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12JURIDICAL SCIENCES
ISSUES OF LAW ENFORCEMENT IN THE TERRITORIES OF ADVANCED DEVELOPMENT IN
THE FIELD OF INVESTMENT
Shpinev Iu.
PhD in Law, Senior Researcher in the Sector of Business and Corporate Law, Institute of State and Law of
the Russian Academy of Sciences, Moscow, Russian Federation
Abstract
The issues of supervision over the implementation of legislative acts in the investment sphere are considered to be one of the most important areas of the Prosecutor's Office. The article notes the need for prosecutor's supervision in this area in the territories of advanced development. The author considers the situation in the context of the historical development of the prosecutor's office's activities for the supervision of investments in the territories of advanced development located in the Far Eastern Federal District.
Keywords: territories of advanced socio-economic development, prosecutor's supervision, investments, investment activity.
Creating favorable conditions for attracting investment, both in the Russian economy as a whole and in the economy of the Far Eastern Federal District, is one of the most important state tasks. An important role in solving this problem should be played by the Prosecutor's Office, which exercises prosecutor's supervision over the implementation of legislation in the field of investment relations and the observance of the rights and legitimate interests of investors. The formation of comfortable conditions for investment activities in the Far East, which, ultimately, will contribute to the solution of national tasks for the socio-economic development of this remote, but very important for the country region, largely depends on the work of the prosecutor's office.
The structure of the Prosecutor's Office of the Russian Federation includes, in addition to the General Prosecutor's Office, regional prosecutor's offices, specialized prosecutor's offices, the Main Military Prosecutor's Office, as well as scientific and educational institutions of the Prosecutor's Office.
The works of A. E. Kalinovich [8], Ya. B. Ditse-vich [4] and others are devoted to the activities of environmental prosecutor's offices, the dissertation of E. N. Dokuchaeva [5] is devoted to the prosecutor's offices for the supervision of compliance with laws in special security facilities, and the studies of S. M. Zubarev [20], E. V. Sopneva [16] and others are devoted to the prosecutor's offices for the supervision of compliance with laws in correctional institutions. The issues of the military prosecutor's office are considered in detail in three works by A. N. Savenkov [13, 14, 15]. Having studied the Federal Law of January 17, 1992 № 2202-I «On the Prosecutor's Office of the Russian Federation» [7], the bylaws issued in its development, as well as the works of the above-mentioned authors, it can be assumed that neither military prosecutor's offices nor any other specialized prosecutor's offices exercise supervision in the field of investment activities. The Prosecutor General's Office, as well as the Prosecutor's offices of the constituent entities of the Russian Federation, cities and districts, are responsible for prosecutorial supervision of this area of business activity.
The works of E. Yu.Vinokurov [19], Bessarabov [1] and other authors [12] are devoted to general issues of prosecutor's supervision.
The problems of prosecutor's supervision over the economic sphere were the subject of consideration by A. Kh. Kazarina [9], N. D. Bout [2], and others. The works of A.V. Trofimov [18], N. D. Bout and M. N. Kuznetsov [3] are devoted directly to the issues of prosecutor's supervision of investment activities. At the same time, it should be noted that the last work is mainly devoted to venture investments, and since the defense of the thesis of A.V. Trofimov in 2012, the investment legislation has changed very much.
Thus, taking into account the importance for the economy of creating a TOP for the purpose of, inter alia, increasing the investment attractiveness of the region, as well as the lack of any research on this issue, the study of issues of prosecutor's supervision in the field of investment activities in the territories of advanced development is more than relevant.
The special attention of the Prosecutor General's Office of the Russian Federation to the problems of the investment sphere in the territories with special status and preferential tax conditions was drawn after the execution of the order of the President of the Russian Federation to check the use of budget funds in special economic zones (hereinafter - SEZ) in 2016. According to the report announced at the meeting of the Federation Council on April 17, 2016, the problems of the SEZ functioning revealed by the prosecutors not only did not help entrepreneurs to solve emerging issues, but also hindered the economic development of the regions. During the execution of the order, it was found that 179 billion rubles were spent over 10 years. budget rubles for the creation and development of such territories, however, at the time of the audit, a unified strategy for the development of these entities was not developed, the infrastructure necessary for business development was not available, and the conditions necessary to attract additional investment were not proposed. Due to the above reasons, 10 of the 33 special economic zones created at that time did not work in practice, since investors refused to invest their capital in the absence of
real support from the state. As a result of the audit, it was revealed that the joint-stock company «Special Economic Zones», which was actually supposed to manage all the territories, actually withdrew from their development, and received «profit» exclusively by scrolling state money on deposits, not forgetting to pay employees considerable bonuses. Thus, the state not only suffered losses due to the theft of public funds (criminal cases were initiated on this fact), but also an important state task was thwarted. Based on the findings of the audit, the country's leadership received proposals for improving the creation and development of SEZs.
At the time of the above-mentioned check, the territories of advanced socio - economic development (hereinafter - TED) were only being created. Less than two years have passed since the adoption of Federal Law № 473-FZ of December 29, 2014 «On Territories of Advanced Socio-Economic Development in the Russian Federation»[6], but 14 of the current 23 TEDs have already been created in the Far East. Most of these territories were still only on paper, but given the sad experience of special economic zones, as well as the fact that both types of entities serve primarily for the economic development of certain territories by providing its residents with certain tax, customs and other preferences in order to create a comfortable business and investment climate, the state had to solve many problems so as not to repeat the sad experience of creating SEZs.
It should be noted that despite some similarities between the SEZ and the TOP, there are also significant differences between them.
First, these are different preferences for mandatory payments. Enterprises in the SEZ have benefits on income taxes, on land and on the property of organizations, as well as customs payments. Residents of the TED are also provided with benefits for income taxes, land and property of organizations, but instead of benefits for customs payments, they have preferences for paying social contributions to state extra-budgetary funds.
Secondly, it is a different environment for business development. A SEZ is an industrial area fenced off, with a checkpoint, a customs post, and is usually located at a certain distance from the nearest settlement. TEDs are created mainly on the territory of a locality within the boundaries established by regulatory documents.
Third, it is a different amount of investment and the number of jobs that residents are required to provide in order to receive the above-mentioned preferences.
On June 29, 2017, the third joint board of the Prosecutor General's Office of the Russian Federation and the Ministry for the Development of the Far East was held, dedicated to protecting the rights of investors in the Far Eastern Federal District. The board stressed the importance of the socio-economic development of the region through the use of various options for state support of investment projects. A number of issues were identified that require additional joint efforts to resolve. Among such problems were highlighted:
- late introduction of necessary amendments to legal acts, including those containing information on the
procedure for concluding special investment contracts and making investments at the expense of the regional budget;
- errors in administrative regulations for the provision of public services in the field of urban development;
- significant shortcomings in strategic planning;
- the request from the authorities and local self-government from entrepreneurs of documents that are not established by the current regulations;
- bureaucratic barriers in the process of land allocation;
- lack of a full-fledged state real estate cadastre;
- refusal to provide data on vacant land plots;
- non-compliance with the special rules of inspections of residents of the TED, as well as not entering information about already conducted inspections in the Unified Register of Inspections;
- illegal increase in the cost of imported equipment for the implementation of investment projects by the customs authorities.
According to the results of the board, the priority tasks facing the prosecutor's office in terms of the implementation of prosecutor's supervision in the field of investment activities were determined:
- supervision of compliance with the federal legislation of normative legal acts adopted by the authorities of the subjects and local self-government;
- organization of control over the legality of spending public funds in the process of implementing the state program for the socio-economic development of the Far East;
- ensuring the fullest possible provision of public services and the execution of contracts in the implementation of the above-mentioned program;
- compliance with the coordination between the regulatory authorities in the implementation of inspections of residents of the TED;
- implementation of measures to prevent illegal refusals on the part of officials to obtain permits and technical conditions, as well as deliberate delaying of the terms defined by the current legislation for the provision of land plots;
- ensuring systematic monitoring of the state of legality in the field of investor rights protection;
- the full exercise of the rights of investors to appeal, for which to exercise special control over the consideration of such appeals, and, if necessary, an immediate response, including through the organization of checks provided for by the criminal procedure legislation;
- preparation of a draft order on the implementation of prosecutor's supervision over compliance with legislation in the field of investment activities;
- development of methodological recommendations on the organization of prosecutor's supervision over compliance with the legislation on investment activities to increase the quality and effectiveness of inspections;
- creation of a joint interdepartmental working group of the Prosecutor General's Office of the Russian Federation and the Ministry for the Development of the Far East for the purpose of prompt consideration of
problems arising in the implementation of investment contracts, including those requiring solutions at the federal level.
On September 7, 2017, Prosecutor General Yu. Ya. Chaika spoke for the first time at the Third Eastern Economic Forum in the framework of the session «En-trepreneurship in the Far East: Risks and Protection», where he spoke in detail about the measures taken by the prosecutor's office to protect the rights of entrepreneurs in the field of investment activity.
In the development of the tasks announced at the third joint board of the Prosecutor General's Office of the Russian Federation and the Ministry for the Development of the Far East, an interdepartmental working group on the protection of investors ' rights was established on September 26 [10], and on November 13, 2017, the regulations on this group were approved. According to this provision, the main objectives of the group are:
- development of interdepartmental cooperation on the issues of compliance with the rights of investors in the Far Eastern Federal District;
- improving the quality of prosecutor's supervision;
- creating a favorable investment climate in the Far
East.
The main tasks of the group include:
- organization of interaction between various regulatory and law enforcement agencies in the field of ensuring and protecting the rights and legitimate interests of legal entities and individual entrepreneurs investing in various projects in the Far Eastern Federal District;
- cooperation on operational issues between the members of the working group, as well as the prosecutor's office and other supervisory and law enforcement agencies;
- development of proposals to protect the rights and legitimate interests of entrepreneurs investing in the development of the Far East;
- carrying out general measures to protect the rights and legitimate interests of investors in the Far Eastern Federal District on the basis of all available resources, including scientific, informational, methodological, etc.
In order to solve the tasks assigned to the group, it is assigned the functions of:
- preparation of recommendations for the cooperation of all executive authorities and local self-government, as well as regulatory and law enforcement agencies to eliminate illegal administrative barriers and illegal interference in the activities of enterprises that invest in the Far Eastern Federal District;
- monitoring of information on the state of legality in the field of investment activity in the Far East;
- work with appeals from enterprises engaged in investment activities in the Far East;
- systematization of all information about criminal cases, pre-investigation checks, detected violations, response measures and other issues received from the prosecutor's offices of the Far Eastern Federal District that relate to the group's interests;
- development of proposals for improving investigative and operational work;
- development of proposals on particularly complex criminal cases and issues that arise in the course of their investigation;
- control over the implementation of anti-corruption regulations in the implementation of investment projects, including the allocation of funds to support these projects from the federal budget, the distribution of land plots, connection to networks, as well as the implementation by officials of control and supervisory bodies;
- development of initiatives to amend the current legislation [11].
At the first meeting of the interdepartmental working group, which took place on December 14, 2017, issues related to the illegal overestimation of the customs price of goods imported by investors by customs officials and the delay in obtaining licenses for entrepreneurs investing in the field of mining on land owned by the Ministry of Defense were considered.
During the second meeting of the interdepartmental working group, held on March 5, 2018 in Vladivostok, systemic issues that hinder the planned development of the investment attractiveness of the Far East were considered, among which it should be noted:
- delaying the decision on the provision of land plots by municipalities;
- compliance with the rights and legitimate interests of investors by the tax authorities;
- violation of the rights of residents of the TOP during unscheduled inspections.
Currently, meetings of the interdepartmental working group are held several times a year, which has had a significant positive effect in protecting the rights of residents of the TOP of the Far East when they carry out investment activities, and also led to an increase in residents of the TOP by 40% and the volume of attracted capital investments to 711 billion rubles [17].
Based on the above, the following conclusions can be drawn:
- the implementation of the prosecutor's supervision of the investment sphere in the TED is carried out taking into account the shortcomings identified during the implementation of SEZ projects;
- the main direction of ensuring the rule of law in the implementation of investment projects in the Far East is to respect the rights and legitimate interests of residents of the TED;
- the main types of violations of the current legislation in the sphere of investment in the territory of the far Eastern Federal district are delayed acceptance or amendments to standard regional or municipal acts, demanding entrepreneurs unidentified law documents, various bureaucratic obstacles and failure to comply with statutory deadlines the submission of documents or the Commission of certain actions, etc.;
- a positive role in terms of law enforcement, was assigned to the creation of the interdepartmental working group for the protection of investors.
References
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НЕКОТОРЫЕ АСПЕКТЫ ПОЛНОМОЧИЙ ПРАВИТЕЛЬСТВА РЕСПУБЛИКИ АРМЕНИЯ
Костанян Г.С.
Ведущий научный сотрудник Института философии,
социологии и права НАН РА, Преподаватель юридического факультета Университета прокуратуры Российской Федерации Доктор юридических наук, Государственный советник юстиции 2-го класса
Казанчян Л.А.
Директор Института философии, социологии и права НАН РА,
Член Палаты адвокатов РА, Кандидат юридических наук, доцент Докторант Института философии, социологии и права НАН РА
