CC BY
19«C@yL@qyiym-J®yrMaL»#8îâ©),2©2© / JURISPRUDENCE
181
УДК: 394.1. ГРНТИ: 10.23.21
Marietta D. Shapsugova Institute of State and Law, Russian Academy of Sciences Znamenka street 10, Moscow city, 119019 Ph.D. in Law, Associate Professor, Senior Researcher ResearcherID: A-6840-2015 ORCID: 0000-0002-3741-0519 DOI: 10.24411/2520-6990-2020-11571 THE LEGAL STATUS OF PERSONS ENGAGED IN TRADE AND CRAFT ACTIVITIES IN THE RUSSIAN PRE-REVOLUTIONARY LEGISLATION.NON-RESIDENT MERCHANT. CONCLUSION.
Abstract.
The article is a continuation of the study of the legal status ofpersons engaged in trade in pre-revolutionary Russia. The criteria that determine the merchant's belonging to the guild are revealed, as well as their change as the legislation in this area develops. It is proved that at the initial stage, the merchant's membership in the guild was determined by the amount of declared capital. Later, as merchants develop and depart from estates, instead of the declared capital criterion, the criterion of making trade transactions is gradually formed in the form of fishing as a permanent occupation, on its behalf. If earlier transactions acquired a trading character from the fact that they were carried out by the merchant, later the quality of the merchant is determined by the trading property of the transactions that make up his business.
Keywords: non-resident merchants, individual entrepreneurs, merchants, guilds, peasants, wholesale trade, retail trade, pre-revolutionary legislation, philistines.
Unlike modern Russian legislation, which provides a national legal regime for entrepreneurs of foreign countries, the content of the legal personality of foreign and non-resident merchants was significantly different from the content of the legal personality of domestic merchants. The status of non-resident merchants was stipulated in Chapter V of the supplementary Resolution. The legal status of a non-resident merchant of the first and second guilds depended on whether such a merchant had real estate in the city.
Non-resident merchants of the 1st and second guilds, who made wholesale trade in any city, but did not have real estate there, were not required to be registered as guests or local merchants, but paid only ordinary income to the city, on a par with local merchants, and were not subject to any elections in office (Article 56 of the additional Regulation). Non-resident merchants of the 1st and 2nd guilds who had in that city where they carried out trade, a house, a factory, a shop or other trading establishment or who made purchases and resales there and had a permanent residence and fishing there, should have been registered as guests in this city or merchants and carry all personal services and duties on a par with local merchants (Article 57 of the additional Regulation).
Non-resident merchants 3 guilds registered in cities where less is paid for a certificate, or in those that use the privilege, they pay in other cities for the trade they elect, all city duties, taking a special certificate by the nature of its trade, along with local merchants, regardless of whether they have real estate in the city or not (Article 58 of the additional Regulation).
Temporarily visiting non-resident merchants who sold their goods from ships or stock exchanges did not pay any taxes on the salary of the local merchant, but had to pay excise taxes established by local regulations (Article 59 of the additional Regulation).
Foreign guests to whom Chapter VI of the supplementary Regulation was dedicated could trade and have a place of residence only in that port or border city where they were recorded. They were obliged to pay all duties established in this city, where they were
recorded, and take the certificate of a merchant of 1 guild. Foreign guests could not have bills of exchange with merchants of the third guilds, peasants who were trading according to the last four clans, trades in the middle class or townsmen, and people of other states (Art. 62-64).
Foreign guests did not have the right to trade in retail, not only in shops or shops, or cellars but also in their apartment or distribution (Art. 65 of the additional Regulation).
A foreign guest also could not have factories, factories, mills, and no trading establishments, lease them without special permission, which was given only to recognized socially useful establishments. Such permission was granted "solely with the Highest Permission" (Article 66 of the additional Regulation).
Foreign guests were forbidden to trade in other cities, except the three leading fairs: Root, Nizhny Novgorod, and Irbitskaya.
Foreign merchants and foreigners living in Russia had a special status (Chapter VII of the additional Resolution).
A visiting foreign merchant could stay in this status for six months, counting from the day of arrival, without paying city duties and without a certificate. For this purpose, upon arrival of a visiting foreign merchant to the border, the local authorities should inscribe on the passport presented to them the time of his arrival with a designation of the place where to arrive (Article 68 of the additional Regulation). If a visiting foreign merchant remained for more than six months, then he was obliged to take a merchant's certificate from the second guilds, also paying city and zemstvo duties; after a year, he had to either enter into the rights and duties of a foreign guest, taking the certificate of a merchant of first guild, or leave the Empire, or remain as a non-trading foreigner (Article 69 of the additional Regulation). Within a year from the day of arrival, a foreign merchant was allowed only wholesale trade in the Customs Line or at the exchange of goods brought by him only to Russian merchants of the first and second guild and the purchase
182
JURISPRUDENCE / <<€®LL®MUM~J®U©MaL>>#86©)),2©2©
of Russian goods from them. The secondary discharge of goods from abroad during the first six months of his stay was forbidden to him. Any other trade, wholesale or retail, was also forbidden to him (Article 70 of the additional Regulation). In case of violation of these rules, both foreign merchants and Russian citizens "who were in an unlawful relationship with them" were liable.
Foreigners living in Russia who were not foreign guests or visiting foreign merchants were prohibited from any wholesale and retail trade or any participation in the exchange business. An exception to this rule was made by artists who were allowed to sell their works (Article 75 of the additional Regulation).
Since the townspeople and townspeople, by the uncertainty of their trades, carried out trade allowed by the merchants 3 guilds, and at the same time did not fulfill any guild duties, in order to protect the interests of the merchants and at the same time not hamper the interests of the bourgeoisie, it was decided to make the paid by them commensurate with the duties of the merchants 3 guilds. So, in Chapter VIII of the supplementary decree, the rules for the trade of philistines and townspeople were established. In Art. 78 philistines were divided into tradespeople and townspeople. The tradesman was allowed retail trade under special certificates issued for the payment of duties. The tradesman petty-bourgeois could conduct trade only within the following boundaries:
To have in the city where it is recorded, one shop in the guest yard or another public building, as well as under his or her own house, with peasant and other goods named in the enclosed list of Mural A
To have a place of the aforementioned shop in the city where they are recorded, the so-called small shop under your own or rented house, but not in the rows and not in such houses under which the shops are arranged in whole lines, and to sell partly some colonial and other goods in it listed in mural B
To maintain hotels, restaurants, coffee houses, taverns, and trading baths in the county town where it is recorded and in the county of this city; and taverns, inns, and taverns also in the provincial city or capital, if they are recorded in them.
Have fish tanks in the city where they are recorded.
Have river vessels for transporting products.
In the Caucasus, Taurida, Kherson, Yekaterino-slav and Astrakhan provinces to sell locally produced grape wines at home.
Tradespeople could not have real factories and plants, but they were allowed to have hired workers in addition to family members, but no more than eight people or boys no older than fifteen years old at the rate of two boys per adult worker. If desired, it was allowed to have up to sixteen employees. To do this, they should take another certificate of the tradesman. Having more than sixteen employees had to enroll in the appropriate guild (Article 8l of the additional Regulation).
The tradesman had the right to brew copper, maintain drinking houses, porter shops, was allowed to contracts and farms worth not more than 4 thousand rubles, but with a "subscription, that he could be admitted to the contract allowed merchant guilds." The tradesman could not conclude private transactions
worth more than four thousand rubles (Article 88 of the additional Resolution).
The tradesman could engage in all the trades granted to both the townspeople and the peasants who were trading according to the evidence of the last three clans. Upon receipt of a certificate for their trade, the tradesman received a ticket for one shop. To have more shops, they had to get a ticket for each new one, paying for it.
The cost of the house of a trading tradesman in the capital could not exceed twenty-five thousand rubles. According to the Bankruptcy Charter, petty-bourgeois were required to have trade books. However, they were exempted from the obligation to certify them and from paying stamp duties for them.
Craftsmen, who did not take a certificate for trade and fishing, paid petty-bourgeois taxes, performed all city duties and services, however, they had the right to do all the crafts and have in their own or hired house, but not in the ranks, only one open shop with their own with his products, he could not sell products not made by him himself (Article 97 of the additional Regulation).
Craftsmen could not have the so-called home institutions or small factories but could have camps and use the labor of no more than three hired workers or a proportionate number of boys. Otherwise, one should take the testimony of trading bourgeois traders. Craftsmen had the right to maintain tavernas, taverns, and inns in county-level cities, where they were recorded with 1,500 male souls. The cost of a craftsman house in the capital should not exceed fifteen thousand rubles.
Craft people were allowed to work on a par with peasants. To other contracts - only "with the taking of a subscription, but only to those that can be presented to the trading bourgeois without a note to the guild." The rules regarding trading books of the philistines also applied to the craftsmen. No one, except for merchants and tradespeople, could no longer buy shops in guest houses, rows, at trading places, and private markets, as well as in houses where shops were arranged in whole lines (Article 112 of the additional Regulation). Merchants and townspeople could not brew.
The trading peasantry, to whom Chapter IX of the supplementary Resolution was dedicated, was singled out as a trading condition. According to Art. 118 state, specific and landlord peasants were allowed to carry out trade and engage in industry, as well as merchants, as well as engage in various trade, crafts and crafts assigned to trading tradesmen and townsmen, provided that they received a certificate and paid a fee in accordance with the volume of trade or trade. Peasant certificates for trade and crafts were established in six types:
The first type certificate gave the rights of the merchant of the 1st guild, but without the personal advantages and all the rights that flowed from them, also without the right to engage in banking and insurance matters.
The certificate of the second kind gave the right to trade a merchant of secondary guilds without personal advantages.
The third kind certificate gave the right to trade the merchant of the third guilds on the same basis.
«C@yL@qUlUm-J®UrMaL»#8I6©),2©2© / JURISPRUDENCE
183
A fourth kind certificate gave the right to a tradesman.
A certificate of the fifth kind gave the peasant the right: to engage in artisans in the capitals and have a permanent workshop there; maintain tavernas, taverns, and inns in county-level cities with less than 1,500 male souls; sell small goods in the capitals in the manner specified for the townspeople.
Certificates of the 6th kind were supposed to have: all state-owned specific and landlord peasants who enrolled in the workshop in cities, except for capitals, for rural crafts, had workshops there or carried out small retail trade; all who were part of government contracts permitted by law; clerks of peasants trading under certificates of the fifth and sixth kind; artisans and newly registered in artels under the name of novices and boys; blacksmiths, carts, chariots, coopers and co-workers.
Those excise taxes from shops and other taxes that were established in favor of cities by special laws were levied on peasants above the duty for certificates.
Trading peasants, who were required to have trade books, were exempted from the obligation to witness them and from the duty for them.
Thus, factories, factories stood out as objects of rights and served as prototypes of modern property complexes - enterprises.
As G. A. Zholobova notes, on January 1, 1863, the "Regulation on Fees for the Right to Trade and Other Fisheries" was adopted, according to which the acquisition of merchant rights in full became available to all Russian citizens who had the appropriate capital. Special certificates on the right of commercial and industrial activity for peasants and bourgeois were canceled" [1]
On June 8, 1898, the Regulation on the state commercial tax was approved[2]. With the adoption of the Regulation, fishing certificates were introduced, merchant certificates lost their fiscal functions, but retained the function of certifying class privileges.
The legislation also established restrictions on the right to engage in trading activities. According to G. A. Zholobova, "according to Russian law, it was forbidden to engage in trade, both personally and through attorneys, to the following persons: clergy and church clerks, as well as Protestant preachers, religious workers (except for the sale of their products), as well as sales clerks who do not have the owner's permission to carry out their trade, stockbrokers and rejecters, Russian consuls in active service, and other officials, persons who are ranked as members of the family, one merchant testimony deprived by the court and insolvent debtors Trade Law "[3] .
Thus, in the old days, under the rule of the estate, the distinction of a merchant from other economic figures was greatly facilitated by his registration with a merchant corporation, the merchant was the one and only one who was recorded "in matricula" . Under such conditions, the merchant was not only a representative of a well-known economic activity, but also enjoyed exclusive status rights assigned exclusively to him, and all other classes were eliminated from trading activities. With the fall of the estate in Western Europe, the concept of a merchant, as a well-known condition, turned out to be completely redundant. However, it was soon recognized that those specially
dedicated to their trading activities should take on specific responsibilities in the public interest. On this basis, there was a need to identify a person engaged in trade as a business, regardless of the class idea. The French Code of 1808 recognized as merchants those who make trade transactions and create a business out of it. This definition was repeated by almost all trade laws of the 19th century, not excluding the German code of 1861. The concept of a merchant depends on the nature of his profession, and not on such an accidental circumstance as writing in the register or paying a fiscal fee. Only very recently has German law changed the way the question is posed. The Commercial Code of 1897 recognizes by merchants not only persons who make trade transactions in the form of fishing (material concept), but also some persons who, without making transactions recognized by law as commercial, are entered in the trade register as merchants (formal concept). These are owners of enterprises, which in terms of quality and volume should be kept by the procedure adopted in trade (compulsory registration), and owners of enterprises subsidiary for agriculture or forestry, if they wish to register their company (voluntary registration) [4]
Russia did not have time to free itself from estate principles. The merchant is a representative of a particular estate status - it can be a merchant without making any trade, only to use the rights of the state. [5]
A merchant is one who engages in the production of trade transactions as a craft in his own name.[6] First of all, trade transactions are necessary. As in the past, transactions acquired a commercial character from the fact that they were made by the merchant, and vice versa, now the quality of the merchant is determined by the commercial character of the transactions that make up its business. In this regard, Russian legislation is closer to pan-European than to the new German model.[7] Further, trade transactions in the form of fishing. Fisheries should be understood as activities aimed at generating income through any permanent occupation. In the industrial activity, each transaction is a unique link in the whole plan drawn up to acquire fixed income. The activity is aimed at an indefinite number of acts, in this case of a commercial nature, forming a permanent source of income. Accidental, even if frequent, trade transactions are not enough for trade. The fact that the fishing is an exclusive or even predominant occupation and what part of the property it occupies does not matter; it is only important that the production of commercial transactions is intended to serve as a source of income.[8] Finally, the conclusion of commercial transactions should be on its behalf. Trade laws usually overlook this sign, but in vain, because it is one of the most significant points in the concept of a merchant. It is necessary to distinguish the merchant from his clerks, who also trade and for whom this occupation is a source of income. Therefore it fits the concept of fishing. However, the clerks do not trade on their behalf and not at their own expense, but on behalf of their master[9]. Thus, legal reforms have always been an integral element of the development of society, aimed at modernizing legal relations in Russia[10].
References
JURISPRUDENCE / <<Ш1ШетиМ~^®УГМа[1>>#8Ш)),2©2©
184
[1] Zholobova G. A. Legal regulation of commercial and industrial relations in post-reform Russia, 1881-1913. - M., 2007.S. 42.
[2] Complete collection of laws of the Russian Empire. - The third vol. T. 18, Ch. 1. the C . 489-515. // www . nlr . ru.
[3] Zholobova G. A. Legal regulation of commercial and industrial relations in post-reform Russia, 1881-1913. - M., 2007.S. 50-51.
[4] Shershenevich G.F. Commercial law course. T. I: Introduction. Merchants / Professors of Moscow University G.F. Shershenevich. - 4th ed. - St. Petersburg: Edition of Br. Bashmakovykh, 1908.- IV, 516 p. P. 134 // [ Electronic resource ] EB Nauka Prava https://naukaprava.ru/catalog/435/438/938/156757vie w=1(accessed July 28, 2019)
[5] Shershenevich G.F. Commercial law course. T. I: Introduction. Merchants / Professors of Moscow University G.F. Shershenevich. - 4th ed. - St. Petersburg: Edition of Br. Bashmakovykh, 1908.- IV, 516 p. P. 135 // [ Electronic resource ] EB Nauka Prava https://naukaprava.ru/catalog/435/438/938/156757vie w=1(accessed July 28, 2019)
[6] Shershenevich G.F. Commercial law course. T. I: Introduction. Merchants / Professors of Moscow University G.F. Shershenevich. - 4th ed. - St. Petersburg: Edition of Br. Bashmakovykh, 1908.- IV, 516 p. P. 136 // [ Electronic resource ] EB Nauka Prava
https://naukaprava.ru/catalog/435/438/938/156757vie w=1(accessed July 28, 2019)
[7] Shershenevich G.F. Commercial law course. T. I: Introduction. Merchants / Professors of Moscow University G.F. Shershenevich. - 4th ed. - St. Petersburg: Edition of Br. Bashmakovykh, 1908.- IV, 516 p. P. 136 // [ Electronic resource ] EB Nauka Prava https://naukaprava.ru/catalog/435/438/938/156757vie w=1(accessed July 28, 2019)
[8] Shershenevich G.F. Commercial law course. T. I: Introduction. Merchants / Professors of Moscow University G.F. Shershenevich. - 4th ed. - St. Petersburg: Edition of Br. Bashmakovykh, 1908.- IV, 516 p. P. 137 // [ Electronic resource ] EB Nauka Prava https://naukaprava.ru/catalog/435/438/938/156757vie w=1(accessed July 28, 2019)
[9] Shershenevich G.F. Commercial law course. T. I: Introduction. Merchants / Professors of Moscow University G.F. Shershenevich. - 4th ed. - St. Petersburg: Edition of Br. Bashmakovykh, 1908.- IV, 516 p. P. 137 // [ Electronic resource ] EB Nauka Prava https://naukaprava.ru/catalog/435/438/938/156757vie w=1(accessed July 28, 2019)
[10] Черкесова Л.И. Изменение правового положения Министерства Юстиции Российской Федерации в период правовых реформ: дис. ...канд.юрид.наук. - М., 1999. 172с.
УДК: 394.1. ГРНТИ: 10.23.21
