status of public corporations. Legal persons. Status of corporations, municipalities, fiscal, charitable institutions. Criteria for comparison

20.11.2021

Legal status of state corporations in the Russian Federation

Bolotin S.S.

Tyumen State University

scientific adviser: Tordia I.V.

G A state corporation is a non-profit organization without membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions. The specification of the goals of creation and the functions of activity is carried out by federal law, in accordance with which a specific legal entity is created in the legal form of a state corporation.

Based on the provisions of the law, state corporations have the following features:

1. lack of constituent documents (instead of them, Federal Laws are adopted)

2. special ways of forming property (property contribution, income from activities, subsidies from the federal budget, funds from the reserve funds of the corporation, voluntary property contributions) and the fact that state property becomes the property of the corporation

3. reorganization and liquidation is carried out in accordance with the Federal Law by which the corporation was created

4. no obligation to submit to state bodies documents containing a report on their activities.

At the moment, there are 6 state corporations in the Russian Federation:

1. Bank for Development and Foreign Economic Affairs (Vnesheconombank);

2. Deposit Insurance Agency;

3. Fund for Assistance to the Reform of Housing and Communal Services;

4. State Corporation for the Promotion of the Development, Production and Export of High-Tech Industrial Products (Rostechnologii);

5. State Atomic Energy Corporation (Rosatom);

6. State corporation for the construction of Olympic facilities and the development of the city of Sochi as a mountain climatic resort (Olympstroy).

I would like to dwell on certain problems related to the activities of state corporations.

First, as an exception to the general rules, state corporations are entitled to carry out activities that require licensing, without a license - on the basis of the law. For example, Vnesheconombank, on the basis of the Federal Laws "On the Bank for Development" and "On the Securities Market", has the right to carry out banking operations, and also has special legal capacity in the field of professional activity in the securities market.

Secondly, Of particular interest is the legal nature of the property right of state corporations to the property transferred to it by the founder. On the one hand, the law determines that property transferred by the state is the property of state corporations, on the other hand, during the existence of a state corporation, the right of the Russian Federation to state property transferred to it is suspended. It is restored to the property transferred to the corporation and acquired by the state on the property newly created and acquired by the state corporation during its operation. It should also be mentioned that when an organization is liquidated, the property is transferred back to the ownership of the state, and I think it is no secret to anyone that the property received after the liquidation will be much less than transferred ...

When characterizing individual state corporations, some features of their activities can be distinguished:

1. The deposit insurance agency actually carries out the activities of an insurance company that is commercial.

2. Vnesheconombank carries out not only banking, but also insurance activities. No one exercises control over the activities of VEB; in addition, the Bank is endowed with exclusive powers to issue bonds and other securities in accordance with the legislation of the Russian Federation. At the same time, this right is granted only to commercial organizations, and even then not to all. In addition to all this, VEB has such powers that allow it to create competition in the economic turnover. At the end of 2010, VEB received 29 billion rubles. arrived. VEB is one of the three largest Russian banks! But it was originally planned that state corporations would be a link between public authorities and business entities, which in no way implied compiling competition by the latter!

3. Olimpstroy in the manner established by Part 1 of Art. 12 of the aforementioned Federal Law No. 238-FZ, finances at its own expense measures to seize real estate objects into federal ownership in accordance with the legislation of the Russian Federation for the construction of Olympic facilities (which is contrary to the rules of the Civil Code of the Russian Federation and other legislative acts on the seizure of land for state needs).

4. Rosatom is generally endowed with the powers of state bodies - it has the right to adopt regulatory legal acts in the established field of activity, and can also recognize acts of the authorities of the Russian Federation and the former USSR as not valid on the territory of the Russian Federation. In addition, this legal entity is allowed to have its own paramilitary security units. In essence, this state corporation acts as a public authority, and not as a private legal entity.

5. And the only state corporation, the existence of which does not contradict the legislation of the Russian Federation, is the Housing and Public Utilities Reform Assistance Fund.

Therefore, based on the previously mentioned, we can conclude that state corporations, as they are now, significantly contradict the law. The following can be cited as proof of this:

1. a clear difference between state corporations and other types of non-profit organizations, which, as a general rule, should have a single organizational and legal form;

2. control of state corporations by the state in the sphere of functioning exclusively for state purposes;

3. lack of control in the management and spending of funds allocated by the state.

Thus, if there is a contradiction, then it must be eliminated, but if it cannot be eliminated, then the corporation must be eliminated.

It should also be noted that state corporations, in our opinion, are one of the types of public legal entities, along with the state itself and its bodies, as well as the Bank of Russia, the Accounts Chamber and other necessary structures, the regulation of which cannot be filled only with provisions on legal entities, contained in the Civil Code of the Russian Federation. The public essence of state corporations is to achieve the public interests set by the state, as well as to perform the functions and powers of public authorities.

The fact of equating the status of an employee of a state corporation with the status of a state civil servant also indicates precisely the public status of this institution.

Therefore, in order to avoid contradicting the law, in this case it is necessary to recognize state corporations as legal entities of public law.

List of used literature:

1. Adarchenko E.O. State corporations as a type of legal entities of public law;

2. Federal Law No. 317-FZ of December 1, 2007 "On the State Atomic Energy Corporation "Rosatom" // SZ RF. -2007. - No. 49. - Art. 6078;

3. Federal Law No. 270-FZ of November 23, 2007 "On the State Corporation "Russian Technologies" // SZ RF. -2007. - No. 48 (2 hours). - Art. 5814;

4. Federal Law No. 82-FZ of May 17, 2007 “On the Development Bank”//SZ RF. - 2007. - No. 22. - Art. 2562;

5. Federal Law of July 21, 2007 N 185-FZ "On the Fund for Assistance to the Reform of Housing and Communal Services" // SZ RF. -2007. - No. 30. - Art. 3799;

6. Federal Law No. 177-FZ of December 23, 2003 “On insurance of deposits of individuals in banks of the Russian Federation”//SZ RF. -2003. - No. 52 (Part I). - Art. 5029;

7. Federal Law of October 30, 2007 No. 238-FZ "On the State Corporation for the Construction of Olympic Facilities and the Development of the City of Sochi as a Mountain Climate Resort" // SZ RF. - 2007. - No. 45. - Art. 5415.

Fedotov P.V. State corporations in Russia: issues of property management. Journal "Lawyer", 2011, No. 13;

State Corporation a non-profit organization without membership is recognized, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions. The form of a state corporation appeared in Russia in 1999, when the Agency for the Restructuring of Credit Organizations (ARCO) was created to help troubled banks. The return to this form occurred due to the fact that there are areas in which it is unprofitable for private business to invest, or profit is possible, but only in the long term. And also because there was no other organizational and legal form of legal entities suitable for effective activities in the performance of functions carried out by state corporations: open joint-stock companies are commercial organizations and, therefore, pursue the goal of making a profit, and state unitary enterprises are characterized by insufficient efficiency and flexibility in decision-making, which does not contribute to efficient operation.

State corporations are created on the basis of federal law. Currently, the leading state corporations in Russia are the Fund for Assistance to the Reform of Housing and Communal Services, the Russian Corporation of Nanotechnologies, the Bank for Development and Foreign Economic Affairs (Vnesheconombank), the State Atomic Energy Corporation Rosatom, the State Corporation for the Construction of Olympic Venues and the Development of the City of Sochi as a Mountain Climate resort (Olympstroy), State Corporation "Russian Technologies", Deposit Insurance Agency.

organizational unity. According to its legal status, a state corporation is closest to a state institution. But it has no founding documents. Each state corporation is created on the basis of a special federal law that establishes the specifics of its legal status. The law must determine its name, purpose of activity, location, management procedure, including the bodies of a state corporation and the procedure for their formation, the procedure for appointing and dismissing officials of a corporation, the procedure for reorganizing and liquidating a corporation, and the procedure for using the property of a state corporation in the event of its liquidation.

Property isolation. The property transferred to the state corporation by the Russian Federation shall be the property of the state corporation. In cases established by law (Article 18 of the Federal Law on the Development Bank), at the expense of part of the property of a state corporation, authorized capital can be formed, which determines the minimum amount of property of a state corporation that guarantees the interests of its creditors.

The state corporation uses property for the purposes determined by the law providing creation of the state corporation. A state corporation may carry out entrepreneurial activity only insofar as it serves the achievement of the goals for which it was created and corresponds to these goals.

A public corporation is required to publish annually reports on the use of its property in accordance with the law providing for the creation of a public corporation.

Independent property liability. A state corporation shall not be liable for the obligations of the Russian Federation, and the Russian Federation shall not be liable for the obligations of a state corporation, unless otherwise provided by the law providing for the establishment of a state corporation.

State companies introduced into the Russian system of legal entities relatively recently, in July 2009.

A state company is a non-profit organization that does not have membership and was created by the Russian Federation on the basis of property contributions to provide public services and perform other functions using state property on the basis of trust management. A state company is created on the basis of federal law (Article 7.2 of the Federal Law on non-profit organizations).

Like state corporations, state companies are created on the basis of a property contribution from the Russian Federation, and are established on the basis of federal law. They can be declared insolvent (bankrupt) only if such a possibility is provided for by the federal law on their establishment.

Property transferred to a state company by the Russian Federation as property contributions, as well as property created or acquired by a state company as a result of the state company’s own activities, with the exception of property created at the expense of income received from the implementation of trust management activities, is the property of a state company, unless otherwise provided by federal law.

The main difference between a state company and a state corporation is that a state company is focused on providing public services. At present, the State Company "Russian Highways" has been established.

State corporations are special public non-profit organizations endowed with significant property rights. The public status of state corporations is due to their special relationship with executive authorities and other public bodies.

The most important legal prerequisite for the creation of a state corporation is the implementation of its socially significant activities in the areas of social policy, the provision of public services (for example, medical, educational services), financial and banking activities that meet the needs of the state. The content of priority national activities, for the purpose of which a state corporation is created, is determined by federal law.

The special status of a corporation is predetermined by its legal status; of all forms of non-profit organizations, only state corporations and autonomous institutions are established by the state - the Russian Federation. Consider the most important components of the public status of corporations. As already mentioned, in the field of legal regulation, the status of corporations is established by federal laws, but the following features of the status of such federal laws must be taken into account: statutory federal laws determine the competence and organizational and legal forms of corporations. In relation to each of them, a statutory federal law is adopted that establishes its functions and powers, types of legal relations with executive authorities, and the property status of the corporation. A statutory federal law always dominates the system of federal laws regulating the activities of corporations: in the event of conflicts between its prescriptions and the prescriptions of other federal laws, the statutory federal law is subject to application, which establishes when and in what cases other federal laws can be applied. In the cases established by a statutory federal law, the organizational forms of activity of a state corporation may be determined by a special federal law acting along with the statutory federal law. Special federal laws may establish, for example, the procedure for using the property of a state corporation in the event of its reorganization or liquidation, and the timing of these organizational measures.

Ordinary federal laws define the foundations of the public status of a state corporation as a whole as one of the forms of non-profit organizations. At the same time, individual elements of their status are not regulated, for example, the name of the corporate management bodies and their competence can only be established by a statutory federal law.

The scope of application of ordinary federal laws is limited by separate regulations, for example, the basis for the public status of state corporations is determined by Art. 7.1 of the Federal Law of January 12, 1996 N 7-FZ "On non-profit organizations" (as amended by the Federal Law of July 8, 1999 N 140-FZ). Ordinary federal laws are applied in the areas established by statutory federal laws, for example, paragraph 3 of Art. 17 of Federal Law No. 82-FZ of May 12, 2007 "On the Development Bank" provides that state registration of the Development Bank as a special type of state corporation is regulated by Federal Law No. 129-FZ of August 8, 2001 "On State Registration of Legal Entities and individual entrepreneurs". Thus, in relation to the specified state corporation, it is possible to use the prescriptions of an ordinary federal law.

By-laws regulating the activities of state corporations mainly include resolutions of the Government of the Russian Federation. Normative legal acts of the federal executive bodies are applied only in cases specifically provided for by the federal laws in question, decrees of the President of the Russian Federation or decrees of the Government of the Russian Federation.

For state corporations, a special procedure has been established for relations with executive authorities and other public bodies. Let us consider in more detail the forms of interaction between corporations and public bodies in the administrative, organizational and property spheres.

The interaction of corporations and public bodies in the administrative sphere arises at the moment of completion of organizational measures related to the establishment of corporations. Such measures include making a property contribution by a public body in the form of real estate, public financial resources, and technical support. The public property contribution forms the basis of the authorized capital of the corporation. At subsequent stages of activity, i.e. after the completion of all activities related to the establishment of a corporation, the basis of its property status is income received from the implementation of its statutory activities in managing public finances, implementing investment projects and other socially significant functions. As a general rule, the completion of the above organizational measures is determined by the termination of public procedures, which include the state registration of a corporation as a legal entity and the subsequent formation of its governing bodies. The statutory federal law may establish other public procedures, in the course of which the corporation is fully vested with the powers of a state non-profit organization. Registration procedures related to the creation of corporations as a public legal entity precede other organizational measures (for example, the formation of its sole and collegiate management bodies); registration procedures are carried out by the Federal Registration Service and are completed at the time of issuance of a certificate of state registration.

Thus, a state corporation exercises its powers as a subject of public relations at the moment of initiating registration relations, however, the corporation is vested with property and other powers in full after the completion of all public procedures determined by the statutory federal law.

Organizational procedures proceed at the stage of formation of the governing bodies of the state corporation, their competence is determined by the statutory federal law. The types of governing bodies of a corporation are determined by its purpose, but some unified features can be noted for all state corporations. Executive authorities or other public bodies establish the forms of their representation in the collegiate management bodies of the corporation - in the supervisory board, board or other bodies determined by federal law. The status of a corporation, unlike other types of non-profit organizations, is established by federal law, acts of executive authorities and other public bodies. The requirements of Art. 52 of the Civil Code of the Russian Federation on the adoption of the charter as a special constituent document does not apply in this case.

Tasks, functions and powers of collegiate bodies are established by regulations and other internal regulations approved by such bodies. The procedure for convening and holding meetings of collegiate bodies, as well as the procedure for making decisions by them, are determined by the regulations; these normative legal acts are applied in order to streamline the intra-organizational activities of the corporation and do not apply to constituent documents. The public interests of the state always dominate the decisions made by the collegiate governing body of the corporation.

The state, represented by its representatives in collegiate bodies, controls the activities of the chairman or other senior official of the corporation. The procedure for appointing and dismissing the chairman of a corporation is determined by federal law. With regard to the Development Bank, the relevant powers are assigned to the jurisdiction of the head of state. The chairman of the corporation is its sole executive body, in his activities he is guided by the decisions of the collegiate bodies. The procedure for the relationship of the chairman of the corporation with the relevant collegiate body is determined by the regulation on the supervisory board or other internal acts of the corporation, which also establish the responsibility of the chairman of the corporation.

Thus, the chairman of the corporation is controlled and accountable to the collegial body and is obliged to implement the decisions made by him. Thus, the public interests of the state, represented in the corporation by officials of the executive authorities who are members of the supervisory board (board of directors), and the board of the state corporation are also realized. General state interests always dominate corporate interests, this is confirmed by the dominant role of the supervisory board (board of directors) of a state corporation in the system of its governing bodies: it is the councils as special collegiate bodies, which include representatives of public bodies, who always make up the majority of the board members, determine the policy of daily board activities.

National interests determine the property status of the corporation. All state corporations, in accordance with the status of a non-profit organization, carry out activities for its intended purpose - in the forms established by the federal law on the creation of a state corporation. The state gives corporations special property rights and obligations, such relations are due to the policy of state protectionism. Public patronage of the activities of corporations provides for the transfer of certain state powers to them, as well as the provision of special benefits and advantages that are not available to other participants in commercial activities. The interests of the Russian Federation in relations with state corporations are represented by the Government of the Russian Federation, federal executive bodies, the Bank of Russia, other public bodies and their officials.

Corporations are delegated certain public powers in the forms and scope that are established by statutory federal law. For example, the Development Bank has the right to provide state guarantees to Russian and foreign commercial organizations (including banks), along with them, the Development Bank issues its own bank guarantees to participants in foreign trade activities. The Development Bank acts on behalf of the Russian Federation in interstate financial relations, in particular in relations arising from the provision of credits and loans by a foreign state to the Russian Federation, and makes settlements on such credits and loans on behalf of the Russian Federation.

Relations between public bodies and corporations are based on the principle of public-private partnership, according to which the corporation recognizes the dominant role of national interests in relations with a public body. The Corporation participates in the implementation of federal targeted programs and state investment programs (including foreign economic ones), guided primarily by the public interests of the state along with corporate interests. Regulatory legal acts of the Government of the Russian Federation are of particular importance in regulating the property powers of a corporation. For example, in relation to one of the largest state corporations - the Development Bank, the Government of the Russian Federation approves the main directions and indicators of investment and financial activities.

Thus, state corporations exercise their powers by agreement or with the direct participation of executive authorities. The following main areas of relations between corporations and public bodies can be distinguished:

When implementing licensing and permit rules, corporations-licensees are obliged to comply with the requirements established by the licensing authority, in particular, when such authority implements license control measures. In accordance with the status of a corporation established by federal law, it is subject to the general requirements defined by federal legislation on licensing, or the corporation is subject to special requirements established by federal law. For example, the Development Bank carries out banking operations in accordance with the Federal Law "On the Development Bank", general licensing requirements established by Art. 13 of the Federal Law "On Banking and Banking Activities" do not apply in this case;

In the field of commercial activities, the powers of a state corporation are limited in the interests of meeting national needs. The profit of a state corporation may be used in agreement with a public body established by federal law. As a rule, such profit can be used with the consent of the supervisory board or other collegiate body representing the interests of the state.

Legal acts are one of the main forms of external management of a corporation. Such acts are the most important method of regulating the relationship of a corporation with general and special control bodies, executive authorities, other public bodies, as well as with an independent audit organization.

The status of a corporation excludes the interference of state authorities in its economic activities, except for the cases directly specified in the federal law on the creation of a corporation. Legislation regulates the following cases of direct public interference in the activities of state corporations.

The most significant public intervention in the sphere of property relations. When carrying out commercial activities, state corporations have the right to spend profits for their intended purpose - in accordance with the social priority areas established by the federal law on the creation of a corporation.

Public control over the activities of state corporations provides for the implementation of internal control measures carried out at the initiative of the corporate body, and external control measures assigned to the jurisdiction of the executive authority or other public body. Activities related to the conduct of internal financial control include the provision of internal audit, i.e. verification of compliance with the rules of accounting and financial (accounting) reporting by the structural divisions of the state corporation. Internal financial control is not limited to auditing, its subject is the verification of the financial and economic activities of the corporation as a whole. Unlike an audit, an audit also affects the legal obligations and provides for control over the conclusion of transactions, the implementation of investment and other types of property activities involving the use of funds or the disposal of real estate.

State corporations are special public non-profit organizations, unlike other legal entities, they cannot be subject to a civil sanction in the form of liquidation of the organization by a court decision in accordance with the rules established by par. 2 p. 2 art. 61 of the Civil Code of the Russian Federation. The rules established by Art. 65 of the Civil Code of the Russian Federation and other federal legislation on insolvency (bankruptcy).

The liquidation of a corporation and its procedure are not due to civilistic, but exclusively public prerequisites established by federal law. Thus, the liquidation procedure is determined by a special federal law, which operates along with the statutory law on the establishment of a corporation. The legal prerequisites for the liquidation of a corporation are determined by a statutory federal law in those cases where corporations are created to carry out social priority activities limited by the period established by such a law, after which the powers of the corporation are terminated and the procedure for its liquidation comes into force. With regard to state corporations operating on a permanent basis, the liquidation procedure is determined by a special federal law.

State corporations are special subjects of administrative activity, their commercial powers are limited to meeting the public needs of the state. The following elements of the public status of state corporations can be distinguished:

a) in the organizational and legal form of a state corporation, only large economic entities with a significant amount of capitalization are created. For example, the authorized capital of the Development Bank exceeds 70 billion rubles, the size of the public property contribution provided to the Housing and Utilities Reform Assistance Fund is 240 billion rubles, the amount of public finance provided to the Agency for the Restructuring of Credit Organizations amounted to 3 billion rubles. (in December 2003 prices);

b) executive authorities and other bodies ensure the property autarchy of state corporations, transferring to them budgetary funds, public real estate, logistics and other public property as a property contribution;

c) public bodies provide the most favored nation treatment for the activities of state corporations. They are not subject to property encumbrances established for other economic entities, in particular, financial insolvency (bankruptcy) procedures are not applied to them;

d) the interests of public bodies are represented in all management bodies of the state corporation that authorize commercial activities. The corporation's funds are invested in order to meet social priority needs;

e) executive authorities and other state bodies delegate to corporations public powers in the areas of implementation of federal target programs, state investment programs. Corporations provide state guarantees to commercial organizations, secure and repay state credits and loans, and exercise other public powers established by federal laws. The commercial potential of the state corporation is provided with property and legal support of public bodies. Thus, the corporation's financing of social priority programs is an indirect form of distribution of public finances for national purposes.

State corporations, along with state authorities, participate in the implementation of the socio-economic policy of the state.

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R kill 2,000.00

Ready-made thesis in civil law on the topic "Legal status of state corporations". This work was carried out taking into account changes in Russian legislation as of November 2009. The individuality of this work when checking in the Anti-plagiarism system is 71%.

Description

Introduction
Chapter I. The concept and features of state corporations as subjects of civil law relations
1.1 General characteristics of the regulatory framework of the Russian Federation dedicated to state corporations
1.2. The concept and features of state corporations
1.3. The procedure for the creation, reorganization and liquidation of state corporations
Chapter II. General characteristics of state corporations and their activities
2.1. General position of modern state corporations in the Russian Federation
2.2. Specificity of legal regulation of state corporations
2.3. Prospects for the development of Russian legislation on the example of state corporations
Conclusion
Bibliography

The thesis in civil law on the topic "Legal status of state corporations" was written in November 2009.

The volume of work is 70 pages.

Introduction

The relevance of the topic of the thesis. The rapid development of the Russian economy during the period of rising oil and gas prices, the active attraction of foreign investment in the Russian economy in 2000-2008, as well as the relative stability of the global economy, allowed the Russian Government to accumulate huge financial resources that were directed to various expensive social projects (For example, , a national affordable housing project), complex infrastructure projects (Preparation for the APEC summit in 2012 in Vladivostok and the Winter Olympics in Sochi in 2014). The above and other strategic projects that require large financial investments require, among other things, high management efficiency of organizational structures using budgetary funds. As a result, it was decided not to use the form of a unitary enterprise or joint-stock company, but to create state corporations endowed with the broadest powers, which, in the opinion of the state authorities, are capable of solving the grandiose tasks planned by the Government of the Russian Federation.

The use of state corporations to solve strategic projects of the Russian state was motivated by the viability of the first Russian state corporation, the Deposit Insurance Agency, established in 2003. This state corporation effectively influenced the development of the banking sector, and also manages significant financial resources.

The deposit insurance fund of the state corporation at the beginning of the year 2008 increased to 68 billion rubles. This is more than 5 percent of insured deposits, which corresponds to the adequacy ratio recognized by world practice. In 2007, the profitability of placement of temporarily free funds of the fund was 7.2 percent. Profit from investment made it possible to increase the deposit insurance fund in the amount of about 2.7 billion rubles. According to the head of the state corporation A. Turbanov, the Deposit Insurance Agency's cash reserves by the end of 2008 will increase to 95-97 billion rubles.

Conclusion

A state corporation is a new subject of law, whose legal capacity is exercised primarily in the areas of civil and administrative law.

Public origin, close managerial relationship with the state, and overall managerial appearance - this is the framework of the status of a state corporation. The original property regime and “free floating” in market relations are civil law features. Obviously, public corporations are subject to mixed legal regulation. In any case, this is how we will call it until the status of public legal entities is fully regulated within the framework of public law.

The very emergence of state corporations testifies to the strengthening of the direct participation of the state in economic relations. "To a certain extent, a significant adjustment of the country's liberal course of economic development, aimed at strengthening the public sector of the economy, has been demonstrated." Of course, state corporations are another conductor of the economic policy of the state, and this requires the consolidation of their special connection with the state.

The most common reasons for the creation of state corporations in the world are the economic crisis, the lack of goods and services of public importance, their low quality or inflated prices, the need to weaken the country's historical dependence on foreign capital. Therefore, state corporations are a new subject link in the conduct of state policy in a particular area. They are a consequence of deregulation, since they must, on the one hand, fit into the market system, and on the other hand, carry out managerial functions, “unloading” the state.

Bibliography

I. Regulatory legal acts and materials of judicial practice

Civil Code of the Russian Federation (part one) dated November 30, 1994 N 51-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on October 21, 1994) (as amended on July 17, 2009, as amended on July 18, 2009) // Collection of Legislation of the Russian Federation, 05.12.1994 , N 32, art. 3301
Federal Law No. 7-FZ of January 12, 1996 (as amended on July 17, 2009) “On Non-Commercial Organizations” (adopted by the State Duma of the Federal Assembly of the Russian Federation on December 8, 1995) (as amended and supplemented, effective from August 1, 2009) // Collection of Legislation of the Russian Federation, 15.01.1996, N 3, art. 145
Federal Law No. 140-FZ of 08.07.1999 “On Amending the Federal Law “On Non-Commercial Organizations” (adopted by the State Duma of the Federal Assembly of the Russian Federation on 06.25.1999) // SZ RF. 1999. N 28. Art. 3472
Federal Law of July 8, 1999 N 144-FZ "On the restructuring of credit institutions" // SZ RF. 1999. N 28. St. 3477.
Federal Law No. 87-FZ of July 28, 2004 “On Recognizing the Federal Law “On the Restructuring of Credit Institutions” and Certain Provisions of Legislative Acts of the Russian Federation as Invalid, as well as on the Procedure for Liquidating the State Corporation “Agency for the Restructuring of Credit Institutions” // SZ RF. 2004. N 31. Art. 3223
Federal Law No. 177-FZ of December 23, 2003 (as amended on December 22, 2008, as amended on September 27, 2009) “On insurance of deposits of individuals in banks of the Russian Federation” (adopted by the State Duma of the Federal Assembly of the Russian Federation on November 28, 2003) // Collection of legislation RF, December 29, 2003, N 52 (Part I), art. 5029
Federal Law No. 82-FZ of May 17, 2007 “On the Development Bank” (adopted by the State Duma of the Federal Assembly of the Russian Federation on April 20, 2007) // Collection of Legislation of the Russian Federation, May 28, 2007, No. 22, art. 2562
Federal Law of July 19, 2007 N 139-FZ (as amended on April 9, 2009) “On the Russian Corporation of Nanotechnologies” (adopted by the State Duma of the Federal Assembly of the Russian Federation on July 4, 2007) // Collection of Legislation of the Russian Federation, July 23, 2007, N 30, art. 3753
Federal Law of July 21, 2007 N 185-FZ (as amended on July 17, 2009) “On the Fund for Assistance to the Reform of Housing and Communal Services” (adopted by the State Duma of the Federal Assembly of the Russian Federation on July 6, 2007) // Collection of Legislation of the Russian Federation, 07/23/2007, N 30, Art. 3799
Federal Law of October 30, 2007 N 238-FZ (as amended on July 17, 2009) “On the State Corporation for the Construction of Olympic Facilities and the Development of the City of Sochi as a Mountain Climatic Resort” (adopted by the State Duma of the Federal Assembly of the Russian Federation on October 18, 2007) // Collection of Legislation of the Russian Federation, 05.11 .2007, N 45, Art. 5415
Federal Law of November 23, 2007 N 270-FZ (as amended on May 7, 2009) “On the State Corporation “Russian Technologies” (adopted by the State Duma of the Federal Assembly of the Russian Federation on November 9, 2007) // Collection of Legislation of the Russian Federation, November 26, 2007, N 48 (2 hours). ), Art. 5814
Federal Law of December 1, 2007 N 317-FZ (as amended on July 19, 2009) “On the State Atomic Energy Corporation Rosatom” (adopted by the State Duma of the Federal Assembly of the Russian Federation on November 13, 2007) // Collection of Legislation of the Russian Federation, December 3, 2007, N 49, Art. 6078,
Federal Law of December 2, 1990 N 395-1 (as amended on April 28, 2009) “On Banks and Banking Activities” // Collection of Legislation of the Russian Federation, February 5, 1996, N 6, Art. 492
Federal Law of August 8, 2001 N 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" // SZ RF. 2001. N 33 (part I). Art. 3431
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Sergey Kuznetsov. Legal status of state corporations // STATE SERVICE,

2015, №1 (93)

Sergey Kuznetsov, Associate Professor of the Faculty of Finance and Banking of the Russian Academy of National Economy and Public Administration (119571, Moscow, Vernadsky Avenue, 82). Email: [email protected]~ Kuznetsov
Annotation. The article discusses the directions of criticism of state corporations, which served as the basis for including the corresponding block of questions in documents on reforming civil legislation and taking measures to reduce the number of state corporations. The main areas of criticism were issues related to the legal nature of state corporations, individual regulation through laws, the absence of constituent documents, the lack of general regulation of state corporations; high risk of corruption, lower economic efficiency of their activities.
Keywords: state corporations, civil law, legal entity of public law, public company.

State corporations are actively criticized, although many opponents of this phenomenon are not completely clear on the legal nature and history of its appearance in legislation. The proposed study summarizes exclusively the legal aspects of criticism of state corporations in order to build on this basis a “legal map of identified problems” for the further development of the theory of legal entities of public law. The review is built in the form of a reflection of the stated criticism on any issue and a commentary on it.

State corporations are neither corporations (they do not have membership), nor state organizations (being private owners of their property), nor non-profit organizations, because in a number of cases they are created to carry out entrepreneurial activities.

Critics express the position that when creating state corporations, their real legal nature does not correspond to the legal form assigned to them in the legislation. At the same time, the organizational and legal forms proposed by the Civil Code of the Russian Federation are regarded as a dogma. In this case, there is a clear misunderstanding of the legal nature of state corporations, which lies precisely in the public-private origin (public goals by private methods), since entrepreneurial activity in this case is not an end, but a means.

Each state corporation is created on the basis of a special federal law, and therefore, unlike all other legal entities, it does not have constituent documents. This is the main feature of their status.

From the point of view of the doctrine of law and foreign experience, this feature is indeed distinctive for legal entities of public law. In this aspect, it makes state corporations related to public authorities, which, being legal entities, also do not have constituent documents, but act on the basis of public legislative acts. In this case, the fact of legalization of state corporations at the level of the law does not in the least detract from their status as a legal entity, but, on the contrary, gives them additional legal authority.

Criticism of such an organizational form, perhaps, can only be explained by a kind of civil law bias in the assessment of subjects of law, the primacy of the concept, according to which the activities of legal entities are determined exclusively by the Civil Code. However, this is not true, since in the Russian Federation a legal situation has long been established in which the activities of public authorities as legal entities are determined by other acts that have a public law content. In line with this criticism lies the thought of V.A. Vaypan about the need for “implementation at the legislative level of general principles regarding the same type of legal entities. A certain legal matrix must be developed, in which all subjects of law known to us must be entered. And this matrix should be at the level of the federal law... Violation of this logic of lawmaking leads to the destruction of the principles of law, distortion of equality of legal opportunities” [Vaipan V.A. On the issue of legal entities of public law. Law and economics. 2011. No. 3].

There is no general law on state corporations, and the Federal Law “On non-commercial organizations” is insufficient for uniform regulation. In this regard, uniform requirements have not been developed, and each new law on a state corporation repeats many norms of existing laws.

This point should be recognized as quite natural. The general law on public legal persons will make it possible to regulate a number of legal institutions, about which there are mainly disputes between specialists and politicians. Other experts share this point of view. For example, V.I. Lafitsky believes that "it is necessary ... to issue a special general law on legal entities of public law, which would establish rules on their special legal capacity ... Such a general regulatory legal framework will serve as the basis for the development of special laws on certain types or unique legal entities of public law" [ Lafitsky V.I. On the issue of legal entities of public law. Journal of Russian Law. 2011. No. 3]. V.V. also writes about the need for a general law. Bondarenko: “The first step could be the legislative consolidation of the concept of dividing economic entities into legal entities of private law and legal entities of public law, primarily at the level of codified sources. The next step could be the development and adoption of a special regulatory legal act that defines the legal status of legal entities of public law, fixes the signs, on the basis of which it would be possible to classify a legal entity as a legal entity of public law, etc.” [Bondarenko V.V. Public legal status of state corporations. Legal field of modern economy. 2012. No. 2. P. 115]

Assets transferred by the state to a state corporation cease to be an object of state property. The state has neither a real right to this property (unlike federal state unitary enterprises and state institutions), nor obligations in relation to the state corporation itself (unlike a joint-stock company with a state stake or a non-profit partnership), therefore, such an operation, by its legal nature, is a gratuitous privatization.

In this case, it is necessary to highlight several circumstances at once. Indeed, from the point of view of the legislation on privatization, the establishment of state corporations is privatization, but only at first glance. Property is indeed removed from the possession of the Russian Federation, but this act is not final, since the state corporation itself does not have the right to alienate the property of the federation, at least legally, and its legal fate is connected with the fate of the state corporation itself as a legal entity. In turn, the final fate of the state corporation is determined by federal law, that is, an act of the state. Thus, the property transferred to state corporations is not completely removed from state ownership, since the state always has the right to further dispose of this property. For example, the Russian Corporation of Nanotechnologies was transformed into a state joint-stock company. That is, comparing the act of granting property to state corporations with illegal (free) privatization is legally not entirely correct.

This approach is connected with the doctrinal provision that the Government of the Russian Federation is the only subject of disposition of federal property. In fact, the situation of multi-subject disposition of federal property has long been established. The right of the Federal Assembly to dispose of state property through the legislative procedure is not disputed either.

Consequently, in the legal plane, it would be more correct to raise the question not about the illegality of privatization through the transfer of property to state corporations (legal entities of public law) on the basis of federal law, but about the legislative consolidation of improving the forms and methods of managing federal property. Within the framework of such a paradigm, on the one hand, the state has an additional level of mobility in the implementation of its economic activities, and on the other hand, property objects will not be removed from the jurisdiction of the state.

The transfer of ownership of state property increases the risk of corruption.

In itself, such an accusation against the organizational and legal form is rather contradictory, since corruption is promoted not by the very fact of the transfer of property, but by the legal procedures of this act and the regime for the subsequent use of property. As for state corporations, the problem boils down to insufficient control over their use of state property. It is the lack of proper control that lawyers refer to when criticizing state corporations: “... compared to state unitary enterprises, the property of state corporations is practically removed from direct state control” [Dubovtsev D. Does Russian state corporations have a future? Federalism. 2012. No. 2 (66). S. 168]. The analysis revealed a number of areas that allow the withdrawal of the state corporation's assets from its property. T.V. Bondar notes as the main feature of "state corporate property the lack of natural motivations for its subjects to work effectively" [Bondar T.V. State corporation as an organizational way of realizing state property. News of the Irkutsk State Economic Academy. (Baikal State University of Economics and Law), (electronic journal). 2012. No. 2. P. 30], which significantly reduces the effectiveness of this form of ownership. Many researchers point to the need to introduce "performance indicators that allow an objective assessment of the work of the management of enterprises, as well as mechanisms that establish management's responsibility for the results of the organization's work" [Bagaryakov A. State corporations: experience and prospects. Risk: resources, information, supply, competition. 2011. No. 3. S. 229]. In order for the heads of state corporations, who are essentially officials, to ensure the socially beneficial result of the activities of these organizations, “it is necessary to pay due attention to their organizational and legal status ... It seems possible to create an institution of legal entities of public law, which will include state corporations. These legal entities must necessarily be regulated by administrative law” [Adarchenko E.O. State corporations as a type of legal entities of public law. Administrative and municipal law. 2012. No. 7. P. 15].

Let us consider specific examples of possible corruption risks.

Free funding. Some corporations (Rosnanotech, Rostekhnologii, FSR Housing and Public Utilities) have (had) the right to allocate funds to various recipients on the basis of gratuitous financing, which makes so-called “kickbacks” possible.

Issuance of concessional loans. The non-commercial status of state corporations allows them to issue preferential loans for targeted activities at a rate significantly lower than the market rate, which can bring profit even from medium-yield assets. Part of this profit goes to the managers of state corporations who have decided to issue a loan. The risks associated with the issuance of soft loans and gratuitous financing are exacerbated by the fact that potential recipients of these funds do not actually have the opportunity to rationally master a lot of money in a short time.

Contribution of funds to the authorized capitals of subsidiaries and affiliates. The co-founders of such subsidiaries may be private enterprises, including those registered abroad, in offshore zones and ultimately owned by the managers of the corporation. Thus, budget money ends up in the ownership of private companies not controlled by the state.

Lease of assets on preferential terms. Tenants are usually enterprises that formally belong to the areas of activity for which the state corporation was created to support. In reality, nothing will prevent them from subleasing assets at real market rates, sharing the profits with the managers of the state corporation.

Purchases at inflated prices. Control over purchases by public corporations is much weaker than control over purchases by state institutions and commercial organizations with state participation. This allows managers to purchase goods at inflated prices, receiving "kickbacks" from suppliers for this. Such schemes are possible not only when acquiring material assets, but also when hiring personnel, concluding insurance transactions, etc.

Excessive construction and renovation costs. Construction and repair costs are an area of increased risk of abuse, even in the conditions of an optimal institutional structure of the organization. Each construction and repair project is unique to some extent, and therefore only the manager directly managing the project can accurately assess the validity of the costs associated with it. Under these conditions, there is an incentive for managers to spend patently excessive amounts, using pocket contractors or colluding with them.

Issue of debt securities with increased yield. Some state corporations have been given the right to issue debt securities - bonds and bills. At the same time, managers have every opportunity to make the cost of these securities very low (profitability, respectively, high), and the procedure for their placement - extremely closed and focused on a narrow circle of close associates. Thus, a state corporation can systematically pay significant amounts to holders of these securities.

Stock market manipulation. A “timely” leak of information about exactly which securities the corporation will invest its temporarily free funds in will allow both the stock speculator who received this information and the organizer of the leak to make a big profit. The public corporation itself, having allowed such a leak, will be forced to buy securities at higher prices or sell at lower prices, since the dissemination of information in the market will change prices before the corporation begins its planned operations.

It should be noted that in many respects this thesis is hypothetical: with the adoption in 2010 of amendments to the Federal Law “On the Accounts Chamber of the Russian Federation”, state corporations were introduced into the sphere of supervisory powers of the Accounts Chamber.

For state corporations, the law establishes a rule on the targeted nature of the use of their property, which is inherent in institutions.

This provision does not take into account the quite clear norm of paragraph 3 of Art. 12 of the Civil Code of the Russian Federation, which precisely determines that the law may establish the specifics of the exercise of the right to use, possess and dispose of property owned, including by the federation. An indication of the intended nature of the use of property of state corporations refers precisely to the peculiarities of its use.

The issue of using the property of state corporations to support their activities (salary to employees, hospitality expenses, acquisition of property, etc.) has not been resolved.

The absence of a clear legislative solution to this issue largely gives grounds for accusations of a special corruption capacity of this organizational form. However, the non-distribution of profits among the participants - a fundamental feature that makes this organizational and legal form related to non-profit organizations - is not equivalent to the concept of "disordered use of profits." Obviously, the property of state corporations received from the Russian Federation cannot but be used for the purpose of ensuring their own activities.

At the same time, different approaches to this issue were indicated in the legislation on state corporations. So, for example, the Deposit Insurance Agency provides for financing of expenses strictly according to the estimate, and the deposit insurance fund, where the income is directed, is separated from its other property. The Housing and Utilities Reform Assistance Fund also provides for the approval of the estimate. Other state corporations, by decision of the supreme governing bodies, have the right to form special-purpose reserves (funds) as part of their property.

The general rules on the status of state corporations contain various and numerous exceptions to the general status of legal entities: in particular, they are not subject to the general obligation of non-profit organizations to periodically submit to the authorized body a report on their activities and on the use of their property.

This exemption from the legal status of non-profit organizations in practice turned into a number of serious claims about the lack of control over the activities of state corporations in general. So, V.A. Vaypan emphasizes that special regulation should take place only on the basis of the existing general regulation [Vaipan V.A. On the issue of legal entities of public law. Law and economics. 2011. No. 3. In this sense, general rules on the reporting of state corporations can be provided for in a general law on the activities of legal entities of public law, which can be specified in special laws.

Until 2010, the legal situation was described as follows: property is transferred by the state to the ownership of a state corporation, so its activities are not subject to the control powers of the Accounts Chamber of the Russian Federation. Other control mechanisms also turned out to be ineffective: there is no separate government agency to which state corporations would be subordinate, and there is also no agency to control state corporations. The changes adopted in 2010 to the Federal Law “On the Accounts Chamber” made it possible to make the activities of state corporations completely transparent to the state.

In fact, a state corporation is not an organizational and legal form of a legal entity from the standpoint of the Civil Code and civil law in general, but a special way of creating subjects of law that are unique in their legal status.

This provision indicates that the nature of public legal entities is no longer an absolute novelty for the Russian scientific community. At the same time, the creation of subjects of law, which by their legal nature are public-private, continues to be regarded as a negative fact, although the introduction of a new category of legal entities into the legal system of Russia should be assessed, on the contrary, only on the positive side.

The very economic feasibility of this organizational and legal form is questioned.

The main thesis of this point of criticism is based on the contradictions in the activities of state corporations. Some researchers, for example, K.S. Stepanov, note that in state corporations, contradictions remain between the commercial nature of the companies forming the corporation and the requirement of the law for their non-commercial nature. “In the process of creating the corporations in question, their goals (development of high-tech products) were replaced by the desire to take a monopoly position in the market in the formation of the state order and establish a price monopoly” [Stepanov K.S. State Corporations: Externalities and Contradictions of Development. Bulletin of VSU. Series: economics and management. 2011. No. 2. P. 42–43.], which exacerbates an already serious problem for our country - the problem of competition.

However, it should be emphasized that such logic is based on the commercial essence of a state corporation, meanwhile, it combines the features of an administrative body with the activities of an economic entity, which is its "generic" feature. Hence all the misunderstandings in determining the effectiveness of its activities as an exclusively economic entity.

Literature

Adarchenko E.O. State corporations as a type of legal entities of public law. Administrative and municipal law. 2012. No. 7.

Bagaryakov A. State corporations: experience and prospects. Risk: resources, information, supply, competition. 2011. No. 3.

Bondarenko V.V. Public legal status of state corporations. Legal field of modern economy. 2012. No. 2.

Bondar T.V. State corporation as an organizational way of realizing state property. News of the Irkutsk State Economic Academy (Baikal State University of Economics and Law), (electronic journal). 2012. No. 2.

Vaypan V.A. On the issue of legal entities of public law. Law and Economics, 2011. No. 3.

Vinnitsky A.V. On the need for legislative consolidation of the institution of legal entities of public law. Journal of Russian Law. No. 5, 2011.

Dubovtsev D. Do Russian state corporations have a future? Federalism, 2012. No. 2 (66) .

Lafitsky V.I. On the issue of legal entities of public law. Journal of Russian Law. No. 3. 2011.

Stepanov K.S. State Corporations: Externalities and Contradictions of Development. Bulletin of VSU. Series: economics and management. 2011. No. 2.

This criticism was expressed before the start of the reform of state corporations.