies to all forms of legal regulation, is addressed to all subjects of law. The main content of this principle is the requirement of the strictest observance of laws and by-laws based on them. The legitimacy of state regulation of entrepreneurship means that its measures comply with current legislation and are applied in the manner prescribed by law. A sufficient number of high-quality legal norms, along with high level their execution by all subjects of legal relations is the basis for ensuring the regime of the legality of the activities of economic entities. The principle of legality is the basis for the functioning of both the state as a whole and entrepreneurial activity in particular.
The principle of expediency of state regulation of entrepreneurship is that it should be used only when certain problems in the development of entrepreneurship can be solved with its help and when the negative consequences of its application do not exceed the positive effect achieved with its help. The purpose of the application of state regulation is to create obstacles to violations of legal norms.
The content of state regulation measures is subject to the principle of justice. Justice is one of the general principles of law, is the guiding principle of legal regulation. The fairness of state regulation is ensured by the fact that the rules of law establish the equality of business entities before the law and are expressed in accordance with the scope of the regulatory impact of the nature of the offense, in their proportionality.
The next principle of state regulation of entrepreneurship is the mutual responsibility of the state and business entities. At the same time, the state, which performs functions in this area through the legislative, executive and judicial authorities, is legally recognized as the main subject for ensuring the safety of entrepreneurial activity. The state must ensure not only the safety of every person, but also give guarantees in ensuring the safety of entrepreneurial activity.
Today, the provisions of the Constitution of the Russian Federation provide guarantees for entrepreneurial activity. The norms of Art. 35 in the Constitution, since it immediately contains three most important guarantees of entrepreneurial activity: no one can be deprived of his property except by a court decision, the expropriation of property for state needs can be made only on condition of preliminary and equivalent compensation; the right to inherit is guaranteed. The Constitution solves the main economic and legal problem - the problem of property. The term "property" and its forms in the Constitution are understood as forms of management carried out by various entities. In addition, a number of constitutional provisions provide a single economic and legal space in the country.
Of fundamental importance are the provisions of the Constitution that proclaimed Russia welfare state, whose policy, including in the field of economy and entrepreneurship, serves to create conditions for a decent life and free development of a person, and his rights and freedoms are declared the highest value.
Of great importance is the adoption of a number of such laws as the Law “On Joint Stock Companies”, new editions of the laws “On the Central Bank of the Russian Federation”, “On Banks and Banking Activities”, which established modern foundations regulation of the country's banking system, federal laws on international treaties, production sharing agreements and a number of other regulations.
For the development of competition, as one of the main directions for the formation of civilized conditions for entrepreneurial activity, it is important to provide legal support for development competitive environment and fight against unfair competition. Decree of the Government of the Russian Federation “On state program Demonopolization of the Economy and Development of Competition in the Markets of the Russian Federation (Main Directions and Priority Measures)” determined two areas of work: legal support for competition and development of programs for demonopolization and development of competition. It should be noted that the legislation of Russia reflects the features of its economy, the specifics of the legal system:
along with restrictions on the monopolistic activity of entrepreneurs - economic entities, measures are provided for the suppression of state monopolism - monopolistic actions (acts, agreements) of state authorities and administration,
along with the prohibition of the commission of monopolistic actions and the introduction of responsibility for this, various measures are envisaged to support the development of small and medium-sized enterprises and the disaggregation of monopolistic structures.
The problem of the need for state regulation of natural monopolies was recognized by the authorities only by 1994, when the rise in prices for their products had already had a significant impact on undermining the economy. At the same time, the reformist wing of the government began to pay more attention to the problems of regulating natural monopolies, not so much in connection with the need to stop price increases in the relevant sectors or ensure the use of the possibilities of the price mechanism for macroeconomic policy, but primarily in an effort to limit the range of regulated prices.
The first draft of the Law "On Natural Monopolies" was prepared by employees of the Russian Privatization Center on behalf of the State Committee for Administrative Offenses of the Russian Federation in early 1994. After that, the draft was finalized by Russian and foreign experts and agreed with the sectoral ministries and companies (Ministry of Communications, Ministry of Railways, Ministry of Transport, Minatom, Minnats, RAO Gazprom, RAO UES of Russia, etc.). Many sectoral ministries opposed the project, but the SCAP and the Ministry of Economy managed to overcome their resistance. Already in August, the government sent a draft law agreed with all interested ministries to the State Duma.
According to the Law "On Natural Monopolies", the scope of regulation includes transportation of oil and oil products through main pipelines, transportation of gas through pipelines, services for the transmission of electrical and thermal energy, rail transportation, services of transport terminals, ports and airports, public and postal services.
The main methods of regulation were: price regulation, that is, the direct determination of prices (tariffs) or the appointment of their maximum level; determination of consumers for mandatory service and / or establishment of a minimum level of their provision. Regulators are also required to control different kinds activities of subjects of natural monopolies, including transactions for the acquisition of property rights, large investment projects, sale and lease of property.
Foreign regulatory experience shows that the main thing in such activities is the maximum independence of regulatory bodies both from other government bodies and from the economic entities regulated by them, as well as the consistency of interests and areas of work of regulatory bodies, which will enable them to make politically unpopular decisions.
In the original draft of the Law, the regulators were expected to have a high degree of independence: long-term members of their boards could not be dismissed for any reason other than by court order; it provided for a ban on the combination of positions by members of the boards, ownership of shares in regulated companies, etc. However, in the final version, many progressive provisions borrowed from many years of regulatory practice in foreign countries were either softened or withdrawn, which calls into question the possibility of making decisions that are sufficiently protected from the influence of various political forces.
By 1995, only one system of regulatory bodies had been formed, operating outside the line ministries. These are the Federal and Regional Energy Commissions, established in 1992 to regulate tariffs for electricity and heat. Control over other natural monopolies was carried out by the relevant ministries (Ministry of Economy, Ministry of Fuel and Energy, Ministry of Railways, Ministry of Communications). Thus, the Ministry of Railways received permission to monthly index tariffs for transportation, taking into account the increase in prices for the main types of products consumed by its enterprises. The Ministry of Economy and the Ministry of Finance adjusted tariffs on a quarterly basis, taking into account financial condition industries.
However, even in the electric power industry until 1995 there were no fixed legal framework regulation. State control over the economic activities of natural monopolies was significantly weakened due to the transformation of many enterprises into joint-stock companies where industry interests began to dominate. At the same time, the federal government, while retaining controlling stakes in its hands, did not become actively involved in the mechanism of corporate and joint-stock management.
Simplified schemes of state regulation of natural monopolies, based on indexing tariffs (prices) and not accompanied by a thorough check of the reasonableness of costs and investment activities, allowed monopolists to easily bypass the restrictions that quasi-regulatory bodies put in their way (Price Department of the Ministry of Economy, Federal Energy Commission). The most important reasons for this situation were: lack of necessary legislative framework; uncertainty of the status of regulatory bodies, their dependence both on the government and ministries, and on regulated entities; lack of financial resources and qualified personnel.
Many cases initiated by the territorial departments of the SCAP of Russia on the facts of violations of the Law of the Russian Federation "On Competition and Restriction of Monopoly Activities on commodity markets» in 1994-1995 were associated with the actions of natural monopoly enterprises. Numerous cases of tariff overstatement, refusal to serve certain consumer groups, inclusion in contracts of additional conditions(participation in the construction of production facilities, transfer of residential premises, provision of material resources).
By January 1996, three presidential decrees were adopted on the creation of state services for the regulation of natural monopolies in the fuel and energy complex, communications and transport. In March-April, government decrees on the establishment of regulatory bodies were published, in particular, the number of their personnel was determined. However, at the end of May, the head of only one service was appointed - the Federal Energy Commission. The appointment of the Deputy Minister of Fuel and Energy to this post is a compromise between the government and regulated entities.
Thus, in the field of creating a legislative and institutional framework for the regulation of natural monopolies, some important and necessary measures have been taken, but much remains to be done both in terms of building an effective regulatory system and in terms of restructuring industries, which will make it possible to form a more compact and manageable sphere. regulation.
With the beginning of the reforms, the problem of creating a regulatory framework for the insolvency of economic entities became an urgent practical task. The significance of the institution of insolvency lies in the fact that, on its basis, insolvent entities are excluded from civil circulation, and this leads to the improvement of the market, increasing the safety of the functioning of business entities.
The Law "On Insolvency (Bankruptcy)" is one of the most important for the economy of any country. It is the way the bankruptcy procedure is structured in the country that determines the basic "rules of the game" for both industrial giants and small shops.
The new Bankruptcy Law (dated October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”) does not close all loopholes for financial fraud, but eliminates the most egregious of them.
The previous version of the Russian Bankruptcy Law was extremely controversial, and in fact contributed to the creation of a real industry of custom-made bankruptcies in Russia. The new law does not close all loopholes for fictitious bankruptcies, does not solve the problem of judicial arbitrariness, it does not "resolve" the situation when an enterprise falls into bankruptcy due to the fault of the state, which does not pay the plant for the products ordered by it. And yet this law is an undoubted step forward, which everyone has been waiting for.
The main thing is that now it will become much harder to bankrupt an enterprise, and the procedure itself will be more complex, multi-stage, and controlled.
Bankruptcy ceases to be a "shot in the temple" when, by pulling the trigger, that is, by starting the bankruptcy procedure, you can no longer fix anything.
Instead of kicking out money - financial recovery.
What is bankruptcy anyway? This is when an enterprise cannot pay off its debts, even if it sells all its property. In our faltering economy, it is often impossible to immediately understand whether the enterprise has actually reached the “hands”. Therefore, only bankruptcy proceedings are related to the bankruptcy procedure itself. All other procedures (supervision, financial recovery, external management) are essentially pre-bankruptcy.
According to the old law, anyone to whom the enterprise owed money could declare bankruptcy, and he cannot collect his debt from it. That is, bankruptcy solved completely different problems - not the liquidation of an enterprise that had run aground and "clogged" the economic horizon, but the satisfaction of one or another specific debtor. The law was written not to improve the economy as a whole, but for the benefit of specific business entities. The bankruptcy procedure could be started if the debtor could not repay a debt in the amount of more than 500 minimum wages for 3 months. For these meager debts, it was possible to change the owner of any huge enterprise. The new law establishes a clearly fixed amount of one hundred thousand rubles. Changing the amount of debt does not matter. It is important why the debtor does not pay. To find out, before starting bankruptcy, a debt collection procedure must be completed. The court applies the entire arsenal of methods: seizure and sale of property, a ban on transactions without resorting to bankruptcy.
In the new law, for the first time, the figure of the creditor state appears: if you owe the treasury, it, along with other creditors, will demand its full. The previous law did not give the state the right to vote in bankruptcy proceedings - representatives of the state could only be present at meetings of creditors and in arbitration proceedings, without the right to vote. On the other hand, the old law required that the claims of the state be satisfied almost in the first place. This was a serious contradiction, a source of confusion and abuse. The new law equalizes the rights of the state and all other creditors: they participate equally in meetings and receive their own.
In general, the appearance of the "queue" in which creditors "stand" to get their money from the debtor is completely changing. In the old law, it was as follows: first, legal costs were covered, then - in descending order - current payments, payment for the work of an arbitration manager, compensation for harm to health, wages of employees of the debtor enterprise, collateral requirements, mandatory payments to the budget, other obligations. The new law gives a different sequence: legal costs, current payments, payment for the work of an arbitration manager, compensation for harm to health, wages of employees of the debtor enterprise, and other obligations.
Special bankruptcy regimes - as a rule, softer ones - were introduced by the old law for city-forming enterprises. In addition, there is a separate law on fuel and energy companies. The new law introduces special bankruptcy regimes for subjects of natural monopolies and military-industrial complex enterprises. An interesting question is whether it will be possible to bankrupt entire cities and regions under the new law. Today, they are trying to solve it within the framework of the commission of Dmitry Kozak (administration of the President of the Russian Federation), since it is closely connected with the problem of local self-government. So far, we have agreed that, if the region becomes insolvent, direct control from the federal center can be introduced.
I would like the law to clearly spell out the principles by which it is possible to separate a temporary debtor from a truly insolvent one. We propose the following criterion: an enterprise cannot cover its liabilities within three months with liquid assets. Liquid assets should be understood as money, securities, receivables, paid but not returned, VAT, inventory.
The new law, like the old one, leaves room for the arbitrariness of bankruptcy creditors and judges. We need clear rules - based on the financial statements of the debtor.
Entrepreneurial activity in modern conditions requires state regulation, thanks to which the private interests of its specific subjects will be combined with the public law interests of the whole society. In the system of measures of such regulation in the Russian Federation, licensing of this activity has become widespread.
Business licensing is a relatively new phenomenon in Russian legislation However, certain legal problems have emerged in the application of the licensing mechanism. Their solution becomes a condition for its effective functioning.
State licensing of entrepreneurship until recently was the main element of such regulation. Officials had a very convenient mechanism: they could always check how licensed firms were working, quickly stop violations by warning, suspending or revoking a license. At the same time, licensing, by setting unnecessary bureaucratic barriers in the way of entrepreneurs, reduces, as practice has shown, the number of market participants, and therefore weakens competition. This is dangerous for the economy, especially in the conditions of the almost complete absence of public control over the activities of the bureaucratic machine. Of course, the actions of an official can be challenged in court, and he very often takes the side of the entrepreneur. However, not always businessmen dare to start a trial. Sometimes you have to wait for a court decision for quite a long time, and during this time officials can paralyze the activities of the obstinate.
But state licensing has another drawback: the possibility of using it to eliminate competitors. Entrepreneurs who manage to get along with supervisory authorities initiate checks on competitors, either to obtain classified information or just to ruin them.
Now only those types of entrepreneurial activities fall under the law on licensing, "the implementation of which may entail damage to the rights, legitimate interests, health of citizens, defense and security of the state, the cultural heritage of the peoples of the Russian Federation and the regulation of which cannot be carried out by other methods than licensing". In addition, now a license is issued for a period of at least five years (under the old law - at least three). The powers of the licensing authorities, the procedures for issuing, reissuing and revoking a license are specified. Finally, new law introduces an exhaustive, much shorter than in the old version, list of licensed activities.
However, the unexpected happened: many professional market participants who were affected by the abolition of licenses have a negative attitude towards it. The main motive: a stream of non-professionals and outright crooks will pour into the market, who will dump and make quality work unprofitable. Particularly dissatisfied realtors managing the real estate market. The appearance on it of new participants who jumped out “like the devil out of a snuffbox” can lead to lower prices for services and deceive citizens.
But the authors of the reform do not at all renounce administration in the sphere of entrepreneurship. The removal of barriers to entry into the market is compensated by control over activities directly in the market - new mechanisms for regulating entrepreneurial activity are being introduced for Russia. Thus, the new Code of administrative offenses(CoAP). It provides for administrative disqualification of market participants who violate the law - a ban on certain activities or holding certain positions for up to three years. Only a court can apply such a sanction.
It should also be noted that no one has canceled the mandatory and voluntary certification of goods, works or services, as well as certain qualification requirements for market participants. For example, although the production of building structures and materials will no longer be licensed, the consumer will always be able to find out about the quality of building materials using the appropriate certificate.
There are questions about the application of the new law. After its entry into force, a government decree was issued, which specifically distributed the levels of licensing (federal, regional). However, there are still no relevant regulatory documents (Regulations) on the procedure for licensing this or that type of entrepreneurial activity (with the exception of the tourism and construction business).
The licensing system was well developed at the regional level. All that was required was to supplement it with the Federal Leasing Center, which would make it possible to resolve emerging issues more efficiently and promptly. There should be state control over business. As for the removal of administrative barriers from its path, why, for example, not introduce a simplified procedure for registering and formalizing private enterprises using the so-called "single window" method, when all Required documents(including licenses)?
Legal regulation entrepreneurial activity is based on certain principles. Under the principles in jurisprudence, it is customary to understand the guiding ideas that underlie the regulation of a certain area of social relations. A set of certain ideas underlies the regulation of entrepreneurial activity. Thus, we can talk about the existence of the principles of legal regulation of entrepreneurial activity.
Unlike a number of other branches of Russian law, business law is not codified. Accordingly, there is no single normative act that would enshrine all the principles governing entrepreneurial activity. This causes certain difficulties in identifying the principles of legal regulation of entrepreneurial activity, causes discussions among scientists about their number and name. In addition, since neither the Civil Code of the Russian Federation nor other documents contain a chapter or article with the title “Principles of legal regulation of entrepreneurial activity”, disputes arise among scientists whether to consider this or that normatively fixed provision as an appropriate principle or something else.
In this situation, it is very difficult to give an exhaustive list of the principles of legal regulation of entrepreneurial activity. Therefore, further we will dwell on the characteristics of only the basic principles. However, first let's make a reservation. The principles of legal regulation of entrepreneurial activity are only the main provisions enshrined in the Constitution of the Russian Federation, the Civil Code of the Russian Federation and other regulatory legal acts and aimed at regulating relations in the field of entrepreneurship.
All other provisions, called in the legal literature the principles of legal regulation of entrepreneurial activity, but not directly enshrined in regulations, but only identified by scientists on the basis of their analysis and interpretation, can be called doctrinal principles of business law. Since they are not normatively fixed, in fact, they are not in the sphere of law, but in the sphere of legal consciousness. Their list is open and depends on the position of individual scientists.
Basic principles of legal regulation of entrepreneurial activity:
1. The principle of freedom of entrepreneurial activity. In part 1 of Art. 8 of the Constitution of the Russian Federation guarantees freedom of economic activity, and Part 1 of Art. 34 of the Constitution of the Russian Federation states: "Everyone has the right to free use of his abilities and property for entrepreneurial and other economic activities not prohibited by law."
According to V.V. Laptev, this principle is a fundamental principle of business law, it means the right of a citizen or organization to start and conduct business in any area of the economy. V.S. Belykh draws attention to the complex nature of the principle of freedom of entrepreneurial activity, and G.S. Hajiyev believes that the freedom of entrepreneurial activity includes a number of elements:
- freedom to choose the type of activity or occupation, freedom to be either a landlord-entrepreneur or an employer (Article 37 of the Constitution of the Russian Federation);
- freedom to move, choose a place of stay and residence - freedom of the labor market (Article 27 of the Constitution of the Russian Federation);
- freedom of association for joint economic activities - the choice of the organizational and legal form of entrepreneurial activity and the formation of various business structures(Article 34 of the Constitution of the Russian Federation);
- freedom to own property, own, use and dispose of it both individually and jointly with other persons, freedom to own, use and dispose of land and other natural resources (Articles 34, 35 of the Constitution of the Russian Federation);
- freedom of contract - to conclude civil law and other transactions (part 2 of article 35, article 74, part 4 of article 75 of the Constitution of the Russian Federation). On our own behalf, we add that the principle of freedom of contract is more clearly enshrined in Art. 1 and 421 of the Civil Code of the Russian Federation;
- freedom from illegal competition (part 2 of article 34 of the Constitution of the Russian Federation). This principle is also enshrined in Art. 10 of the Civil Code of the Russian Federation, and "certain provisions regulating issues of competition and antimonopoly activities are contained in laws devoted to the regulation of exchange, banking, investment, innovation, insurance and other activities" . Particularly in terms of protection against illegal competition, the Federal Law of July 26, 2006 No. 135-FZ “On Protection of Competition” should be mentioned;
- freedom to engage in any entrepreneurial and other economic activities not prohibited by law in accordance with the principle “Everything that is not prohibited by law is permitted” (Part 1, Article 34 of the Constitution of the Russian Federation).
It should be noted that the freedom of entrepreneurial activity may be limited in the interests of society to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state. In practice, in order to achieve the above goals, the freedom of entrepreneurial activity is limited by the mechanism of licensing its individual types.
2. The principle of unity of economic space, free movement of goods, services and financial resources(part 1, article 8, article 74 of the Constitution of the Russian Federation). The essence of this principle is to prevent the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources on the territory of Russia.
Restrictions may be introduced only in accordance with federal law, if it is necessary to ensure safety, protect the life and health of people, protect nature and cultural values.
3. The principle of legal equality and inviolability of private, state, municipal and other forms of ownership(Part 2, Article 8 of the Constitution of the Russian Federation). The essence of this principle lies in the fact that in Russia all forms of ownership are equally recognized and protected.
Along with these principles in the legal literature are also referred to as the principles of business law, making a profit as the goal of entrepreneurship; legality in entrepreneurial activity; combination of private and public interests in business law; state regulation of entrepreneurial activity .
None of these principles is normatively fixed either in the Constitution of the Russian Federation or in other normative legal acts. Consequently, these provisions can be considered only doctrinal principles of legal regulation of entrepreneurial activity. At the same time, the proposed V.V. Laptev's principle of making a profit as the goal of entrepreneurial activity is rightly criticized by other scientists.
As for the principle of legality, the majority of scientists consider it to be an industry-wide, general legal principle. Legality in entrepreneurial activity is usually understood as strict observance of the legal norms regulating it. Nevertheless, this principle is not enshrined in the Constitution of the Russian Federation as an independent one in any specific article. It only follows from a number of its provisions. Its selection is a consequence of the interpretation of the Basic Law of the Russian Federation and other regulatory legal acts, a consequence of interpretative activity.
As part of the civilistic approach to commercial (business) law, which considers business law as a sub-branch of civil law, scientists identify a different set of business law principles, considering them to be private law principles that manifest themselves in a special way in the field of business. Among the principles of commercial (entrepreneurial) law, they include the principles of:
- permissible direction of private law regulation;
- equality of participants in relations regulated by civil law;
- inviolability of property;
- freedom of contract;
- inadmissibility of arbitrary interference in private affairs;
- unhindered exercise of private rights;
- restoration of violated rights;
- judicial protection of violated rights.
However, the above provisions relate primarily to civil law and are neither the principles of entrepreneurial law, nor the principles of legal regulation of entrepreneurial activity due to the erroneous perception of entrepreneurial law as a sub-branch of civil law.
- See: Laptev V.V. Entrepreneurial law: concept and subjects. M., 1997.S. 8.
- See: Belykh V.S. Legal regulation of entrepreneurial activity in Russia. S. 42.
- See: Gadzhiev G.A. Basic protection economic rights and freedoms of entrepreneurs abroad and in the Russian Federation (experience of a comparative study). M., 1995. S. 137.
- See, for example: Alekseeva D.G., Andreeva L.V., Andreev V.K. Russian business law / ed. I.V. Ershova, G.D. Otnyukov; Belykh V.S. Legal regulation of entrepreneurial activity in Russia. S. 53.
- Only in Art. 15 of the Constitution of the Russian Federation contains the norm: “The Constitution of the Russian Federation has the highest legal force, direct effect and is applied throughout the territory of the Russian Federation. Laws and other legal acts applied in the Russian Federation must not contradict the Constitution of the Russian Federation. Bodies of state power, local self-government, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation.
- More details about the various approaches to understanding business law will be discussed in the next paragraph of this chapter.
- See: Commercial (business) law: textbook: in 2 volumes / edited by V.F. Popondopulo. 4th ed., revised. and additional M., 2009. T. 1.
abstract
Legal regulation of entrepreneurial activity
Introduction
1. Legal regulation of entrepreneurial activity in the Russian Federation
1.1 The concept and signs of entrepreneurial activity
1.2 Legal regulation of entrepreneurial activity
1.3 Concept, subject, method, system and sources of civil law
2. Business contracts. Main types and features
2.1 Principles and procedure for concluding business contracts
Conclusion
Bibliography
Introduction
Entrepreneurial activity and the social relations that develop in connection with its implementation.
The function of such regulation is performed by the norms of various branches of law: constitutional, international, civil, administrative, labor, financial, environmental, land, etc. The totality of such norms related to the regulation of entrepreneurship is often combined under common name"business law" (economic law).
Especially importance, in such regulation have constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Thus, at the constitutional level, the necessary prerequisite for free enterprise is established - the universal entrepreneurial legal capacity of citizens. Moreover, while recognizing the right private property, including land and other natural resources, the Constitution of the Russian Federation establishes the most important economic guarantee for entrepreneurial activity (Articles 35, 36).
Nevertheless, the main role in the regulation of entrepreneurship belongs to the norms of civil and administrative law. Civil law determines the legal status individual entrepreneurs And legal entities in property turnover, property relations and contractual relations are regulated. The norms of administrative law establish the procedure for state registration of business entities, the procedure for licensing certain types of entrepreneurial activity, etc. At the same time, civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is public law. The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms of private law, and especially civil law.
This is not surprising, if we recall the features that characterize entrepreneurial activity, organizational and economic independence, initiative, implementation at one's own risk, focus on making a profit.
The relevance of the topic is the change in economic relations in Russia, the emergence of diverse forms of ownership, the development of entrepreneurial activity. All this influenced the formation of legislation, including the system of state regulation in the field of production, work, services, and their quality. IN given time the process of reforming the system of legislation in the field of legal regulation is being actively carried out.
The purpose of the work is to determine the main directions for the development of the fundamentals of legal regulation in the sphere of production and sale of products and related processes.
In accordance with the goal, the following tasks were solved:
The concept and signs of entrepreneurial activity are considered;
The legal regulation of entrepreneurial activity in the Russian Federation is considered;
The concept of a business contract is considered;
The main types and features of business contracts are indicated.
The principles and procedure for concluding business contracts are considered.
1. Legal regulation of entrepreneurial activity in the Russian Federation
1.1 P concept and signs of entrepreneurial activity
In the conditions of the free market of goods, works and services being formed in Russia, the sphere of entrepreneurial activity is expanding. Entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by citizens and legal entities registered as entrepreneurs in the prescribed manner.
This definition reflects six features of entrepreneurial activity:
Her independent character;
Implementation at your own risk, i.e. under the sole responsibility of entrepreneurs;
The purpose of the activity is to make a profit;
Sources of profit - use of property, sale of goods, performance of work or provision of services;
The systematic nature of making a profit;
The fact of state registration of business participants.
The absence of any of the first five signs means that the activity is not entrepreneurial. To qualify an activity as entrepreneurial, a sixth (formal) feature is also required. However, in some cases, the activity can be recognized as entrepreneurial even in the absence of formal registration of the entrepreneur. A citizen who carries out entrepreneurial activities without registering as an individual entrepreneur is not entitled to refer, in relation to transactions concluded by him at the same time, to the fact that he is not an entrepreneur.
Knowledge of all legal, i.e., based on the formula of the law, signs of entrepreneurial activity is also necessary in the presence of state registration of an entrepreneur, since it can be carried out in violation of the law. In some cases, persons who are unable to independently carry out such activities (incapacitated), bear independent property liability or do not have the goal of systematic profit making are registered as entrepreneurs. In such cases, the registration may be declared invalid by the court, and if the violations of the law committed during the creation of a legal entity are irreparable, it may be liquidated.
1.2 Legal regulation of entrepreneurial activity
It is necessary to distinguish between entrepreneurial activity and the activity of entrepreneurs. Entrepreneurs not only conclude contracts, are responsible for their violation, but also attract employees, pay taxes, customs duties, bear administrative and even criminal liability for committing illegal acts. The activity of entrepreneurs cannot be either a privilege or a burden of any one branch of law, as well as some kind of complex “business code”. It is regulated and protected by the norms of all branches of law - both private (civil, labor, etc.) and public (administrative, financial, etc.).
Diversified norms on the activities of entrepreneurs provide, for example, federal laws of June 14, 1995 No. 88-F3 "On state support for small businesses in the Russian Federation" and of December 29, 1995 No. 222-F3 "On a simplified system of taxation, accounting and reporting for small businesses”, as well as Decree of the President of the Russian Federation of April 4, 1996 No. 491 “On priority measures of state support for small businesses in the Russian Federation”. In particular, they provide:
The procedure for issuing a patent for the right to apply a simplified system of taxation, accounting and reporting of individual entrepreneurs and legal entities - small businesses;
Benefits for granting loans to them;
However, this does not mean that all branches of law equally regulate the entrepreneurial activity itself. Since the content of entrepreneurial activity primarily and mainly consists of property relations of legally equal subjects, that is, what is regulated by civil law, we can talk about civil law regulation of entrepreneurial activity on the basis of the civil code and other civil legislation. This, of course, requires the assimilation of the main provisions of civil law and taking into account, on this basis, the features of civil law regulation of business relations as a type of civil law relations.
Entrepreneurial law reflects the main aspects of civil law regulation of both entrepreneurial activity and the activities of entrepreneurs.
1.3 Concept, subject, method, system and sources of civil law
Civil law- this is a set of legal norms regulating property and related personal non-property relations based on equality, autonomy of will and property independence of their participants. Civil law as the leading branch of private law has its own subject, method, system and sources.
The subject of civil law is property and personal non-property relations. Property relations are property relations and other property relations, relations associated with exclusive rights to the results of mental labor ( intellectual property), as well as relations arising within the framework of contractual and other obligations. Associated with property relations are recognized such personal relations as, for example, relations of authorship for works of science, literature, art, inventions and other ideal results of intellectual activity.
The complex of entrepreneurial property relations is an important element of the subject of civil law. The Civil Code, other laws and other legal acts containing civil law norms not only give a legal definition of entrepreneurial activity, but also regulate the features of the sources of its civil law regulation, its subjects and their participation in obligations. An important type of business activity regulated by civil law is investment activity, i.e. investment (money, targeted bank deposits, shares, securities, technologies, licenses, etc.) and a set of practical actions for their implementation.
Civil law does not regulate, but nevertheless protects the inalienable rights and freedoms of a person and other intangible benefits not directly related to property relations, such as, for example, life and health, personal dignity, personal integrity, honor and good name, business reputation, personal and family secret. Not being purely entrepreneurial, these rights and freedoms play an important role in the life and work of entrepreneurs.
Civil law is not the only branch of law that regulates property relations. Some of these relations are regulated by other branches of private or public law. So, property relations on payment wages regulates labor law, financial law for the payment of taxes and duties, and administrative law for the payment of administrative fines. As a result, in order to delimit civil law as a regulator of entrepreneurial activity from other branches of law that also regulate individual property relations of entrepreneurs, it is necessary to take into account a set of special techniques and means, i.e., the specifics of the method of influence of civil law on the relations it regulates.
The civil law method is characterized by the legal equality of participants in regulated relations, autonomy, that is, the independence of the will of each of them, and their property independence. None of the participants in civil law relations is in a state of power and subordination, order and execution. As a result, by direct order of paragraph 3 of Art. 2 of the Civil Code, civil law, as a general rule, does not apply to property relations based on administrative or other imperious subordination of one party to the other, including tax and other financial and administrative relations.
The method of civil law is sometimes called the method of coordination, entitlement, permission, horizontal connections. The properties of the civil law method of regulating property relations are most adequate to the conditions of a free market, a competitive environment and the needs of entrepreneurs. They are based on such basic principles of civil law as the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference in private affairs, the unhindered exercise of civil rights, ensuring the restoration of violated rights and their judicial protection.
An important feature of the civil law method is the optionality of many civil law norms. Dispositive norms contain a certain general rule (general model) of the participants' behavior, allowing the possibility for them to form a different model if this follows from another law and (or) agreement of the parties themselves. For example, by virtue of paragraph 1 of Art. 223 of the Civil Code, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer, unless otherwise provided by law or the contract. In the same way, the risk of accidental loss or accidental damage to property, according to the general rule of dispositive art. 211 of the Civil Code, is borne by its owner, unless otherwise provided by law or contract.
Using these articles of the Civil Code, an entrepreneur - the seller of a thing, wanting to quickly get rid of the risk of its accidental destruction and knowing that the buyer is very interested in acquiring it, can persuade the latter to provide in the contract that the ownership will pass to him not from the moment the thing is transferred, but, say, from the moment of signing the treaty or its entry into force. The civil law method allows entrepreneurs - market participants to freely compete with each other, to achieve the optimal balance of mutual interests, to the greatest extent satisfying the needs of consumers in the necessary goods, works and services.
The system of civil law is formed by civil law norms and their blocks, including civil law institutions and superinstitutions, the external expression of which can be structural elements the most important act of civil legislation, consisting of civil law prescriptions, combined into articles and collections of articles: paragraphs, chapters, subsections, sections and parts.
The sources of civil law are the Constitution of the Russian Federation, civil legislation and other acts containing civil law norms; customs business turnover; generally accepted principles and norms international law and international treaties of the Russian Federation. The Constitution of the Russian Federation, which has the highest legal force, direct effect and applied throughout the territory of the Russian Federation, is the foundation of civil legislation. Moreover, since the courts of the Russian Federation, when considering civil cases, increasingly refer to specific articles of the Constitution, the Plenum Supreme Court On October 31, 1995, the Russian Federation adopted Resolution No. 8 “On Certain Issues of the Application by the Courts of the Constitution of the Russian Federation in the Administration of Justice”, which explains the procedure for using articles of the Constitution of the Russian Federation in judicial practice.
According to Art. 71 p. "o" of the Constitution of the Russian Federation, civil legislation is under the jurisdiction of the Russian Federation and consists of the Civil Code and other federal laws adopted in accordance with it, whose norms must comply with the Civil Code. Other sources of civil law are by-laws: decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, acts of federal bodies executive power(orders, instructions, rules, etc.). The norms of civil law contained in laws other than the Civil Code must comply with the Civil Code. In turn, similar norms of by-laws should not contradict both the Civil Code and other laws, and acts of higher executive authorities.
Along with national (internal) laws and other legal acts, the sources of civil law are generally recognized principles and norms of international law, such as, for example, freedom of trade, navigation, etc., as well as international treaties of the Russian Federation, which are integral part Russian legal system. International treaties apply directly to relations regulated by civil law, except when their application requires the issuance of an internal Russian act. If an international treaty of the Russian Federation establishes rules other than those stipulated by civil law, the rules of the international treaty shall apply.
The considered two types of sources regulate any civil legal relations. As for the third type - business customs - it is used only in the field of entrepreneurial activity. The custom of business turnover is recognized as a rule of conduct that has developed and is widely used in any area of business activity, which is not provided for by law, regardless of whether it is recorded in any document. Examples of such customs are the norms of time for loading and unloading ships, which are often used in seaports, taking into account the subtleties associated with tonnage, type of cargo and vessel, weather, etc., conditions of maritime transportation. Only those business practices that are inconsistent with the provisions of the law or the contract that are binding on entrepreneurs are not subject to application.
2. Business contracts. Main types and features
The contract is a universal legal form of organization and regulation of economic relations. It allows you to most fully determine the mutual rights, obligations and responsibilities of participants in economic legal relations. The contract is the main way to implement such principles of economic turnover as compensation and equivalence.
In general, the functions of the contract in the economic sphere (commercial contract) are as follows: the contract acts as a means of expressing the common will of the producer and consumer, which determines the correct pace of supply and demand and serves as a guarantee of product sales. The contract is the most convenient legal remedy, representing the relations that develop in the process of carrying out economic activity on the basis of the principle of mutual interest of the parties to these relations, the contract gives these relations the form of obligations, determines the procedure and methods for their implementation. The agreement provides for ways to protect the subjective rights, legitimate interests of the participants in these relations in case of non-fulfillment or improper fulfillment of obligations.
The contract in the field of economic activity by right nature is a kind of civil law contract, general concept which is enshrined in Art. 390 GK. In accordance with it, the agreement of two or more persons on the establishment, change or termination of civil rights and obligations is recognized as an agreement. Economic activity as a sphere of application of a civil law contract determines its features. One of them is the subject composition of the economic contract. The parties or one of them are commercial organizations in various organizational and legal forms, non-profit organizations engaged in entrepreneurial activities within the rights granted to them by law and constituent documents, individual entrepreneurs.
Based on the foregoing, we can conclude that the same contract can be commercial (if both parties to the contract are entrepreneurs), civil law (if both parties to the contract are not entrepreneurs), entrepreneurial, for one party - an entrepreneur, and civil law (domestic) for the other party who is not an entrepreneur. In the latter case, the rules of economic legislation apply to the entrepreneur, and the rules of civil law apply to the non-entrepreneur.
Thus, based on the subject composition, commercial contracts are contracts, both parties of which are entrepreneurs (supply contract, contracting contract, contract for the supply of goods for state needs), as well as contracts, one of the parties to which, by virtue of a direct indication of an act of legislation, can only be an entrepreneur ( a retail sale and purchase agreement, an energy supply agreement, a rental agreement, a household contract, an agreement on trust management of property, a loan agreement, etc.).
The second sign of a commercial contract is the purpose for which it is concluded. Since the purpose of economic activity is the systematic receipt of profit, the contract in this area is concluded with the same purpose. The indicated sign of commercial contracts implies the reimbursable nature of the relations mediated by them for the transfer of material and intangible benefits. Any contract in accordance with the Civil Code is supposed to be paid.
If an entrepreneur acts as a party to a donation agreement, which by its legal nature is only gratuitous, such an agreement is not entrepreneurial, since, acting within the framework of the obligation mediated by it, the entrepreneur does not seek to make a profit. Based on the listed features and taking into account the definition of a civil contract, an entrepreneurial contract can be defined as an agreement between parties that are entrepreneurs, or with their participation, on the establishment, change or termination of rights and obligations in the field of entrepreneurial activity. An entrepreneurial contract, therefore, is the same civil law contract, but with obvious features, due to the sphere of social relations, of which it acts as a regulator. It should be noted that the term "contract" has several meanings in civil law. They also designate a civil obligation relationship that arose on the basis of an agreement, a legal fact as the basis for the emergence of a legal relationship, and a document that sets out the content of an agreement concluded in writing.
The system of commercial contracts is constantly evolving. This dynamics is determined by the development of entrepreneurial relations themselves. New types of households are fixed in the legislation (a contract for the sale of an enterprise, a contract for the assignment of a claim (a factoring contract)), previously fixed contracts become independent types (a contract for the provision of paid services). To identify and use in entrepreneurial activity one or another type of business contract, its most optimal conditions, is carried out on the basis of various criteria, depending on the goals pursued, the classification of business contracts.
Based on the subject of commercial contracts, they can be divided into three groups:
Contracts aimed at the transfer of property;
Contracts aimed at the performance of work;
Contracts for the provision of services.
Within the framework of these groups, separate types of contracts are distinguished, corresponding to the names of the chapters of the Civil Code. So, within the framework of contracts aimed at the transfer of property, the following types are distinguished:
Contract of sale;
Lease contract;
Barter agreement, etc.
Within the framework of contracts aimed at the performance of work, the following types are distinguished:
Work agreement;
Contract for the implementation of research, experimental - and design and technological work.
And, finally, the group of contracts aimed at the performance of services is represented by such types as:
Contract for the provision of services;
contract of carriage;
Transport expedition agreement;
storage agreement;
contract of assignment;
Commission agreement, etc.
Types of contracts, in turn, are divided into types. For example, the types of sale and purchase agreement are:
Retail - purchase and sale;
Supply contract;
Contract for the supply of goods for - state needs,
Energy supply contract;
Sale agreement - real estate, etc.
Since commercial contracts are a kind of civil law contracts, and those, in turn, are a kind of transactions, they are subject to the classification of transactions. Thus, the division of transactions into unilateral and bilateral (multilateral), consensual and real, perpetual and urgent, etc. may equally apply to business contracts.
It should be borne in mind that in relation to contracts, the division into unilateral and bilateral (mutual) is carried out not by the number of participants (since their number cannot be less than two in the contract), but by the nature of the distribution of rights and obligations between the participants. A unilateral contract generates only rights for one side, and only obligations for the other. In mutual agreements, each of the parties acquires rights and at the same time bears obligations in relation to the other party.
Thus, based on the foregoing, it can be argued that the system of business contracts is not permanent, because this is due to the constant development of entrepreneurial relations. At the same time, a business contract is always aimed at making a profit.
2.1 Principles and procedure for concluding business contracts
The conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion of civil law contracts.
The fundamental principle of concluding a contract, enshrined in the Civil Code as a principle of civil law in general, is freedom of contract. Freedom of contract means that entrepreneurs are free to conclude a contract. This means that entrepreneurs are free to resolve issues with anyone, about something, to what extent to enter into contractual relations. Any coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by law or a voluntarily assumed obligation.
There are exceptions to this principle, due to the fact that for one of the parties the conclusion of the contract may be mandatory.
The first such exception is a public contract under Art. 396 GK. The analysis of this article allows us to identify a number of signs indicating that the contract is not free, i.e. public, namely:
One of the parties to the contractual relationship must be a commercial organization;
The sole or one of the activities carried out by this organization must be the sale of goods, the performance of works or the provision of services;
The activities of a commercial organization must be public, i.e., carried out in relation to everyone who applies to the organization ( retail, transportation by public transport, energy supply, communication services, medical, hotel services, etc.);
The subject of the contract must be the property sold by the commercial organization, the work performed or the service provided.
The price of goods, works, services, as well as other terms of the contract are established the same for all, except as otherwise provided by law. In the event of unreasonable evasion from concluding an agreement that meets all of the listed criteria, the consumer has the right to judicial order force commercial organization conclude an agreement with him, as well as demand compensation for the losses caused.
The second exception is the conclusion of the main contract provided for the preliminary requirements, which must comply with the preliminary contract established by Art. 399 GK. If the party that has entered into the preliminary contract evades the conclusion of the main contract, the other party has the right to demand compulsion to conclude the main contract, on the terms specified in the preliminary contract, and compensation for losses. Preliminary agreements must be distinguished from agreements encountered in practice (protocols of intent). The latter only reinforce the desire of the parties to enter into contractual relations in the future. Failure to comply with agreements (protocols of intent) does not entail any legal consequences.
The third exception is the conclusion of an agreement with the person who won the auction. If one of the parties evades the conclusion of such an agreement, the other party has the right to apply to the court with a demand for compulsion to conclude an agreement, as well as for compensation for losses caused by evading its conclusion.
The fourth exception is a state contract for the supply of goods for state needs, the conclusion of which is mandatory for enterprises that are monopolists in the sale or production of certain types of goods (works, services).
The second principle of the conclusion of the contract, enshrined in the Civil Code, is the principle of the legality of the contract. Since the contract as a whole is a kind of transaction, then, like any general civil transaction, it is valid if it meets the requirements of the law. The conditions for the validity of general civil transactions include: the disputability of the persons who made it; unity of will and will; observance of the form of the transaction; compliance of the content of the transaction with the requirements of the law. The business contract must also meet the above requirements. The procedure for concluding commercial contracts, the sequence of stages established by law, performed through certain actions aimed at reaching an agreement between the parties and called methods of concluding a contract, covers the provisions of Chapter 28 of the Civil Code. The following stages of concluding an agreement in the field of commercial activity can be distinguished: the general procedure for concluding an agreement; conclusion of an agreement without fail; conclusion of an agreement by assignment; conclusion of an auction agreement.
The conclusion of a contract is usually preceded by so-called non-contractual contracts. They are established in order to find out the true intentions of counterparties, their financial opportunities, determining the price of the future contract, taking into account the costs, various design and technical, estimate and other documentation, agreed and other aspects necessary for the conclusion and execution of the contract.
As a general rule, a contract is considered concluded when an agreement has been reached between the parties on all essential terms of the contract. The process of reaching agreement goes through two obligatory parties: sending an offer by one party and receiving an acceptance by the other party that sent the offer.
The values of concluding a contract in the field of economic activity are explained by the fact that in the field of activity under consideration, the stage (the direction of the offer) is sometimes preceded by advertising, and a public offer is often used. Advertising and other offers addressed to an indefinite circle of persons are considered as an offer to make offers. A public offer is a proposal containing all the essential terms of the contract, from which the will of the person making the offer is seen to conclude the contract on the conditions specified in the proposal by anyone who responds.
In accordance with Art. 408 of the Civil Code, the commission by the person who received the offer (including those who responded to the public offer) of actions or the fulfillment of the terms of the contract specified in the offer (shipment of goods, performance of work, provision of services, etc.) is recognized as acceptance, unless otherwise provided legislation or not specified in the offer. At the same time, it is sufficient that the actions are directed towards the partial fulfillment of these conditions, but necessarily within the time period set by the offeror for acceptance.
The rules established by Art. 415 of the Civil Code, are applied when concluding an agreement without fail, that is, when the conclusion of an agreement is mandatory for one of the parties by virtue of the law. The obligated party may either act as the recipient of the offer to conclude the contract, or itself send the other party an offer to conclude it. The party with which the conclusion of the contract is mandatory must, within thirty days from the date of receipt of the offer, consider and send to the other party a notice of acceptance, from the moment of reading which the other party considers the contract concluded, or of acceptance of the offer on other conditions (minutes of disagreement on the draft contract ), or notice of refusal of acceptance.
A party that has received a notice of acceptance of an offer on other terms has the right to either notify the other party of the acceptance of the contract, or to refer the disagreements arising from the conclusion of the contract to the court for consideration within thirty days from the date of receipt of such notice, or the expiration of the period for its acceptance receipt, notice of refusal of acceptance, and also in case of receiving a response to the offer within the prescribed period, the offeror may apply to the court with a demand to compel the conclusion of the contract.
In situations where the obligated party itself sends a draft contract, the other party has the right to send it a notice of acceptance within thirty days, from the moment it is received by the obligated party, the contract will be considered concluded, or a notice of acceptance of the offer on other conditions (minutes of disagreement to the draft contract). If a notice of refusal of acceptance is received, or a response to the offer is not received within the prescribed period, the contract is considered not concluded, since its conclusion is not binding on the party that received the offer. In case of receipt of the protocol of disagreements to the contract, the obligated party must, within thirty days from the date of its receipt, notify the other party of the acceptance of the agreement in its version, or of the rejection of the protocol of disagreements. If the protocol of disagreements is rejected or the notification of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to submit the disagreements that arose during the conclusion of the contract for consideration by the court, which determines the conditions over which the parties have disagreements. If the party that sent the protocol of disagreements does not go to court, the contract is considered not concluded. The above rules on deadlines apply unless other deadlines are established by law or agreed by the parties.
If the obligated party unreasonably evades the conclusion of the contract, it must compensate the other party for the losses caused.
The second features in comparison with the general procedure for concluding a commercial contract is the conclusion of an adhesion contract. The accession agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party and only by joining the proposed agreement. The party developing its forms or standard forms is a person carrying out commercial activities in areas related to mass consumption or the performance of similar services. The conclusion of an agreement by joining the offer, or to the agreement as a whole, may be conditioned by the legislative regulation of the relevant agreements, the terms of which are determined by mandatory legal norms and fixed in forms or standard forms (insurance agreement), or by relations with mass consumption (communication services, energy saving, services transport, etc.). The accession agreement may be terminated or amended at the request of the acceding party on special grounds, which boil down to the fact that this party has the right to demand termination or amendment of the agreement if the accession agreement, although not contrary to law, deprives this party of the rights usually granted under the agreement of this type, excludes or limits the liability of the other party for breach of obligations, or contains other conditions that are clearly not applicable to the acceding party, which it, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract.
These rules do not apply to entrepreneurs, i.e., the requirement to terminate or amend the contract in the presence of those listed in paragraph 2 of Art. 398 of the Civil Code of the grounds presented by the party joining the contract in connection with the implementation of its economic activities, is not subject to satisfaction if the acceding party (entrepreneur) knew, or should have known, on what conditions the contract is concluded. Thus, the accession agreement, on the one hand, increases the risk of the joining party, which is an entrepreneur, and on the other hand, it simplifies the procedure for concluding business contracts.
A special procedure is the conclusion of contracts through bidding. This method is used, in particular, when selling property in the process of privatization of state property, when fulfilling orders for the supply of goods, performance of work or provision of services for state needs, and in other cases provided for by law. Any contract may be concluded at the auction, unless otherwise follows from its essence. Through the auction, any property, both movable and immovable, as well as property rights, can be sold.
The essence of the contract under consideration is that the contract is concluded with the person who won the auction. The organizer of the auction is the owner of the property, the owner of the property right or specialized organization acting on the basis of an agreement with the owner of the property (owner of the property right) on their behalf or on their own behalf. Bidding is carried out in the form of an auction or competition. The winner of the tender is the person who offers Better conditions, and at the auction the highest bidder. Auctions and tenders can be closed and open. Any person can participate in an open auction or competition, but only persons specially invited for this purpose can participate in a closed auction. Bidders make a deposit in the amount, terms and procedure specified in the notice of the auction.
If the auction does not take place, the deposit is refundable. It is also returned to persons who participated in the auction, but did not win it. The organizer of the auction must notify all prospective participants of the auction at least thirty days before the start of the auction. The notice must contain information about the time, place and form of the auction, the subject and procedure for conducting it, including the registration of participants in the auction, the determination of the person who won the auction, as well as information about the initial price.
The person who won the auction and the organizer of the auction sign on the day of the auction or competition the protocol on the results of the auction, which has the force of the contract. If the person who won the auction evades signing the protocol, he loses the deposit made by him. If the organizer of the auction evades signing the protocol, then he is obliged to return the deposit in a double amount and compensate the owner who won the auction for the losses caused by participation in the auction, in excess of the amount of the deposit. If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than twenty days or another period specified in the notice, after the completion of the auction and the execution of the protocol. If one of the parties evades the conclusion of the contract, the other party has the right to apply to the court with a demand to compel the conclusion of the contract, as well as to compensate for losses caused by evasion from its conclusion.
Since the contract is concluded on the basis of an auction, its validity depends on the validity of the auction. If the auctions were held in violation of the rules established by law, they may be declared invalid at the claim of the interested party, which is the basis for invalidating the contract concluded with the person who won the auction. Not only bidders, but also persons who were denied participation in the auction can act as an interested person. The consequences of the invalidity of the contract are determined in accordance with the rules established by Art. 168 of the Civil Code and other articles of the Civil Code, depending on the violations committed.
Art. 417 - 419 of the Civil Code provide general rules about the auction. They cannot be contradicted by special rules that regulate in detail the procedure for concluding certain contracts on the basis of bidding. Such rules are established, for example, by the Regulations on auctions for the sale of state-owned shares of OAS approved by Order of the Ministry of State Property of June 10, 1998 No. 8 (the new version of the Regulations was approved by Resolution of the Ministry of State Property of June 27, 2000 No. 141).
As a general rule, the contract is considered concluded at the moment the person who sent the offer receives its acceptance (consensual agreement). However, if, in accordance with the legislation on the conclusion of the contract, the transfer of property is also necessary, the contract is considered concluded from the moment the relevant property is transferred (real contract).
If the contract is subject to state registration, then it is considered concluded from the moment of such registration, and if notarization and registration is necessary - from the moment of registration, unless otherwise provided by legislative acts.
In the process of concluding a contract between the parties, disagreements (pre-contractual disputes) may arise. The transfer of such disagreements for resolution by the court is possible in cases where, firstly, the conclusion of an agreement is obligatory for one of the parties and, secondly, the parties have reached an agreement on this. There are two categories of pre-contractual disputes. These are disputes about coercion to conclude an agreement and disputes over the terms of the agreement. The former are associated with the refusal or evasion of one of the parties from concluding a contract and, as a rule, take place when concluding contracts without fail. The court decision on compulsion to conclude an agreement shall indicate the conditions under which the parties must conclude an agreement. If the dispute concerns the terms of the contract, then the resolution of the dispute sets out the wording of each disputed term.
Conclusion
Recently, due to the increasing growth of entrepreneurial activity, the need for regulation of entrepreneurship and entrepreneurial activity has become more and more urgent. But this regulation should be based on the requirements and needs of the entrepreneur, and not on the "capacities" of the state. At this stage of entrepreneurship development, the state has a huge number of ways and methods of influencing entrepreneurial activity. And the interaction of power and business structures is becoming increasingly important both in the economic and political context. Entrepreneurship sees in the stability of power, in the stability of society, the main guarantee of its development. And the state acquires in their person economic support and effective assistance to the state in achieving it. social tasks. But the economic problems of both entrepreneurs and the state should be solved not by setting rash and irrational "rules of the game" by one side for the other, but by finding compromises.
Already, the state, represented by state bodies, is beginning to realize the importance of solving various problems by coordinating interests, (consultations and round tables good to that the confirmation).
The functions of the state are not limited only to regulation, the state must also support entrepreneurship (especially small business) in order to form a middle class. Assistance to business entities can be very diverse in its forms. It is carried out both at the state level and in the regions by recognizing state support as one of the most important areas of economic reform. For support, both complex programs and tax incentives, allocation of credit resources on preferential terms. Organized information and advisory services.
Now it is necessary to change the attitude of the authorities towards the entrepreneur, it is necessary to support entrepreneurship by all means, because the entrepreneur is the basis for advancing society to a more highly developed, industrial state, which is the basis of the well-being of every citizen of the country.
In this work, it was determined that the contract in the field of economic activity by right nature is a kind of civil law contract, on the basis of which it can be concluded that the conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion civil law contracts, namely: the principle of the legality of the contract, the principle of freedom of contract.
Bibliography
Regulations
1. Decree of the Government of the Russian Federation of January 26, 2006 No. 45 “On the organization of licensing certain types of activities” // SZ RF. 2006. No. 6.
the procedure for providing in 2005 federal budget funds provided for state support of small business, including peasant (farm) enterprises” // SZ RF. 2005. No. 18, as amended and supplemented by Decree of the Government of the Russian Federation of December 9, 2005 No. 755 // СЗ RF.
3. Regulations on the Federal Registration Service, approved by Decree of the President of the Russian Federation of October 13, 2004 No. 1315// SZ RF. 2004. No. 42.
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