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9- лишение права занимать определенные должности на срок от 2 до 5 лет;
- арест на срок от 4 до 6 месяцев.
Следует учитывать, что к ответственности за
нарушение законодательства в сфере ПДн операторов может привлекать регулятор -Роскомнадзор. Причем претензии к работе организации в этом направлении могут появиться у него после плановой проверки организации либо после получения жалобы от субъектов.
К слову о проверках. Они бывают плановыми и внеплановыми. Первые проводятся не чаще одного раза в три года (для одной организации). Причем список организаций, к которым инспекторы придут с проверкой в ближайший год можно найти на официальном сайте Роскомнадзора. Внеплановые проверки проводятся по случаю, например, в целях разобраться в ситуации после получения жалобы от субъекта.
Поводом для проведения инспекции может стать и желание регулятора развеять собственные подозрения. Дело в том, что третьей формой проверки является систематическое наблюдение за деятельностью операторов.
Обо всех проверках регулятор уведомляет организацию заранее: за три дня в случае плановой и за 24 часа в случае внеплановой. Кроме того, по типу инспекции могут быть документарными и выездными. В первом случае достаточно предоставить регулятору полный пакет запрашиваемых им документов, которые доказывают, что оператор ведет работу с ПДн строго по закону. Во втором, инспекторы могут пройти по компании с экскурсией, чтобы изучить и технический аспект защиты информации.
Судебная практика и практика проверок Роскомнадзора, однако, показывает, что большинство нарушителей ограничиваются штрафами. В редких случаях регулятор может потребовать через суд блокировки ресурса, который уличили в распространении закрытой информации.
Так, с 1 сентября 2015 года, когда в России появился реестр операторов ПДн, суды приняли 238 положительных решений по обращениям Роскомнадзора. Эта цифра не выглядит
устрашающей на фоне общего числа операторов в реестре - 401 624 по состоянию на 31.12.2017.
Но и штрафы, которые компаниям выписывают чаще, на деле выглядят не такими уж большими. К примеру, итоговая сумма выписанных регулятором штрафов за 2019 год составила 4 068 500 рублей.
Закон «О персональных данных» устанавливает меры по обеспечению безопасности при обработке персональной информации. Соответствие информационной системы предприятия этим требованиям контролируют ФСТЭК и ФСБ. На практике они зачастую проверяют только организации, которые используют государственные информационные системы.
Проверки ФСТЭК и ФСБ могут быть плановыми и внеплановыми. При этом инспекторы обоих органов обращают внимание на одни и те же вещи, но рассматривают их под разными углами. К примеру, проверяют, какие организационные меры для защиты данных приняты в организации, исходя из требований ФСТЭК и ФСБ соответственно.
Таким образом, при выборе мер по обеспечению соблюдения требований
законодательства в области персональных данных необходимо учитывать множество обстоятельств, включая размеры организации, качество внутренней документации и форм договоров, а также потенциальный уровень риска попасть в поле зрения надзорного органа.
Список использованных источников
1. Конституция Российской Федерации (принята всенародным голосованием 12 дек. 1993 г.) (с учетом поправок, внесенных законами РФ о поправках к Конституции РФ от 30.12.2008 г. № 6 ФКЗ, от 30.12.2008 г. № 7-ФКЗ, от 05.02.2014 г. № 2-ФКЗ, от 21.07.2014 г. № 11-ФКЗ) // Собрание законодательства РФ. - 2014. - № 31. - Ст. 4398.
2. Федеральный закон от 27.07.2006 г. № 152-ФЗ (ред. от 21.07.2014) «О персональных данных» (с изм. и доп., вступ. в силу с 01.09.2015) // Российская газета. - 2006. - 29 июля. - № 165; 2014. - 23 июня. - № 163.
3. «Об утверждении Перечня сведений конфиденциального характера» // Собрание законодательства РФ. - 1997. - № 10. - Ст. 1127.
Сафонов Максим Сергеевич
THE PUBLIC COMPANIES LAW AND SUBSTANTIVE IMAGES OF PERSONS OF PUBLIC LAW IN
MODERN RUSSIAN LEGISLATION
DOI: 10.31618/ESSA.2782-1994.2021.3.75.168 The article outlines the general problems arising in the system of the Russian legislation associated with the contradiction between the legal forms set forth in the Civil Code and the forms of legal entities that were actually formed in public law. As a specific example, it was impossible to inscribe those entities which had special legal status (Central Bank of the Russian Federation, the Pension Fund of Russia, Vnesheconombank of the USSR, Bank for Foreign Trade of the RSFSR) in the proposed by Civil Code classification. The emergence of the legal form of a public corporation is seen in the article as an attempt to remove the existing contradictions in legislation. Keywords: legal entity, the Civil Code, a public corporation, a legal entity of public law.
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On 3 July 2016, President of the Russian Federation Vladimir Putin signed Federal Law No. 283 "On Public Legal Companies and on Amendments to Certain Legislative Acts of the Russian Federation." 90 days later, in early October 2016, the law entered into force.
The law defines a new type of legal entities. It follows from the definition contained in article 2 of the Act that a public law organization is a unitary nonprofit organization established by the Russian Federation in accordance with the procedure established by law, with functions and powers of a public law nature and carrying out its activities in the interests of the State and society. For the emergence of a public law company, a special law or decree of the President of the Russian Federation is needed, the charter of the company is approved by the Government. In essence, the statutory procedure for the establishment of a public law company gives birth to it with already existing public corporations and public companies, which in essence remain non-profit partnerships because they operate within the framework of the ®3-7 "On Non-Profit Organizations."
One of the options for the creation of a public law company is to create it by reorganizing a state corporation, a state company, a joint-stock company, the only participant of which is the Russian Federation. At the same time, the law defines an exception to this rule: it is not possible to convert into public law companies such state corporations as Vnesheconombank, Deposit Insurance AgencThe explanatory note states that, in accordance with paragraph 1 of the schedule of measures for the transformation and liquidation of State corporations and the State company Avtodor, approved by the Chairman of the Government of the Russian Federation on 29 December 2010 No. 6793 p-13, the current State corporations and the State company Avtodor must be either transformed, reorganized or liquidated.
Now each state corporation and state company already has a separate federal law, and the elimination of many-number shortcomings of the legal regulation of the activities of these organizations requires amendments to each of these laws, as well as to various by-laws. In due time the Government of the Russian Federation came to a conclusion that it is necessary to create the unified rules of activity of the state corporations (the state companies) defining the general approaches and requirements to creation, registration, the organization of activity, reorganization and liquidation of the state corporations (the state companies).
The Law on Public Law Companies assumes that the basic rules for them are established by the law itself, but the decision to establish a company may contain additional rules. Thus, the decision to establish a public law company should include the following information: name, purpose of activities, functions and powers of a public law nature, location, permitted activities, sources of formation of property, procedure for disposal of property, allocation of funds, including those received from commercial activities, procedure
for formation of management bodies and others. The decision to establish a public law company may contain additional rights not provided for by law. The law provides only for rights such as the right to form branches and representative offices, the right to form other commercial and non-commercial organizations, and the right to be a member of associations and unions. The company itself is by default a non-profit organization, that is, profit-making cannot be its main purpose, but it also has the right to engage in commercial activities, if provided for by the decision to establish it and the charter, only to the extent that it serves the purposes for which it was created. Laws on the establishment of public legal companies and Decrees of the President of the Russian Federation may provide for the exercise by the President of the Russian Federation of separate powers in respect of them.
The law provides for several options for the formation of a public law company. First, the property can be received in the form of a property contribution from the founder of the company - the Russian Federation. Secondly, it could be succeeded by the transformation of a legal entity into a public law company. Voluntary contributions, revenues from commercial activities and other sources were also provided for as sources.
The authorities of the public law company are also very clear. The highest management body of the company is the supervisory board. The Chairman and members of the Supervisory Board are appointed by the Government of the Russian Federation or the President of the Russian Federation. Members of the Supervisory Board may be persons serving in public positions of the Russian Federation, public positions of constituent entities of the Russian Federation, municipal positions, or public civil servants or municipal employees. The main strategic decisions are made by the Supervisory Board. The General Director of the company is appointed to the post by the decision of the Government of the Russian Federation on the proposal of the Chairman of the Supervisory Board.
An important provision on the activities of the public law corporation is the mandatory availability of planning documents for its activities: the development strategy of the public law company, which defines the main directions, targets and expected results of activities for a period of not less than five years, and the annual financial plan (budget). This provision corresponds to similar requirements for state companies and state corporations to have a long-term program of activity and financial plan.
A supervisory board monitors the effectiveness of the implementation of the development strategy. The law also provides for the establishment of an internal control system in addition to auditing. The provisions of the law on internal control, internal audit and audit of reporting are very detailed, in contrast to individual laws on state-owned companies and corporations. A strict reporting system is provided for companies. Annual report publicly - legal company sent to the President of the Russian Federation, to the Federation Council, the State Duma , the RF Government , the
Accounts Chamber of the Russian Federation , Public Chamber of the Russian Federation , published in the Internet . The law does not name the legal consequences of sending the report to the authorities: it turns out that the report is sent simply for information.
In the explanatory memorandum to the bill at one time it was declared, that it " ... is aimed at addressing the use of temporarily free funds in public - Law Firm" . However, only one article is devoted to this issue, and the decision of the main issues is given to the Government of the Russian Federation. It is proposed to invest temporarily available funds of public law companies on the principles of repayment, profitability and liquidity of acquired assets (investment objects). It is proposed to determine the list of permitted assets (investment objects), the procedure and conditions for investing temporarily available funds, the procedure and mechanisms for controlling their investment, as well as the procedure for making transactions on investing temporarily available funds, the forms of reports on investing temporarily available funds and the procedure for their provision and disclosure in the order, established by the Government of Russian Federation.
In general, the law contains a number of reference norms to by-laws of the Government of the Russian Federation, without which adoption of the law becomes difficult. In principle, the law will not work, if not will be taken some laws or decrees, regulating certain aspects of the activities of public - law companies. Let us dwell in more detail on a number of fundamental points that will need to be taken into account in the preparation and adoption of those.
As we all remember, in Keeping in action in the 1995 year the Civil Code of the Russian Federation1 (Part One) has seriously changed the Russian legal field and immediately created a problem that is still unresolved. On the one hand, the Civil Code of the Russian Federation has created an open structure of organizational and legal forms that promotes participation in civil circulation of State and municipal bodies, establishing in article 124, paragraph 2, the possibility of determining the special legal status of civil entities in special laws. In addition, article 125, paragraph 3, of the Civil Code of the Russian Federation established that legal entities may act on behalf of the Russian Federation, including if it is specifically provided for in laws or decrees. The combination of these two norms allowed to consider organizational and legal forms enshrined in the Civil Code of the Russian Federation, not as dogma, but as elements of a self-developing system.
At the same time, chapter 4 of the Civil Code of the Russian Federation established a number of strict
1 Civil Code of the Russian Federation of November 30, 1994 N 51- ®3 "Meeting of the legislation of the Russian Federation", December 5 , 1994, No. 32, Art . 3301.
2 Ministries and departments still exist in the form of
legal entities without defining an organizational and
legal form.
rules, which are practically impossible to develop and change: a closed list of organizational and legal forms; Division of legal entities exclusively into commercial and non-commercial forms of legal connection between founders and legal entities, as well as between persons and their property.
As a result, it remained unclear whether the authorities, such as ministries and departments, should be established in such forms as legal persons, which were enshrined in the Civil Code of the Russian Federation (in fact, there were no others)2. Some direction for legal judgements was set by article 2, paragraph 3, of the Civil Code of the Russian Federation, which established that civil legislation did not apply to property relations based on administrative or other authority, including tax, financial and administrative matters, unless otherwise provided for by law. But for legal persons, this rule was too uncertain. This problem has always been relevant, to which, for example, L.C. Cheremichko points out: "There is an objective question about the participation of the State in civil law relations. It cannot be called new and unexplored, as disputes about this subject have been going on among legal scholars for quite a long period of time... Unfortunately, it has not yet been possible to reach a certain "common denominator" in terms of the solution of the task under consideration. The historical stages of the development of our State: the Russian Empire, the Union of Soviet Socialist Republics and the Russian Federation - by their alternate change lead to radical changes not only in social and political life and in political activity, but also in mores, in human thoughts"3. One of the researchers, Y.N. Andreev, said that the current civil regulation of the status of the Russian Federation participating in civil relations gave us every reason to also believe that the State acted as a legal entity, but taking into account its constitutional situation4. These reflections by the author demonstrate the very special status of the State as a party to the civil traffic.
Finally, the most important problem was that if the Civil Code of the Russian Federation, at the level of doctrine, allowed to dissolve the concepts of "authorities" and "legal entities of private law," it could not distinguish the category of persons who fit between them, i.e. organizations that performed a public function, but private-legal methods, at all.
The Civil Code of the Russian Federation proposed the division of legal entities into criminal and non-profit organizations. This classification was a long time ago. Thus, even in Roman law, there was a division of legal persons into unions and institutions. As I.A. Pokrovsky noted, in the form of a union "there could be various trade and industrial enterprises, as
3 Chemerichko L.C. To the question of the civil-legal status of the state. Power of the Law. 2010. № 2. Page 217.
4 Andreev Yu.N. Participation of the State in Civil Law Relations. - SPb.: Publishing House of R. Aslanov "Legal Center Press," 2005. - P. 20.
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well as all kinds of alliances with non-property goals -unions religious, scientific, artistic, sports, etc."5 But some of the discovered goals. (Denunciation of the poor, introduction of education, etc.) required separation of the service of these purposes from a particular physical entity, which was carried out by the appointment of property and the identification of those bodies to be exploited according to its purpose. In this way, the differences in the objectives of the creation of legal entities have been seen in the fact that some of the legal entities are created only to satisfy the own needs of the founders, others - to achieve certain social, altruistic objectives. And today, accordingly, commercial organizations are those that pursue profit as the main purpose of their activities. Non-profit organizations are those that do not have a profit-making purpose and do not distribute the profit obtained from their activities among their participants.
Thus, the Civil Code of the Russian Federation, dividing legal entities into commercial organizations and non-commercial entities, as well as defining them through certain characteristics as the purpose of profit acquisition and its distribution among the participants, overlooked another category of legal entities: Organizations that might not have the purpose of profiting from their activities because they acted because of the need for the State to exercise one of its public functions. But at the same time, as the realization of these functions (function) is enabled by means of civil means, in their activity profit can be formed and in this case it has to belong to the state. The insufficiency of this classification is also mentioned in his article by Y.O. Verbitskaya: "So, the two main distinctive features specified in the Russian legislation as criteria for separating non-profit organizations from commercial organizations, as it turned out, do not allow to draw a clear section between them. Profit-making, as well as profit-sharing, is a trait that can characterize both a non-profit organization and a commercial organization to a certain extent; And sometimes it is possible to distinguish a commercial organization from a non-profit organization only in an organizational and legal form. Thus, there are no criteria for explicitly classifying organizations as commercial and non-commercial.6 " We find a similar opinion from the famous specialist N.V. Kozlova:... "the current legislation does not always allow to clearly divide legal entities into commercial and non-commercial ones. Moreover, some types of non-profit organizations are increasingly created by entrepreneurs, as their designs allow merchants to carry out many economic operations almost unhindered, but at the same time minimize taxation of their activities. "7
5 Pokrovsky I.A. Main problems of civil law. M.: Statute, 1998. Page 146.
6 Verbitskaya Yu.O. On division of the organization
into commercial and non-commercial. Corporations
and institutions. Collection of Articles/Ost. edition of M.A. Rozhkov. Moscow: Statute, 2007. - 348 p. Electronic
The question of the rights of the founder of legal entity for the established legal entity and its property was other legal problem in the context of legal entities of the special status. The Civil Code of the Russian Federation proposed a three-link classification of such relations. Founders (participants) of a legal entity may, in accordance with article 48 of the Civil Code of the Russian Federation, have (1) binding rights in respect of that legal entity; 2) real rights for its property (property, economic maintaining, operational management); 3) have no property rights in relation to legal entities (public and religious organizations, charitable and other foundations, associations and unions). Legal entities of special status and in this case did not fall under the classification proposed by the Civil Code of the Russian Federation.
It is obvious that the State and a legal entity of special status were not bound by binding relations, as legal entities were not established in private law by signing a founding treaty or other private law documents, but in public law by adopting a relevant public act of State authority.
At the same time, the legal relationship between the State and a special legal entity did not fit into the provision proposed by the Civil Code of the Russian Federation for the certification of types of property rights.
Finally, this legal link did not fall into the third category - the exclusion of property rights against legal persons. Acts on the activity of special entities, on the contrary, regulated in great detail the social relations that had developed between the State and the legal person of special status, unlike the Civil Code of the Russian Federation, not only the scope of property rights, but also the list of possible transactions that they could carry out with regard to their property.
N. V. Kozlova points out the following on this issue: "However, from the point of view of modern science, this classification of legal entities is not quite correct, as it does not take into account the legal nature of the relationship between the legal entity and its founders (participants, members)."8
Article 48, paragraph 1, of the Civil Code of the Russian Federation stipulates that a legal person may have property only in the ownership, economic management or operational management. Meanwhile, legal entities of special status by that time had developed their own attitude towards property, which was not covered by the schemes of the Civil Code of the Russian Federation. The most refined formula of property relations in the legal sense has developed at the Bank of Russia, other persons with a special status to some extent repeated it, following the same logic, although in documents on their activities the texts of
resource://http://civilista.org/article.php?id=1 (access date 15.01.2014)
7 Kozlova N.V. Concept and essence of legal entity. Essay of History and Theory: Tutorial. - M.: "Statute," 2003. Page 242.
8 Kozlova N.V. Ukaz.sost S. 244.
norms looked different. In fact, it was a matter of the following legal formula: the State grants the Bank of Russia property, which is owned by the Federation, but the Bank of Russia itself is assigned the full title of owner (ownership, use, disposal) in relation to this property, i.e. the possibility to freely dispose of it without reference to the Government of the Russian Federation. Such legal agreement was highly contradictory from the point of view of the Civil Code of the Russian Federation, but was absolutely necessary in the performance of a number of State functions.
Property right. The legal model that formalized (and formalizes) the management of the property of legal entities of special status can be conditionally called "property in property." That is, on the one hand, their property was owned by the federation, and on the other hand, it was also owned by the persons themselves, i.e. the property had as if two owners, one of whom was purely minal (federation) and the other -real (person of special status). Meanwhile, the Civil Code of the Russian Federation assumes that the property cannot have two owners at the same time. It was this approach, according to E.A. Sukhanov9 and most other scientists, that was correct and consistent with Romano-German legal traditions. For example, E.A. Sukhanov said that the theory of limited property rights had successfully replaced in continental Europe the feudal idea of land ownership "split" between suzerain and vassal.
Limited real rights. E.A. Sukhanov states in one of his works: "The right of economic management and the right of operational management constitute a special type of substantive rights, known to the established legal order. These are the substantive rights of legal entities for the economic and other use of the property of the owner, most often public. They are intended to formalize the property base for independent participation in civil legal relations of legal entities -non-owners, which is impossible in ordinary, classical property turnover. " Let 's take a closer look at the models proposed by the legislation10.
Let us remember the types of property management and consider the so-called-my economic management. Ownership of property on the right of economic management the Civil Code of the Russian Federation provides only for unitary enterprises, which immediately restricts the use of this property right in relation to pre-existing legal entities of a special state. But the impossibility of applying this model of material relations is not only hidden in this. The fact is that the right of economic management fundamentally implies that the organization to which immovable property belongs on this right has no right to sell it, rent it, pledge it, contribute to the authorized capital of economic companies and associations or otherwise dispose of it without the consent of the owner. In itself, this restriction of the authority to dispose of immovable property could not have a serious impact on the operational activities of the legal entity, but it created
uncertainty as to how the unitary enterprise would dispose of other property that it had, as the Civil Code of the Russian Federation had created ambiguity in this matter, taking such regulation to the level of a special law. Thus, the right of economic management, as it developed in the legislation, practically deprived the enterprise of the opportunity to conduct effective economic activity, namely for this purpose legal entities of special status were created. For example, the Bank of Russia had to carry out numerous transactions in order to implement monetary policy at a very high rate, and the need to obtain permits to carry them out from the owner of the property could completely paralyze its activities.
Operational management. Such substantive law as the operational management of property also implies the existence of strictly defined forms of legal persons who can use it in legal connection with property - a State enterprise and an institution. This substantive right, to an even greater extent than the right of economic management, prevents the possibility of operational activities of a legal entity, requiring that almost every step of carrying out its economic activities be agreed with the owner of the property. Accordingly, neither such organizational and legal forms as the state enterprises and institution nor the legal connection of their property with the owner fit the requirements that economic practice presented to legal entities of special status.
In general, summing up the result of the review of possible forms of legal communication of the legal entity with the property, it is necessary to tell that development of legal entities of special legal status generated a special form of the real right which connected the founder and the legal entity allocated by property and it was not provided by the Civil Code of the Russian Federation. This form assumed that the property was not formally owned by a legal entity, but in fact it was fixed by law (or in fact allowed) the full rights of the owner. Therefore, since the entry into force of Part One of the Civil Code of the Russian Federation in 1995, there have been two categories of legal entities in the legal system of the Russian Federation, one of which was in accordance with the Civil Code of the Russian Federation in terms of its organizational and legal form and legal connection with property, and the other - not.
Thus, to the 1995-96 threshold, there was a contradictory situation in Russian legislation when regulating the activities of legal entities. Another category of persons with a special legal status emerged between the authorities and private legal entities, which, in this specific status, was not "recognized" by civil law on legal entities.
Despite the primacy of the Civil Code of the Russian Federation in civil relations, the legal model of legal entities of special legal status stood in competition against the legal forms offered to them and proved its viability. This was facilitated by a number of purely
9 Sukhanov E.A. Civil law: In 2 vol. T. 1./Under ed.
E.A. Sukhanov. - M., 2000. Page 41.
10 Sukhanov E.A. Civil law: In 2 vol. T. 1./Under ed. E.A. Sukhanov. - M., 1998. Page 598.
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historical activities on which there was no point in stopping, but the main one was one. It was that a legal person of special status, in the form of a very complex set of legal relations, was not subjective, but as a reflection of real social needs, which could not be satisfied by civil legislation either before 1995 or after that point.
At the same time, a relatively new term - a legal entity of public law (and its analogue - a corporation of public law) - was introduced into the administrative lexicon. Domestic legal science has used these terms before, but only as a theoretical concept in relation to Western jurisprudence, which has used this concept not only in scientific life, but also as one of the institutions of formal law: "In terms of the nature and significance of their activities not only in theory, but also in legislation, legal entities of bourgeois law are divided into: a) public and b) private. Public legal entities are recognized as the State, territorial entities, some State institutions and so-called public law corporations (for example, the legal profession). "11 Since the mid-1990s, these terms have been used as theoretically sound concepts in Russian legislative activities. Drawing public and professional attention to the phenomenon of legal entities of public law made it possible to formulate in the first approximation their main typical and logical characteristics in relation to the Civil Code of the Russian Federation.
According to the classification adopted in civil law, the type of activities carried out by those organizations did not belong either to the Committee or to non-profit organizations. This activity is public, carried out by civil means. These organizations are established on the basis of special substantive law, which is not reflected in the systematization of civil law. The formal sign of these organizations is their establishment on the basis of a public act of a public body.
The formal way to resolve existing legal failures could be to create a form of legal entity that, on the one hand, could perform public functions and, on the other, would fit the classification of the Civil Code of the Russian Federation.
That need had been driven by the needs of practice and had also been discussed by doctrine. Thus, V.E. Chirkin in 2006 noted: "Apparently, there is a need along with legal entities of private law to allocate a special group of legal entities of public law." 12 This view was the most common, though not the only one. For example, G. E. Avilov and E. A. Sukhanov noted that "The design of a legal entity is born of the needs of property (civil) turnover and represents not an intersectoral category, but a civil-legal category."13
11 Bratus S.N. Legal entities in Soviet civil law. M, 1947. Page 62 — 63.
12 Chirkin V.E. Again about the legal entity of public law. Magazine of Russian law. 2006. № 5 (113). Page 101.
13 Avilov G. E., Sukhanov E. A. Legal Entities in
Modern Russian Civil Law//Journal of Civil Law.
2006. № 1. T. 6. Page 15.
The design of a new form of commercial organization was meaningful, since public legal organizations could not develop a priori for profit. In theory, such a form could be designed within the framework of the model of a non-profit organization, but this was hampered by the main sign of such organizations, enshrined in the State Code of the Russian Federation, - non-distribution of profits among founders of a legal entity. In the meantime, as indicated above, public persons, as they had already been established in the legislation, had no purpose of earning profits, but they could have been involved in their activities and should then have belonged to the State, which seemed natural to the legislator. Therefore, when a new form of legal entity was negotiated, in order for it to perform public functions as a non-profit organization, it should have been deprived of the obligation to transfer profits, if any, to the benefit of the Federation. That problem had been solved through the creation of a new legal and organizational form, the public corporation.
E.O. Adarchenko, for example, writes in this regard: "In fact, state corporations, in our opinion, were initially legal persons of public law, the status of which has not yet been properly reflected in modern legislation."14
The concept of a state corporation as a type of legal entity, a non-commercial organization appeared in the legislation of the Russian Federation for the first time since the Federal Law of July 8, 1999 No. 140-FZ "On Addition to the Federal Law" On Non-Profit Organizations, "15 which introduced Article 7.1 into this Law. At the same moment, a federal contract would be adopted, which legalized the first state corporation -the Agency for Restructuring Credit Institutions.
In total, the following State corporations, some of which had already ceased to exist, had been incorporated into the legislative system of the Russian Federation.
1. Rosatom - Federal Law No. 317-FZ of 1 December 2007 "On the State Atomic Energy Corporation" Rosatom. "16
2. "Rostechnology" - Federal Law No. 270-FZ of 23 November 2007 "On the State Corporation" Rostechnology. "17
3. "State Corporation for the Construction of Olympic Facilities and the Development of the City of Sochi as a Mining Climate Resort (GK Olympus-Stroy)" - Federal Law No. 238-FZ of 30 October 2007 "On the State Corporation for the Construction of
14 Adarchenko E.O. State corporations as a type of legal entities of public law. Ad-Ministerial and Municipal Law, 2012, N 7. Electronic resource://http://lexandbusiness.ru/view-article.php? id=1307 date of access (22.01.14).
15 "Rossiyskaya Gazeta", N 134, 14.07.1999.
16 "Rossiyskaya Gazeta", N 272, 05.12.2007.
17 "Rossiyskaya Gazeta", N 264p, 26.11.2007.
Olympic Facilities and the Development of the City of Sochi as a Mining Climate Resort."18
4. "Fund for Assistance to the Reform of Housing and Communal Services" - Federal Law No. 185-FZ of 21 July 2007 "On the Fund for the Reform of Housing and Communal Services."19
5. "Russian Nanotechnologies Corporation" -Federal Law No. 139-FZ of 19 July 2007 "On the Russian Nanotechnologies Corporation." 20 (It is reorganized on the basis of the Federal Law of 27.07.2010 No. 211-FZ).21
6. "Bank for Development and Foreign Economic Activity (Vneshekonombank)" - Federal Law No. 82-FZ of 17 May 2007 "On the Development
Bank."22
7. Deposit Insurance Agency - Federal Law No. 177-FZ of 23 Decembre of 2003 "On Insurance of Deposits of Individuals in Banks of the Russian Federation."23
The legal concept that formed the basis of this organizational and legal form was described in detail above, and the legal model was as follows. The State Corporation is established by the Russian Federation and its purpose and objectives are determined directly by federal law and are public. It was established that profit-making was not the purpose of the activities of the State Corporation. The Russian Federation confers ownership on the corporation. Profits resulting from the activities of the corporation are directed to the performance of its tasks established by law. The State Corporation operated independently of other authorities in carrying out its legislative objectives, but it coordinated its activities with them in the areas of its competence. In order to carry out operational activities, a State corporation has the right to carry out certain civil transactions. The corporation was administered by a body composed of representatives of State authorities, thereby ensuring that the will of the State in the activities of the organization was reflected. This model, introduced in the legislation, allowed, for example, V.P. Mosolin to approve the following: "State corporations (companies), in their modern form provided for by the legislation, perform public legal functions in parallel with those of a private legal nature."24
The model created differed in some significant respects from the model of the public-legal person that had formed by 1999. The features should be discussed in more detail.
The main feature of the new organizational and legal form of a State corporation, which should be doctrinal as a form of public law, from the former to 1999, was that the legal person had been given property by the State and transferred to the legal person. That is, the ambivalence that took place in the model embodied
18 "Rossiyskaya Gazeta", N 247, 03.11.2007.
19 "Rossiyskaya Gazeta", N 162, 27.07.2007.
20 "Rossiyskaya Gazeta", N 159, 25.07.2007.
21 "Rossiyskaya Gazeta", N 168, 30.07.2010.
22 "Rossiyskaya Gazeta", N 108, 24.05.2007.
23 "Rossiyskaya Gazeta", N 261, 27.12.2003.
UB
SUM
in the property status of the Bank of Russia was finally overcome. The property state of "property in ownership" as a special type of property law was reduced to a more traditional understanding of "property in ownership." This step allowed to remove most of the questions about the organizational and legal form of public persons, which arose, among other things, in state bodies. In doctrine, however, the question of the ownership of state corporations remains debatable to date. In this regard, for example, V.V. Bondarenko points out: "The most balanced doctrine is the concept of explaining the nature of the right of ownership of state corporations on the basis of a divided (difficult structural) model of ownership. Thus, in particular, V.P. Mosolin, being a member of such a model, holds the position that in this case two types of property rights coexist in relation to the same state property - the Russian Federation and the state corporation - which are in a state of legal and genetic communication and interaction as part of a single constituent structure of property rights. During the existence of the state corporation, the right of the Russian Federation to the state property transferred to it is suspended, but restored subsequently."25
At the same time, the profits that arise in the activities of state corporations, in accordance with the legislative norms, should have been directed not to the state budget, as, for example, traditionally established for public persons, but to achieve the objectives of the activities of the corporation itself, as provided for nonprofit organizations as a whole.
Thus, in legislative terms, the evolution of perceptions of legal persons of public law has been completed. The result of this movement was a form of State corporation, which in property terms was completely independent of the State, did not owe it anything after formal acquisition of property from it. The relationship with the State, its public functions and the resulting aims and objectives of the corporation itself was carried out exclusively through the management system. On the one hand, this was a positive development, since the public authorities did not miss minor guardianship or influence the operational activities of corporations, on the other hand, the lack of control over the use of public property allowed the authorities of this organizational and legal form to speak about the inefficiency of the legal form itself. It is with these problems that today's ideas about the legal essence of persons of public law in Russian law are connected. And that is why we have much to do to resolve the contradictions in modern legislation and the emergence in the near future of new laws and bylaws regulating the activities of publicly legal companies and state corporations.
24 Mosolin V.P. State Corporation vs. Joint Stock Company. Journal of Russian Law No. 6, 2010. Page 21.
25 Bondarenko V. V. Public-legal status of state corporations. Legal field of economic policy № 12, 2012. Page 112.
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1. Avilov G. E., Sukhanov E. A. Legal entities in modern Russian-Sian civil law. Messenger of civil law. 2006. № 1.
2. Adarchenko E.O. State corporations as a type of legal person of public law. Administrative and municipal law, 2012, N 7. Page 13-16. Electronic resource://http://lexandbusiness.ru/view-article.php? id=1307 date of access (22.01.14)
3. Andreev Yu.N. Participation of the State in Civil Law From - SPb.: Publishing House R. Aslanov "Legal Center Press," 2005. 355 p.
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Сизова Алла Сергеевна
доцент кафедры конституционного и муниципального права Владимирского филиала РАНХиГС, кандидат юридических наук Соколов Егор Евгеньевич студент факультета права Владимирский филиал РАНХиГС
К ВОПРОСУ О РЕАЛИЗАЦИИ ПОПРАВОК В КОНСТИТУЦИИ РОССИЙСКОЙ ФЕДЕРАЦИИ СВЯЗАННЫХ С ИЗМЕНЕНИЯМИ В РАБОТЕ КОНСТИТУЦИОННОГО СУДА
РОССИЙСКОЙ ФЕДЕРАЦИИ
Sizova Alla S.,
Assistant Professor of Constitutional and Municipal Law Departament of Vladimir branch of the RANEPA, PhD (Law) Sokolov Egor E. law student
of Vladimir branch of the RANEPA
ON THE IMPLEMENTATION OF AMENDMENTS TO THE CONSTITUTION OF THE RUSSIAN FEDERATION RELATED TO CHANGES IN THE WORK OF THE CONSTITUTIONAL COURT OF
THE RUSSIAN FEDERATION
Аннотация. Основной закон любой страны является гарантом правильной жизни людей на определенном историческом этапе. Часто происходит так, что протекающая жизнь стремительно меняется, а значит и действующее законодательство должно претерпеть некоторые изменения для того, чтобы полностью контролировать текущую ситуацию в стране. Данные поправки в Конституцию Российской Федерации создают полностью новый этап в жизни нашей страны. Изменения в судебной системе влекут за собой огромные изменения в работе Конституционного Суда Российской Федерации, но не факт что данные изменения внесут только негативные моменты. Научная новизна данной работы заключается в том, что любое глобальное изменение всегда сопровождается огромным количеством различных мнений, в данной научной статье был проведен анализ части изменений в работе Конституционного Суда РФ и
