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60JURIDICAL SCIENCES
THE CONCEPT OF INVESTMENT
Leontiev V.
PhD in Law,
Deputy head of the military training center of Russian State University of justice - head of the training unit
Moscow, Russian Federation
Abstract
This article examines the legal nature of the investment. Investment in the economy of any state is an essential component of its development. Meanwhile, investment activity in our country has not yet been fully regulated. Different regulations contain different concepts of investment. There is no single definition in the scientific literature. However, in order to create a favorable investment climate, legal science must develop a unified approach to the concept of investment.
Keywords: investment, the legal nature of the concept of investment, the legal nature of the investment, determination of investment.
Today, investment issues remain one of the most pressing issues in the economy of most countries. Russia also needs long-term investment projects to continue socio-economic transformation and implement national projects.
The first normative acts in the sphere of investments was adopted in 1991. At that time, Russian legislation was developing rapidly, and economic relations were just being formed.
It is necessary to recognize that investment legislation has not been fully formed until now, and the concept of investment has not received its final legal consolidation either in law or in science.
Thus, in accordance with Federal law № 39-FZ of 25.02.1999 «On investment activities in the Russian Federation carried out in the form of capital investments» [11], investments are understood as property and property rights that an investor contributes to an enterprise in order to obtain any profit in the future. According to Federal law № 160-FZ of 09.07.1999 «On foreign investments in the Russian Federation» [12] investment is not understood as a Capital that an investor invests in a business, but the act of providing money or other property. Thus, the same term investment is interpreted in two regulatory acts adopted in the same year in very different ways. In the first case, the investment is treated as capital, and in the second as an action to dispose of this capital.
It should be noted that the difference in the definition of capital exists not only in regulations. There is no single approach to the definition of investment in the scientific environment. According to one group of scientists, investments belong to the object of civil rights [5], according to others to the subject of investment activity [35]. In our opinion, in both cases we are talking about investments as capital and property.
However, some scientists agree that investment is not a capital, but a process [1], and investment and investment activity are synonymous [14].
In the scientific legal literature, the opinion is expressed that investments are not an object, but an object of investment [24]. There are also bolder views, for example, that investments can be any legal relationship,
since the regulatory acts of any one definition of this concept is not given [34].
It should be noted that not only for the key concept - investment, there is no single definition in the legal literature. To date, there is no common view on the definition of the innovation contract [15], investment economy [30] and other concepts.
In our opinion, the lack of a single definition of the key concept of investment activity has several reasons.
During the planned economy, investments were not seriously engaged. All commodity relations between state-owned enterprises were based on a plan and a state order. The problems of investment were of exclusively theoretical interest at that time, and at the time of the emergence of the market economy, these issues were not developed at all in theory or in practice [27].
Having replaced the planned economy, the market economy developed rapidly, regulations were written literally "on the knee". This can explain the large number of regulations that had to be reworked for a long time in accordance with the new requirements of the economy and the actively developing legal science [12].
The investment regulations we are considering were adopted more than twenty years ago, but the contradictions in them have not been corrected even now. It seems that if these laws were actively and constantly "used" in law enforcement practice, the problems they contain would have long been the subject of legal proceedings and eventually resolved by the legislator. This did not happen because the current legal relations in the field of investment are regulated in law enforcement practice most often by the Civil code of the Russian Federation [29].
A single definition of a term implies, first of all, the identification of its exact meaning.
Given that the term investment came into business from the economy, it is particularly important to determine the meaning that was invested in it when it appeared. Having established the legal nature of the concept under study, you can successfully develop its definition.
The term legal nature is one of the most widely used in the defense of legal dissertations. However, the
issue of the content of the term in the legal system has not been resolved yet. Even in the last century, scientists emphasized that despite its active use, the content of the term is practically not studied [16].
Today, interest in this issue has been reawakened with a new force. There is a point of view that the legal nature of the law is determined by its characteristics [22]. According to another view, this term corresponds to the industry sector the rule of law [25]. In scientific circles, it is also suggested that the legal nature correlates with the terms legal function and legal classification and helps to understand a certain phenomenon from a legal point of view [28].
Due to the lack of a doctrinal definition, different definitions are currently being put forward in science. Malyugin, considering the reasons for the appearance of the concept of legal nature itself and highlighting its key characteristics, gives his definition of legal nature, by which he understands a set of constant essential characteristics of a legal object that manifest themselves in the process of its cognition and allow determining the semantic meaning of a legal phenomenon, as well as establishing the belonging of a legal fact to the hypothesis of a rule of law or another object related to law, the corresponding legal category [18]. It is necessary to agree with N. P. Aslanyan and T. V. Novikov, that such a contradictory and confusing definition does not clarify the content of the category legal nature [3]. These authors, having conducted a serious study of the use of the term legal nature, rightly note that if legal science recognizes the phrase as a legal term (including due to its wide application in the legal literature), then its content should differ from similar, but at the same time do not coincide with it concepts: legal essence, legal characteristics, etc.
Continuing their research, N. P. Aslanyan and T. V. Novikova convincingly prove that the term legal nature is not identical to the term legal essence. There is no doubt about the authors conclusion that, in contrast to the essence, the legal nature should describe, first of all, the properties of a legal phenomenon acquired during its appearance, in other words, «the essence at birth», since, as the authors rightly noted on the example of a contract, the essence of a phenomenon at a given time may not always correspond to its primary essence [2]. The authors proposed meaning of the term legal nature, as well as the detailed history of its application, allow us to propose the following definition for discussion. Legal nature - a legal category that describes the main primary properties of a legal phenomenon, acquired by it, as a rule, at the time of its occurrence, as well as its generic (industry) affiliation. It should also be noted that in addition to the legal «pri-mary essence at birth», when determining the legal nature, it is necessary to establish its actual, non-legal essence, if this concept came to law from another scientific field [26].
Currently, there are many works in which the authors, using different approaches, try to determine the legal nature of investments, but scientists have not come to a consensus.
Thus, some authors, having introduced the phrase «legal nature of investments» in the title of a work or
part of it (Chapter, paragraph), no longer return to this concept in the course of narration, and the reader only has to guess what the author meant by legal nature [21, 23, 32].
N. A. Dukhno and I. Yu. Tselovalnikova consider the legal nature of investments in order to determine the investment law in the system of branches and justify its separation into an independent branch of law. Quite rightly, the authors point out that a comprehensive understanding of investment depends on the effectiveness of legal regulation of investment relations. When considering the legal nature of investments, the authors note the close connection of the latter with entrepreneurial activity and with such an economic category as capital [10].
Considering the legal nature of investment relations, R. B. Bozorov identifies such features as their connection with a certain risk and investment [6].
It should be noted that the most common subject of consideration of scientists is the legal nature of investment contracts, not investments. According to V. N. Lisitsa, the study of the legal nature is of great importance, since it helps to define such a contract, identify its qualifying features, and establish its place in the system of other contracts [20].
M. I. Braginsky notes that by its legal nature, an investment agreement is a simple partnership agreement [7], while according to A. P. Sergeev, an investment agreement by its legal nature is a Commission or Commission agreement [9]. Considering the issues of the legal nature of investment contracts, L. M. Buslayeva defines these contracts as a complex legal agreement that has elements of many civil law contracts, and also highlights their essential features [8]. Laskovy connects the legal nature of investment legislation with the civil nature of investment structures, which, according to the author, can determine their (investment structures) industry nature and content [17]. A.V. Beletskaya considers the legal nature of the investment contract and agreement also with the aim of establishing industry differences between them, pointing out that the investment contract reflects public-law relations, while the investment contract of public-private partnership has a private-law nature [4].
Thus, the vast majority of scientists consider the legal nature of an investment agreement from the position of attributing it to a particular branch of law. It should be noted that the dominant opinion points to the dual nature of investment relations, which are regulated by both dispositive rules of civil law and mandatory rules of administrative law.
As for the legal nature of investments, as mentioned above, it is impossible to study it without describing their primary properties, taking into account the economic component. In our opinion, it is necessary to consider in detail the works of Richard Catillon, Francois Quesnay, Anne Robert Jacques Turgot, and Adam Smith.
Thus, R. Catillon was the first to introduce the concept of entrepreneur, proved the need for primary capital before starting business and identified risk as one of the main conditions for classifying any activity
as entrepreneurial [23]. F. Quesnay, studying the functioning of farms, came to the conclusion that initially accumulated capital is needed to start farming, which is further divided into primary, initial and current investments [13]. Turgot, defining five types of the most possible use of pre-accumulated capital, distinguishes among them investment in the processing of agricultural land and the development of factories [33], which, in our opinion, is nothing more than investment in fixed assets. We see further development of the theory of investment in the work of A. Smith, in which he introduces the concept of fixed and working capital and gives its classification [31].
Thus, the author comes to the conclusion that the definition of investment is currently one of the most important tasks of business law. It is impossible to do this qualitatively without understanding the legal nature of investments, to identify which it is necessary to study and describe the primary properties of investments at the time of the origin of this category in the framework of economic science.
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INVESTMENT IN AGRICULTURE
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
This article discusses the issues of investment in agriculture during the period of its digitalization. The author justifies the importance of agriculture, as well as investment risks in this sector of the economy. The problems that should be solved during the transition of agriculture to the digital level are listed. In conclusion, it is concluded that due to the peculiarities of agriculture, the main financial burden will be borne by the state during the transition of the latter to the digital level.
Keywords: agriculture, agro-industrial holding, investments, investments in agriculture, digital agriculture, investment risks.
Agriculture, along with industry and transport, has always been one of the backbone sectors of the national economy of any state. First of all, this is due to the need to provide food to the population of their country. The issue of food security is particularly acute at the present time, when under various, mostly far-fetched pretexts, some countries are trying to solve their political and economic problems by imposing economic sanctions against other States. In order to prevent a possible future food embargo, the development of agriculture is one of Russia's top priorities.
Providing the highest quality and most affordable products contributes to improving the health of the population, increasing life expectancy, and as a result, improving the socio-economic situation in the country.
High-quality agriculture contributes to the development of other sectors of the national economy, which primarily include mechanical engineering, transport, chemical industry, wholesale and retail trade.
It is impossible to ignore the influence of agriculture on the uniformity of settlement of the country. In recent decades, there has been a negative practice, according to which young people leave the countryside and move permanently to large cities. The population of agricultural regions is increasingly trying to move closer to megacities, to Moscow and St. Petersburg. As a rule, this is most often due to low earnings, poor infrastructure and the lack of any hopes for improving the situation in the future. The development of agriculture, creation of decent living conditions in rural areas, high wage and confidence in the future will facilitate even distribution of the population in the country and stop unnecessary migration from agricultural regions closer to the cities.
Thus, agriculture is an economic sphere that affects almost all branches of the national economy.
However, despite the importance of this sector of the economy in almost all, including the most developed countries, the agro-industrial complex cannot exist without the full support of the state.
Thanks to state support, agriculture in Russia has adapted to the present realities and is even showing growth in certain areas. At the same time, the growth of the domestic agro-industrial complex significantly lags behind the leading agricultural countries, such as the United States, Canada, Brazil, and China.
The main reasons that hinder the development of agriculture include:
- lack of own funds of agricultural enterprises;
- high interest rates on commercial loans;
- insufficient direct state support, including the size, system of distribution and availability of subsidies;
- deterioration of automotive equipment;
- lack of investment [2].
The agro-industrial complex, as well as any branch of the economy, requires long-term and reliable investors for its further development. But attracting such investors is becoming an impossible task for the industry.
First, agriculture itself is one of the most vulnerable sectors of the economy to economic and political crises, and the volume of investment in such times decreases much more than in other areas [1].
Secondly, agriculture is one of the riskiest sectors of the national economy from the point of view of investment due to the special conduct of economic activities. This feature is primarily due to the fact that most of the economic indicators of the industry depend much more than in other industries on a variety of natural factors that a person cannot influence with all the development of science and technology [6]. Among all these
