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3NEED FOR A COMPREHENSIVE AND THOROUGH INQUIRY INSTITUTE LIMITED PROPERTY RIGHTS
Abstract. The work is a comprehensive study of the legal regulation of limited real rights in civil law. Now there is a purely symbolic division between the right of economic conducting or the right of operative management, expedience in this article, excluding the right of economic management in the list of restricted real rights, as envisaged in the draft of the civil code of the Russian Federation. The article identifies trends and prospects of development of the legislation governing property rights institute.
Keywords: limited real rights, the right of economic management, the right of operative management, the owner of the property, liability for the obligations of, disposal of property, the amount of restrictions
GALINA MITSYK
grand-ust@mail. ru
PhD in Law, Assistant Professor, Moscow Humanitarian-Economic Institute (branch in Tver)
The draft amendments to the Civil Code of the RUSSIAN FEDERATION issued on public display on the site of the Supreme Arbitration Court, we see that the right of economic management institutions and the right of operative management are material changes, so in this part of the study to more fully understand them [1].
The right of economic conducting or the right of operative management are a special kind of rights in rem, that unknown law of economically developed countries. This is the real rights of legal entities to commercial and other use of the property owner. These rights in rem are necessary to make the asset base of the legal persons, non-owners to participate in civil relations. In a classic property turnover model is not possible.
The creation and long-term existence of these rights in national law is associated with the State, planned-regulated economies. This is due to the fact that the State, as the owner of the property is not in a position to directly work with all its objects, and at the same time, does not want to lose the ownership of these objects, and therefore, it became necessary to establish legal persons, enterprises, institutions, and organizations of State property on a limited REM law.
In the 60s in the USSR such a right has been called right of operational management, and was subsequently divided into a three-dimensional right content right full economic management, which was intended for the industrial enterprises, and less broad right of operational management, it was meant for the state budget and similar institutions with them. World experience shows that in the normal development of market relations always take part owners of the property, including individual entrepreneurs, economic partnerships, companies and others.
The presence in the domestic economic turnover organizations that are not owners of the property, says the transition state Russian market relations, which in turn demonstrates the transitional nature of the Russian economy. The reason for this we see in the still extant in the domestic legislation of such proprietary rights such as the right of operational management and economic management that relate to the Soviet economic system and largely unfounded exist today.
Established a list of legal forms, which are legal entities, which can be subjects of the right of economic management and the right of operational management. St. 115 Civil Code establishes that the subject of the right of operational management can be unitary enterprises classified as commercial organizations, Article 120 of the Civil Code says that this law also can run establishment relating to non-profit organizations and private enterprises . Institutions are state and municipal enterprises, individuals and legal entities that are established framework engaged in activities aimed at generating income, which means the emergence of a right to receive them with the help of this income property. A.2 st.298 Civil Code defines this right as the right of economic management. The difference between the right of economic management and the right of operative management consists in the content and scope of authority, which gives the owner of the beneficiary of the right to property transferred to them. In this regard, the right of economic management is broader than the right of operative management, as first owned enterprise - a commercial organization, or institution that carries on business in the framework established by the owner, at the time, as the right of operative management may be owned by non-profit nature of their activities agencies or state enterprises [2].
By virtue of Art. 295 of the Civil Code of the Russian Federation for the owner of the property transferred to the economic management secured such powers as the creation of the enterprise, the definition of objectives and the object of his activity, reorganization, liquidation company, appointment of a director (manager) company, overseeing the proper use of the transferred property in economic management, as well as for the preservation of property companies. Also found that the owner is entitled to a share of the profits derived from the use of the property.
The company may not, without consent of the owner in any way dispose referred to it by the right of economic management of real estate, including selling it, pledge, lease, to make it as a contribution to the charter capital of business entities and more. However, pre-acceptance has the right to dispose of other assets transferred to it by the law on economic management, unless otherwise provided by law.
By virtue of Art. 296, 297 of the Civil Code of the Russian Federation state enterprises and institutions with the help of the property transferred to them the right of possession, use and disposal of the given property within the limits prescribed by law, the objectives of its activity, the order of the owner, as well as the designation of the property. With the consent of the owner of property may dispose of state-owned enterprises (including alienation) assigned to it by the right of business property. As a general rule the state enterprises independently realize their products. Owner of the property determines the distribution of revenue state enterprise.
St. 298 Civil Code establishes the procedure for disposing of property institutions. Institutions cannot dispose of (including alienation) property assigned to them, as well as property derived from the funds allocated for the establishment of the estimate. Found that when the founding documents of the institution provide for the right of the income-generating activities, the income received in the course of such activities, as well as acquired through these revenues go into a separate property management agencies and listed on a separate sheet.
St. 299 Civil Code stipulates that the right of economic management or the right of control occurs in the enterprise or institution since the transfer of the property owned by a decision to transfer part of the property of the organization on the right of economic management and operational management. Provides that otherwise may be provided by law, other legal acts, or the owner's decision.
Legislation has been enacted that the benefits derived from the use of property located in the economic management or operational management, as well as property acquired unitary enterprise or institution received in the economic or operational management of the enterprise or institution. Legally established grounds and procedure for termination of the right of economic management and the right of operational management. Termination of these rights can occur on the grounds and in the manner established by the Civil Code, laws and other legal acts, including in the case of lawful seizure of property from the owner beneficiary of the right to address. By st.300 Civil Code in the case of transfer of ownership of state or local government entity to another owner state or municipal property it of the enterprise remains the right of economic management or the right of management to his property. The same is true in the case of transfer of ownership of the institution to another person, the agency retains the right of operational management of the property belonging to him. [2]
So much for the general provisions of the right of economic management and operational management. Now need to examine these institutions in order to acquire a correct idea of the changes that must be made, and will be incorporated into the new Civil Code. The basic premise justifying the need for a comprehensive and thorough examination of this institution is thoroughly that now extinct fundamental differences between the right of economic management and the right of operative management [3; page 14].
First difficult to see the differences between the legal regimes of responsibility beneficiary of the right of property transferred by the right of economic management and operational management. Members of the property transferred by the right of economic management bears sole financial responsibility. The owner of this property (property of the enterprise, based on the right of business) is not liable for the obligations of the company, except when the insolvency (bankruptcy) of the enterprise caused by property owner (D: 3 Article. Civil Code 56, item 7 Art. 114 Civil Code, paragraph 2 of Art. 7 of the Federal Law "On state and municipal unitary enterprises").
By virtue of paragraph 5 of Art. 115 Civil Code, clause 3 of article. 7 of the Federal Law "On state and municipal enterprises", the owner of the property transferred to government enterprise shall bear subsidiary liability for the obligations of the enterprise, in the case of failure of its property. In accordance with Art. 120 Civil Code or private budgetary institution responsible for its obligations at
its disposal cash. However, the property owner may be held jointly liable for the obligations of the institution if the funds at the disposal of the institution that is not enough to settle the obligation. As a conclusion we can say that the debts and rights of users and operational management of the debts of business user rights possible vicarious liability of the owner. As you know, institutions (private and budget) are responsible for its obligations only cash, while as businesses meet all its assets. By virtue of Article 120 of the Civil Code claim 2 owner of the property transferred to autonomous institution shall not be liable for the obligations of the institution. Autonomous institutions are responsible for all its commitments enshrined in institutions such property. The only exception is particularly valuable real estate and movable property, if the property is transferred to the owner of the establishment or purchased with funds received from the owner.
These circumstances give reason to believe that we did not have to devote as a criterion for determining the difference between the right of economic management and the right of operative management of such a sign, as the absence of vicarious liability of the owner of the property transferred to the beneficiary of the right economic management, and the availability of vicarious liability of the owner of the property transferred to the operational management. The owner is not liable for the obligations of autonomous institutions, while vicarious liability for the debts of the owner state enterprise has always been what it is abstract.
Secondly, we also we do not find fundamental differences between power of subjects of the right of economic management and the right of operational management. This user owns a right of economic management, use and dispose of property transferred to it within the established Civil Code, and in accordance with the objectives of its activities, tasks and purpose of the property owner.
Thus, we can conclude the following. The difference between the right and the right of operational management of business consists only in the fact that the first right is limited to the statutory limit, as well as business objectives, task owner, designation of the property. Also it should be noted that the special granted standing to such subjects right of economic management, as state-owned enterprises. Their special competence lies in their competences use, dispose of and possess the assets in accordance with the objectives of its activities as well, and the organization that transmits the property by right of operational management. Found that, in accordance with Clause 3 of Article 18 of the Federal Law "On state and municipal unitary enterprises" regardless of the views of the owner (agree or not) if the enterprise that operates on property given to it in economic management, makes a transaction, depriving the enterprise opportunities to carry out activities under the statute, then the transaction is recognized as negligible [3; page 16].
We can say that the formal demarcation of business law from the right of operational management is to act on the instructions of the owner uses the property organizations rightly operational management. At the same time, for the owner of the company, working with the property transferred in his economic management may establish pre-meth activity of state and municipal enterprises, and set objectives of their activities and to appoint a director. Appointment of the Director serves as an effective control mechanism by which the owner can surely achieve fulfillment of their mission. Is negligible and the deal enterprises enjoying the property transferred in his economic management, the Property without the consent of the owner [3; page 17]. Can be installed and restrictions on disposal in other assets. Such restrictions established by law and regulations. As an example, the fact that the transaction granting loans, guarantees, bank guarantees may be committed by state and municipal entities only with the consent of the owner. The charter of this organization may be provided for other sizes and types of transactions that are not possible without the consent of the owner of the property transferred to the organization's use.
In accordance with claim 1 st.297 Civil Code, to claim 1, Article 19 of the Federal Law "On state and municipal unitary enterprises", a state-owned enterprise may dispose of the property only with the consent of the owner, while, products produced by this company, it may dispose of their own.
A.2 st.298 Civil Code stipulates that revenues institutions and property acquired through these revenues in the possession of institutions, if the constituent documents of the institution authorized to carry out income-generating activities. There judicial jurisprudence, in accordance with claim 2 wherein st.298 Civil Code establishes that without the owner's consent cannot be sold property, built at the expense of the enterprise, which rum property is transferred to the economic management, such as real estate goes to economic management of the enterprise. [4]
You also can not forget about the constraints imposed by the budget legislation on the right to dispose of the proceeds of authorized institution activities, as well as those acquired through income property. Do not forget that budgetary institutions are participants of the budget process, and that,
in accordance with Art. 168 Civil Code transactions made in violation of the Budget Code of the Russian Federation are void in the event that the budget law does not provide the possibility of challenging such a transaction, or any other consequences of the breach. [5]
Root of the problem lies in the fact that the law is not settled the nature and content of the right of self-disposal of property institutions, in connection with which there are sharp scientific debate on this issue.
To form a constructive representation on this issue you need to consider the scientific point of view of different authors dealing with this subject. According to E.A. Sukhanov this right is the right of economic management. He refers to the consolidation in paragraph 2 of Art. 48 Principles of Civil Legislation of the USSR and the republics of 1991. a situation that for institutions engaged in entrepreneurial activities (with the owner's consent) establishes the right of self-disposal income from such activities, as well as acquired by the said income property and accessory specified income and property law on the establishment of full economic activity. [6]
Have a different view on this issue. According to some authors it is an independent kind of limited property rights, it does not refer to the right of economic management or operational control to the right [7].
Thus, according to L.V. Shchennikova we can establish the following: "The right to an independent institution disposal income should not be customized or under the right of economic management, or under the ownership, since each of them highly specific. Opportunity for self-disposal income institution has really set specific traits that allow it to allocate an independent kind of property rights ". [8]
Also of the view that the right institutions to dispose of property acquired in the course of commercial activity permitted is a separate kind of limited property rights, we can meet in the V.V. Chubarova [9].
There is another opinion. A.S. Feofilaktov argues that franchisees with the disposal of the business establishment and the right to dispose of the assets acquired at the expense of the proceeds, is an extended variation of the right of operative management [10].
There is another view, according to which the right of independent agencies with the disposal of the business is the ownership. A.B. Babaev writes on this subject as follows: "In our view, the right of establishment on business income and property acquired by such income, ownership is just as well as the right unitary enterprise of movable property and the right state enterprise for its products. It should be interpreted as the wording of the Civil Code on self-disposal: institution has the right to possess, use and dispose of property in its sole discretion, that is the owner of income derived from business and property acquired through these revenues "[11]. A similar view, according to which the right of establishment on income and property acquired institutions on income from non-proscribed business need to be regarded as ownership expressed a prominent expert in the field of limited real rights V.P. Kamyshanskii. At the same time, he points to the following shortcomings in the legislation: "If such a legal mediating relations over property acquired institution on income from business activities, the institution does not meet its obligations to them" [12].
According to paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 22.06.2006 № 21 "On some issues of practice dealing with arbitration courts disputes involving state and local government agencies relating to the application of Article120, 296, 298 establishes that the institution cannot have income from business activities permitted on the property right, and at the same time, it does not regulate the content of the right of self-management of the property obtained by the proceeds received from a non-proscribed income-generating activities.
Only with the consent of the owner autonomous institutions may dispose of real and very valuable movable property referred to it by the owner or purchased with funds received from the owner. Another property that is in the use of an autonomous institution, it may dispose of their own, unless otherwise provided by law. This can be regarded as a factor to converge between operational management and economic management.
It can be concluded that the presence of independent institutions disposing of property rights, in cases specified by law, entails "fuzziness" of the right. As pointed out by V.A. Baturin, as a general rule no right to dispose of property data from institutions is the cause of many problems in practice [3; page 21]. You can bring a vivid example. To organize on the premises required for the implementation of activities under the Constitution points of trade and consumer services, the agency should abandon the areas occupied by these points in favor of the owner, due to the fact that these
areas are not necessary, they are not used, or misused. This provision is devoid of any meaning. In the above decision of the Plenum, in paragraph 9 states that in cases where the property is rented by the user in order to improve the efficiency of the main organizations, statutory activities, a more rational use of such property, then such actions may be committed with the consent of the owner . At the same time, the transfer of property to rent using the defined constraints does not entail the qualification of the property as excess, unused or used for other purposes.
Hence clearly implies the need to respect a certain balance in the legislative determination of the contents of limited real rights. Necessary that the users of the property transferred to the operational management was given an opportunity to order certain objects with the consent of the owner.
Third, it does not appear the differences between objects of the right of operational management and economic management right.
In accordance with paragraph 1 of Art. 132 Civil Code is now the property complex, designed for business activities. Right of operative management may be assigned not only an institution financed by the owner, but also state-owned enterprise. We conclude that the object of the right of economic management and operational management rights may be the property intended for business purposes.
It follows that the two securing rights law aimed at user management property owner, the legislator could not ensure the unity of the content of these types of limited real rights on all their subjects [3; page 22]. , However, as with any of the objects. Content of the right of operational management and the right of business depends on the subject and category of property being in use, source of funds, due to which the property is acquired. From this we can conclude that the right of operative management and the right of economic management are very conditional, that was the cause of opportunities for further classification of these rights into species and subspecies.
For example, you can deduktirovat right of operative management, depending on the subject, whose use of the property transferred. For example, as a general rule, institutions cannot dispose of their property, although autonomous institutions and state-owned enterprises can. Also, the deduction right of operational management occurs depending on what kind of property is transferred for use. In most cases there is no right to dispose of, if the use of transferred property from the owner, or acquired with funds allocated by the owner. At the same time, the institution has the right to dispose of the income derived from the allowed income-generating activities, as well as property acquired by these revenues.
All these factors suggest that the domestic legislation of limited property rights exists purely conventional delimitation of business law and the right of operational management. Clear differences between these rights are not observed.
It has been repeatedly suggested that the rights of business you want to cancel, and leave only the right of operational management. We fully support this view, since it is impossible to discern a reasonable basis for the existence of the right of economic management as a separate species of limited property rights. His need to cancel and leave only the right of operational management.
At the same time, we believe that the concept of the right of operative management must be clarified. The right of operational control - this is a limited real right unitary enterprises and institutions to own, use and dispose of property within the limits established by law, in accordance with the objectives of its activities, assignments and assignment of the property owner of the property [3, page 23; 14, page 63].
A.1 Article 49, paragraph 3 of article 50, paragraph 1 of article. 120, p.2 st.298 Civil Code, Art. 3 of the Federal Law "On state and municipal unitary enterprises" found that for unitary enterprises and institutions attached special standing. Therefore the activities of enterprises and institutions referred to them by order of the property should be determined by their statutory activities and target designation of the property [3; page 24].
According to Art. 168 of the Civil Code of the transaction committed in violation of special legal framework of the unitary enterprise or institution established by law or other legal act is recognized void. As a conclusion we can say that entitlement disposition of property companies and institutions is limited to special legal capacity of the enterprise or institution.
Particular attention should be paid to the fact that in determining the right of operational management is necessary to fix a reference to its implementation in accordance with the objectives of the institution or enterprise, mission and purpose of the property owner, as otherwise there is a risk the implementation of this activity, the use of property not on purpose.
Volume restrictions on the right of operative management depends on the type of object that is passed in by the right use of operational management. The object of the right of operational management can movable or immovable property, except land or subsoil. In case of the right of operational management of real property such right arises at the moment of state registration.
There is jurisprudence, according to which, without the owner's consent (which also means no attraction owner vicarious liability) on the property of a unitary enterprise, which enjoys this property by right of economic management, may be levied for its debts. [15]. V.A. Buchanan argues that it is necessary to save the owner vicariously liable for the debts of the user right of operational management [3; page 25].
If you specify in the contract, conferring the right enterprise operational management of the period for which the company is endowed with this right, such agreement shall be considered null and void in terms of specifying the period, since it contradicts the very nature of the limited property rights.
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