economic basis constitutional order Russian Federation is the emerging social market economy, in which the production and distribution of goods and benefits are carried out mainly through market relations. Their participants are private business entities that compete with each other. The Russian Federation supports this competition, and also takes measures to prevent monopoly privileges and exercises appropriate control.
“In the Russian Federation,” the Constitution states (Article 8), “the unity of the economic space, the free movement of goods, services and financial resources, support for competition, freedom economic activity».
The Russian Federation also has the Law of March 22, 1991 “On Competition and Restriction of Monopoly Activities on commodity markets"(with amendments and additions)" . The law determines the organizational and legal framework prevention, restriction and suppression of monopoly activities and unfair competition and is aimed at providing conditions for the creation and effective functioning of commodity markets, at combating local separatism.
The law prohibits the actions of an economic entity occupying a dominant position that have or may result in the restriction of competition and (or) infringement of the interests of other economic entities or citizens, including such actions as withdrawing goods from circulation in order to create or maintain a shortage in the market , price increases, inclusion in the contract of discriminatory conditions that put a competitor in an unequal position compared to other business entities; creation of obstacles to market access (exit from the market) to other economic entities; violation of the pricing procedure established by regulatory enactments, etc.
The law prohibits and, in accordance with the established procedure, invalidates fully or partially agreements (concerted actions) reached in any form by competing economic entities (potential competitors) that have (or may have) an aggregate market share of a certain product of more than 35 percent, if such agreements (agreed actions) have or may result in a significant restriction of competition, including agreements or concerted actions aimed, in particular, at establishing (maintaining) prices (tariffs), discounts, allowances (additional payments), margins;
increase, decrease or maintenance of prices at auctions and auctions; division of the market according to the territorial principle, according to the volume of sales or purchases, according to the range of goods sold or according to the circle of sellers or buyers (customers).
The law prohibits the authorities from adopting acts and (or) taking actions that restrict the independence of economic entities, create discriminatory or, on the contrary, favorable conditions for the activities of individual economic entities, if such acts or actions have or may result in restriction of competition and (or) infringement interests of business entities or individuals.
The Law provides state control for compliance with antimonopoly legislation when acquiring shares (stakes) in the authorized capital of business entities. Assistance in the formation of market relations based on the development of competition and entrepreneurship, prevention, restriction and suppression of monopolistic activities and unfair competition, as well as state control over compliance with antimonopoly legislation are assigned to the federal antimonopoly body.
Creating a social market economy. The Russian Federation strives to ensure freedom of economic activity, entrepreneurship and labor, fair competition and public benefit, so that the regulation of economic life by the state is carried out in the interests of the individual and society, and economic relations are built on social partnership between the individual and the state, the employee and the employer, the manufacturer and the buyer.
In the context of a developing market economy in Russia, the production and distribution of goods are carried out as private and public enterprises and institutions, includes enterprises and institutions of the constituent entities of the Russian Federation.
The state in various forms should be responsible for the most important aspects of the organization of production and distribution in the country as a whole, in particular for what most affects the interests of the population. First of all, we are talking about the reliability of supplying the population with everything necessary; about guarantees for the growth of production and ensuring the participation in production and distribution of all able-bodied persons (that is, about employment);
on mitigating the consequences of instability in the economy (price regulation, etc.) or fluctuations in demand in the international market;
about relieving internal tension in the regions and between certain spheres of life and groups of people.
For economic system The Russian Federation is characterized by a variety of forms of ownership. The regulation of property relations is carried out through various legal norms, the central place among which belongs to the constitutional norms - the basis of all legal regulation of property relations.
The constitutional regulation of property relations has its own specifics. It is expressed in that main task is the legal consolidation of forms of ownership recognized by the state. Thus, it is the constitutional norms that decide the question of what forms of ownership are recognized and guaranteed by the state.
The Constitution of the Russian Federation (Article 8) proceeds from the fact that the economic system of the Russian Federation is characterized by property in its various forms - private, state, municipal, etc.
The Constitution also establishes (Article 9) that land and other natural resources may be in private, state, municipal and other forms of ownership. They are used and protected in the Russian Federation as the basis for the life and activities of the peoples living in the respective territory.
The Constitution provides (Article 36) that citizens and their associations have the right to own land in private ownership. Ownership, use and disposal of land and other natural resources carried out by their owners freely, if it does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.
The conditions and procedure for the use of land are determined on the basis of federal law. Currently, in accordance with the Decree of the President of the Russian Federation of October 7, 1993 "On the regulation of land relations and the development of agrarian reform in Russia" "citizens and legal entities-- owners land plots have the right to sell, inherit, donate, pledge, rent, exchange, and also transfer land plot or part of it as a contribution to authorized funds (capitals) joint-stock companies, partnerships, cooperatives, including foreign investment. Citizens and legal entities may form a common joint or common fractional ownership by voluntary association of their land plots, land shares (shares).
The Russian state protects property in its various forms on an equal footing. “In the Russian Federation,” Art. 8 of the Constitution, private, state, municipal and other forms of ownership are recognized and protected in the same way. The Constitution also emphasizes (Article 35) that the right to private property is protected by law.
The most important areas for creating a market economy in Russia are the privatization and denationalization of economically significant property. With all the critical approach to voucher privatization and in general to the methods and forms of privatization in the country, on the whole it cannot be denied that, as a result of it, the foundations of a market economy have been laid in Russia. Moreover, the gradual abandonment of state regulation of the economy is accompanied by its commercialization and, in fact, capitalization. Often this process takes ugly forms, but - most importantly - a fundamentally different economy, a different system is being created. economic relations, completely new business entities.
The Constitution of the Russian Federation establishes (Article 35) that in Russia everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons. No one may be deprived of his property except by a court decision. The expropriation of property for state needs may be carried out only on the condition of prior and equivalent compensation.
In Russia, property relations not provided for by the Constitution are regulated by the Civil Code and other federal legislative acts, as well as legislative acts of the republics within the Russian Federation, territories, regions, federal cities, autonomous regions and autonomous districts, issued within the limits of their powers.
This is a collective principle, meaning the use of a dispositive method in regulation economic activity entrepreneurs. Entrepreneurship is an activity carried out at one's own risk. The state, its bodies are not entitled to interfere in business activities, establish any plans, directives, etc. Regulation entrepreneurial activity carried out in two main ways: firstly, through civil legislation, which fixes the legal forms of economic relations, and, secondly, through financial legislation, which establishes taxes on income from business activities and other objects of taxation;
4) diversity and equal protection of forms of ownership. The Constitution of the Russian Federation, in contrast to previous constitutions, establishes the equality of all forms of ownership, of which there are three: private, state and municipal. The Constitution of the Russian Federation also allows for “other forms of ownership”, but there are no other types of ownership. In addition, state and municipal property can be combined under the name "public property" - property belonging to the whole people (state property) or the population of certain territories (municipal property), while the powers of the owner are exercised by state or municipal bodies. Private property can be individuals(citizens, foreigners) and legal entities (commercial and non-commercial organizations).
Equality of forms of ownership means their equal legal regime, equal content of property rights, regardless of its form. It is not allowed to establish any restrictions or favors for this or that form of ownership. Equal protection of all forms of ownership is expressed in their equal protection by the norms of civil, criminal, administrative law. In case of competition of subjects of the right of state and private property, preference for any of them is not allowed.
The Constitution of the Russian Federation (Article 9) specifically allocates land and other natural resources as objects of property rights. It is established that these objects can be on the right of ownership in all its forms. At the same time, Part 1 of Art. 9 implies the possibility of limiting the legal regime of ownership of land and natural objects. This norm establishes the condition for exercising ownership of these objects: land and other natural resources are used and protected in the Russian Federation as the basis of life and activity of the peoples living in the corresponding territory. As “peoples living in the respective territory”, the Constitution of the Russian Federation primarily has in mind the indigenous peoples who enjoy special protection of the Constitution of the Russian Federation (Article 69). Ownership of land and other natural resources is also limited by the need to refrain from damaging the environment (Article 36 of the Constitution of the Russian Federation).
The right to carry out economic activity is one of the fundamental constitutional rights of man and citizen. According to Art. 34 of the Constitution of the Russian Federation "everyone has the right to free use of their abilities and property for entrepreneurial and other economic activities not prohibited by law." Along with other rights and freedoms enshrined in Ch. 2 of the Constitution of the Russian Federation, this right is inalienable, belongs to everyone from birth. Freedom of economic activity is proclaimed and guaranteed by art. 8 of the Constitution of the Russian Federation as an element of the constitutional status of the state.
Having secured the right of everyone to conduct economic activity, the Constitution of the Russian Federation determined the basic principles for its implementation. So, according to Part 2 of Art. 34 of the Constitution of the Russian Federation does not allow economic activity aimed at monopolization and unfair competition. The constitutional norms (Article 8) guarantee the unity of the economic space, the free movement of goods, services and financial resources, and support for competition.
According to G. A. Hajiyev, “in constitutional law, economic freedom is one of the most important constitutional principles, which together form what is considered the foundations of the constitutional order. This constitutional principle has a normative content: various orders, prohibitions, imperatives. Economic freedom in law exists both as a principle and as a norm (Article 8 of the Constitution of the Russian Federation).
According to E. P. Gubin, the implementation of the constitutional provision on the principle of freedom of economic activity will make it possible to move forward not only in the field of the economy, but also in all other spheres of the life of our society 1 . As the President of the Russian Federation V.V. Putin noted in his annual message to the Federal Assembly of the Russian Federation on December 3, 2015, “it is precisely with this - freedom of entrepreneurship, the expansion of this freedom of entrepreneurship - that we must respond to all the restrictions that they are trying to create for us” .
Economic relations are based on the recognition and protection of private, state, municipal and other forms of ownership in the same way (Article 8 of the Constitution of the Russian Federation). As a constitutional right, the right to private property is protected by law. Everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons (Article 35 of the Constitution of the Russian Federation).
As G. D. Sadovnikova points out, economic freedom is possible only in conditions of protection and protection by the state of all forms of ownership, including private. The state, represented by its bodies and officials, is obliged to protect, along with other forms of private property, to ensure its inviolability.
According to Art. 18 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice. Thus, the constitutional right to freely carry out economic activity is one of the basic provisions underlying economic legislation, the relevant sphere of activity of state authorities and local self-government, as well as economic justice.
Making a distinction between wage labor and independent economic activity, the Constitutional Court of the Russian Federation in its resolution of April 23, 2012 No. 10-P noted that the Constitution of the Russian Federation, in accordance with the goals of the welfare state enshrined in its Art. 7 (part 1), guarantees everyone both the freedom of labor and the right to freely dispose of their abilities for work, to choose the type of activity and profession, and the right to protection from unemployment (art. 37, parts 1 and 3), and also proclaims the right for the free use of their abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34, Part 1). Among the ways in which citizens can exercise these constitutional rights include wage labor, carried out in a freely chosen occupation and profession on the basis of employment contract concluded with the employer, as well as independent economic activity carried out in a freely chosen area individually or jointly with other persons by creating a commercial organization as a form of collective entrepreneurship. Giving preference to one method or another, citizens agree with the legal consequences that are determined by the established federal legislator - based on the essence and purpose of the relevant type of socially useful activity and the actual position of the person in the relations generated by it - the legal status of the subjects of this activity, including rights and obligations , as well as state guarantees for their implementation and measures of responsibility.
In this regard, it seems especially important to determine the content of the concept of "economic activity" and its relationship with related categories.
It should be noted that in the legislation of the Russian Federation there is no legal definition of economic activity. However, the conducted "inventory" shows that the term in question is used in regulatory legal acts, including laws, often and for various purposes.
Yes, ch. 22 of the Criminal Code of the Russian Federation is devoted to crimes in the sphere of economic activity. Article 28 of the Criminal Procedure Code of the Russian Federation defines the rules for terminating criminal prosecution in cases of crimes in the field of economic activity.
The Law on Protection of Competition uses the phrase "economic activity" to define the concept of "coordination of economic activity" (Article 4), as well as when introducing the rules for prohibiting its implementation (Part 5 of Article 11). For the coordination of economic activities of economic entities, which is unacceptable in accordance with antitrust laws RF, the Code of Administrative Offenses of the Russian Federation provides for administrative responsibility (part 2 of article 14.32 of the Code of Administrative Offenses of the Russian Federation).
Article 3 of the Tax Code of the Russian Federation, defining the main principles of legislation on taxes and fees, contains a ban on the establishment of taxes and fees that limit or create obstacles to the economic activities of individuals and organizations that are not prohibited by law.
Chapter 13 federal law dated December 29, 2012 No. 273-FZ “On Education in the Russian Federation” is devoted to economic
activities and financial support in the field of education, Ch. III of the Federal Law of July 17, 1999 No. 176-FZ "On Postal Communications" - the basics of economic activity in the field of postal communications; ch. II of the Federal Law of August 3, 1995 No. 123-FZ "On livestock breeding" - the basics of economic activity in the field of livestock breeding.
Article 1 of the Arbitration Procedure Code of the Russian Federation proclaims that justice in the sphere of entrepreneurial and other economic activities is carried out by arbitration courts. Article 27 of the Arbitration Procedure Code of the Russian Federation, defining the jurisdiction of cases, establishes that arbitration court jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities. Consequently, the question of qualifying an activity as an economic activity is raised to determine jurisdiction and is the subject of consideration by various courts.
Thus, canceling the decisions and decisions of lower courts made in the case, the Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of April 2, 2013 No. 14700/12, which forms the practice of applying the relevant legal norm, indicated: premises common property of an apartment building. Thus, the contention dispute common property residential house, charged from an entrepreneur, arising from civil legal relations and affecting the results of entrepreneurial activity of both the entrepreneur and the partnership, is directly related to the economic activities of two economic entities and, as expressly provided for by Article 28 of the Arbitration Procedure Code of the Russian Federation, is under the jurisdiction of the arbitration court.
Sub-legislative normative legal acts also regulate relations in the field of economic activity, in terms of this concept. For example, Decree of the Government of the Russian Federation of December 1, 2005 No. 713 approved the Rules for classifying types of economic activity as occupational risk. Decree of the Government of the Russian Federation of December 12, 2015 No. 1358 for 2016 established the permissible share of foreign workers used by economic entities engaged in certain types of economic activity in the territory of the Russian Federation.
AT All-Russian classifier types of economic activity (OKVED 2) OK 029-2014 (NACE Rev. 2)" states that economic activity takes place when resources (equipment
research, labor force, technology, raw materials, materials, energy, informational resources) are combined into a production process aimed at producing products (provision of services). Economic activity is characterized by the costs of producing products (goods or services), the process of production and the output of products (provision of services).
Similar clarifications were contained in OKVED OK 029-2001 (NACE Rev. 1) and OKVED OK 029-2007 (NACE Rev. 1.1). We believe that this interpretation is important for the purposes of the study of this monograph.
In the absence of a legislative definition, the definition of economic activity is analyzed and disclosed in educational and scientific literature. For example, O. M. Oleinik points out that “economic activity is one of the types of human economic activity, a form of participation of an individual in social production and a way of obtaining financial resources to ensure life” .
According to the position of E. P. Gubin and P. G. Lakhno, “economic activity is a process of reproduction of material and spiritual wealth, including production, distribution, exchange and consumption.” For modern economic activity in our country, according to scientists, it is characteristic that it: 1) follows from the existence of commodity production, the market organization of the economy; 2) is associated with the process of reproduction of material goods, that is, it is of a commercial nature; 3) is embodied in the creation (production) of products (goods), in the performance of work, the provision of services of a material nature and (or) their distribution and (or) their use (distribution, exchange, consumption).
Belarusian scientists S. S. Vabishchev and I. A. Mankovsky believe that “in the very general view economic activity is an activity of a value nature, aimed at creating tangible and intangible benefits.
S. V. Belykh, summarizing the judgments expressed in the literature, came to the conclusion that “economic activity is the economic activity of individuals, their associations for the production, distribution, redistribution and consumption of material goods within the framework of commodity-money exchange, the prerequisite of which is possession, use and disposal of these benefits to meet their own and other people's material needs” 1 .
Modern researchers in the field of economic law propose to define economic activity as a redistributive process of achieving efficiency at the stages of production, distribution, exchange and consumption of material and intangible goods (values, resources).
We believe that there are no contradictions in the above and other definitions of economic activity in the doctrine, they complement each other. We have also repeatedly noted that economic activity can be defined as a reproductive activity that combines such stages as production, distribution, exchange, consumption. It is important to note that each of the constituent elements of economic activity is considered broadly in this context. For example, the production process is associated with the creation of wealth, including the processes of organization and management.
At the same time, we generally agree with A. Ya. Kurbatov, who proposes, by the presence of a sign of professionalism, to qualify economic activity as active (for the production and sale of goods, works, services) and passive (placement Money in credit organizations, transfer of property for rent, for trust management, disposal of own property, including by contributing to the authorized capital of organizations, etc.).
At the same time, we will express the opinion that doctrinal judgments, approaches available in the normative legal and judicial acts is clearly not enough. There is a need for legislative consolidation of the concept under consideration, since the qualification of an activity as an economic one entails vesting the subject carrying it out with rights, imposing duties on it, establishing legal mechanisms for ensuring and protecting rights, as well as other legal consequences, the analysis of which is carried out in this monograph.
The Constitution of the Russian Federation establishes the principle economic freedom(market economy) in the state as the basis of the constitutional order. In fixing this principle, the liberal orientation of the Russian Constitution is visible, in contrast to the previous constitutions of the Soviet period. The most important aspects of the principle of economic freedom are formulated in Art. 8 of the Constitution of the Russian Federation:
1) the unity of the economic space and the free movement of goods, services and financial resources. This principle means that within the territory of the Russian Federation it is not allowed to establish any boundaries or other obstacles to the free movement of goods, services and financial resources (Article 74 of the Constitution of the Russian Federation). In accordance with Art. 74 of the Constitution of the Russian Federation, restrictions on the movement of goods and services may be introduced in accordance with federal law, if necessary to ensure security, protect life and health of people, protect nature and cultural values. Such restrictions are introduced in the event of, for example, an emergency environmental disaster in accordance with the Law "06 Environmental Protection". The introduction of restrictions on free movement financial services generally not allowed;
2) support for competition is one of the fundamental principles of a market economy. Support for competition is ensured by granting equal rights and opportunities to business entities in the sphere of civil circulation, as well as limiting monopolistic activity in the market. The regulation of the rights of entrepreneurs in Russia is carried out by the Civil Code, and the regulation of the restriction of monopolies is carried out by the Law of the Russian Federation of March 22, 1991 "On competition and restriction of monopolistic activity in commodity markets." The law, in particular, prohibits the actions of market-dominating entities (agreements between market-dominating entities) and actions by public authorities (including the adoption of acts) that limit the independence of economic entities, create discriminatory or favorable conditions for the activities of certain economic entities, if such acts or actions have or may result in restriction of competition and (or) infringement of the interests of other economic entities or citizens;
3) freedom of economic activity. This is a collective principle, meaning the use of a dispositive method in regulating the economic activities of entrepreneurs. Entrepreneurship is an activity carried out at one's own risk. The state and its bodies are not entitled to interfere in business activities, establish any plans, directives, etc. Regulation of business activities is carried out in two main ways: firstly, through civil legislation, which fixes the legal forms of economic relations, and, secondly , through financial legislation that establishes taxes on business income and other objects of taxation;
4) diversity and equal protection of forms of ownership. The Constitution of the Russian Federation, in contrast to previous constitutions, establishes the equality of all forms of ownership, of which there are three: private, state and municipal. The Constitution of the Russian Federation also allows for “other forms of ownership”, but there are no other types of ownership. In addition, state and municipal property can be combined under the name "public property" - property belonging to the whole people (state property) or the population of certain territories (municipal property), while the powers of the owner are exercised by state or municipal bodies. The subjects of private property can be individuals (citizens, foreigners) and legal entities (commercial and non-commercial organizations).
Equality of forms of ownership means their equal legal regime, equal content of property rights, regardless of its form. It is not allowed to establish any restrictions or favors for this or that form of ownership. Equal protection of all forms of ownership is expressed in their equal protection by the norms of civil, criminal, administrative law. In case of competition of subjects of the right of state and private property, preference for any of them is not allowed.
The Constitution of the Russian Federation (Article 9) specifically allocates land and other natural resources as objects of property rights. It is established that these objects can be on the right of ownership in all its forms. At the same time, Part 1 of Art. 9 implies the possibility of limiting the legal regime of ownership of land and natural objects. This norm establishes the condition for exercising ownership of these objects: land and other natural resources are used and protected in the Russian Federation as the basis of life and activity of the peoples living in the corresponding territory. As “peoples living in the respective territory”, the Constitution of the Russian Federation primarily has in mind the indigenous peoples who enjoy special protection of the Constitution of the Russian Federation (Article 69). Ownership of land and other natural resources is also limited by the need to refrain from damaging the environment (Article 36 of the Constitution of the Russian Federation).
1. The unity of the economic space, free movement of goods, services and financial resources, support for competition, and freedom of economic activity are guaranteed in the Russian Federation.
2. In the Russian Federation, private, state, municipal and other forms of ownership are recognized and protected in the same way.
1. The constitutional principles contained in this article form the foundations of the constitutional economic order. These principles underlie a large set of constitutional norms, united by logical and legal ties and, therefore, representing a certain unity, a subsystem of norms built using the concept of "economic constitution". Through the efforts of economists and lawyers in Germany, France, Spain, Italy, the USA, Portugal, a theoretical construction has been created, built into the system of constitutional law, which tries to explain how the constitution regulates economic relations * (22). It made it possible to link into a single whole such heterogeneous and contradictory phenomena as freedom of economic activity and state intervention in the economic sphere. Associated with the concept of a welfare state, the economic constitution becomes the constitutional and legal basis of a socially oriented market economy.
As a subsystem of constitutional and legal norms, the economic constitution covers:
1) the principles of the foundations of the constitutional system on freedom of economic activity, a single economic space, diversity and equality of different forms of ownership, protection of competition (Article 8), on the social nature of the state (Article 7);
2) constitutional norms on fundamental economic rights and freedoms and fundamental rights of economic and constitutional significance, as well as on constitutional guarantees of entrepreneurship (Article 7, part 2 of article 34, part 1 of article 74, part 2 of art. 75); on the meaning of universally recognized norms and principles international law and the norms contained in the international treaties of the Russian Federation (Article 15);
3) norms establishing constitutional economic public order: a) constitutional principles of state regulation of economic activity; b) norms on the possibility of restricting fundamental economic rights; c) norms on the powers of federal and regional government bodies in the field of legal regulation of entrepreneurship. The general theme unites the provisions of the Constitution relating to finance and taxes. Constitutional financial law is an independent part of the "economic constitution".
The principle of the unity of the economic space is of particular importance in federal states, the subjects of which have their own legislation (Article 5 of the Constitution). It is also related to the category of "national unity" used in the preamble to the Constitution. A number of constitutional provisions in Ch. 3 of the Constitution "Federal structure" establish guarantees of the economic integrity of the federal state.
The Constitutional Court of the Russian Federation applied the principle of the unity of the economic space to justify tax centralization in the Russian Federation. In the Resolution of the Constitutional Court of the Russian Federation of March 21, 1997 N 5-P * (23), concerning the provisions of the Law of the Russian Federation of December 27, 1991 N 2118-1 "On the fundamentals tax system in the Russian Federation" (as amended on November 11, 2003), contains an important legal position, according to which the principles of taxation and fees in the part directly predetermined by the provisions of the Constitution, in accordance with paragraph "a" of Article 71, are under the jurisdiction RF These include: ensuring a unified financial policy, which includes a unified tax policy, the unity of the tax system, equal to tax burden and the establishment of tax exemptions only on the basis of the law.
The principle of a unified financial policy is enshrined in a number of articles of the Constitution, primarily in its Art. 114 (p. "b" part 1), according to which the Government ensures the implementation of a unified financial, credit and monetary policy.
These provisions develop one of the foundations of the constitutional system - the principle of the unity of the economic space (part 1 of article 8), which means, among other things, that the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods is not allowed on the territory of the Russian Federation , services and financial resources (part 1 of article 74), and restrictions on the movement of goods and services may be introduced in accordance with federal law, if necessary to ensure safety, protect human life and health, protect nature and cultural values (part 2 article 74).
It follows from the above constitutional norms, in particular, that the establishment of taxes that violates the unity of the economic space of the Russian Federation is not allowed. From this point of view, both the introduction of regional taxes, which can directly or indirectly restrict the consolidated movement of goods, services, financial resources within the single economic space, and the introduction of regional taxes, which allows the formation of the budgets of some territories at the expense of tax revenue other territories or transfer the payment of taxes to taxpayers in other regions.
The unity of the economic space and, consequently, the unity of the tax system is ensured by a unified system of federal tax authorities. Tax authorities, as related to the federal economic services, in accordance with the Constitution, are under the jurisdiction of the Russian Federation (clause "g" of article 71); tax authorities in the subjects of the Russian Federation are territorial bodies federal bodies executive power (part 1 of article 78), and not by the bodies of the constituent entities of the Russian Federation.
The Constitutional Court of the Russian Federation in its Decree of March 21, 1997 N 5-P noted that the identification of the constitutional meaning of the right guaranteed by the Constitution to state authorities of the constituent entities of the Russian Federation to establish taxes is possible only taking into account the fundamental rights of man and citizen, enshrined in Art. 34 and 35 of the Constitution, as well as the constitutional principle of the unity of the economic space. Based on the need to achieve a balance between these constitutional values, tax policy seeks to unify tax exemptions. This goal is also served by such a general principle of taxation and fees as an exhaustive list of regional taxes that can be established by state authorities of the constituent entities of the Russian Federation, and the restrictions arising from it on the introduction of additional taxes and tax payments.
Justified by the constitutional principle of the unity of the economic space and formulated by the Court, the principle of tax centralization, by virtue of which the constituent entities of the Russian Federation are not entitled to impose additional taxes, underlies the adopted Tax Code (Articles 12-14). In the Determination of 05.02.1998 N 22-O * (24), the Constitutional Court of the Russian Federation indicated that on the basis of the legal position developed in the Resolution of 03.21.1997 N 5-P, local governments are also not entitled to establish additional taxes and fees, not provided by federal law. A different understanding of the meaning contained in Part 1 of Art. 132 of the Constitution, the concept of "establishment of local taxes and fees" would contradict the actual content of the Constitution (see Resolution of the Constitutional Court of the Russian Federation of June 17, 2004 N 12-P on the case of checking the constitutionality of a number of articles of the BC * (25)).
The principle of the unity of the economic space was used by the Constitutional Court to substantiate the requirements for the unity of financial policy: "from the Constitution of the Russian Federation, namely from the requirements of the unity of financial policy and financial regulation enshrined in it, the establishment of the legal foundations of the single market, the unity of the economic space, developed in federal laws, it follows that the operation budget system Russian Federation aims to guarantee the foundations of the constitutional system, financial security rights and freedoms of man and citizen, which, in turn, predetermines the constitutional requirements for the proper regulation of the budgetary and legal status of the constituent entities of the Russian Federation and municipalities as participants in budgetary relations, including servicing budget accounts "* (26). Proceeding from principle of the unity of the economic space, the Constitutional Court came to the conclusion that the subjects of the Russian Federation are not deprived of the authority to establish administrative responsibility, including in certain areas of financial and credit regulation(Determination of 04/08/2004 N 137-O * (27)). In the Decree of the Constitutional Court of the Russian Federation of December 10, 1997 N 19-P "On the case of checking the constitutionality of a number of provisions of the Charter (Basic Law) of the Tambov Region" * (28) with reference to paragraph "g" of Art. 71 of the Constitution, it is noted that the principle of the unity of the economic space enshrined in it (part 1 of article 8) predetermines the implementation of a single financial policy and, accordingly, the existence of a single financial system, including budgetary and tax; at the same time, state authorities of the subjects of the Russian Federation participate in financial, currency and credit relations of federal significance, to the extent and insofar as this is provided for and allowed by federal laws, other legal acts federal government bodies; the assignment of financial, currency, and credit regulation to the jurisdiction of the Russian Federation does not prevent the state authorities of a constituent entity of the Russian Federation, within their powers, from taking measures to mobilize and spend their own financial resources.
The Constitutional Court of the Russian Federation also explained that, specifying the obligation of the state to guarantee the unity of the economic space, the Constitution (clause "g" of Article 71) refers the establishment of the legal foundations of the single market to the jurisdiction of the Russian Federation, since without ensuring the priority, direct action of laws that enshrine these legal foundations (CC, laws in the field of antimonopoly policy and protection of competition, pricing, financial, currency, credit, customs regulation, etc.), freedom of economic activity cannot be realized on the territory of the entire state (see Decree of 04.03.1997 N 4 -P * (29)).
The constitutional principle of free movement of goods, services and financial resources, as interpreted by the Constitutional Court, underlies a special constitutional and legal regime of stability economic turnover which is based on the principle of maintaining confidence in the law.
Paragraph 2, part 1, art. 9 of the Federal Law of 14.06.1995 N 88-FZ "On state support Small Business in the Russian Federation" (as amended on February 2, 2006) provided that if, as a result of a change tax legislation If less favorable conditions are created for small businesses compared to the previously existing conditions, then during the first four years of their activity, these entities are subject to taxation in the same manner that was in force at the time of their state registration.
The provision of the Federal Law of July 31, 1998 N 148-FZ "On a single tax on imputed income for certain types of activities" (as amended on July 24, 2002) on the inadmissibility of further application of par. 2 hours 1 tbsp. 9 of the Federal Law "On State Support for Small Business in the Russian Federation" cannot be retroactive and does not apply to ongoing legal relations that arose before the day of the official publication of the new regulation, including the relevant normative act legislative (representative) body of the subject of the Federation on the introduction of a single tax on its territory. Such an interpretation of this provision is due to the constitutional and legal regime of the stability of business conditions, derived from Part 1 of Art. 8, part 1, art. 34 and Art. 57 of the Constitution, noted the Constitutional Court in its Determination of 01.07.1999 N 111-O * (30).
Resolution of the Constitutional Court of the Russian Federation of February 23, 1999 N 4-P "On the case of checking the constitutionality of the provision of part two of Article 29 of the Federal Law of February 3, 1996 "On banks and banking"in connection with the complaints of citizens O.Yu. Veselyashkin, A.Yu. Veselyashkin and N.P. Nazarenko" * (31) allows us to deepen our understanding of the content of the constitutional principle of stability of economic turnover, derived from the principle of free movement of goods, money and financial resources (Part 1, Article 8 of the Constitution).
By virtue of this principle, the state is obliged to provide conditions for a stable civil circulation and use legal regulation for this. State regulation market relations is expressed in the establishment of the procedure for the creation and activities of their participants.
Legal regulation market should not violate the basic principles of a market economy: equality of participants in the turnover, freedom of acceptance economic decisions and independent responsibility for their results, responsibility for the harm caused.
The relationship between depositors and the bank is part of the civil turnover. The stability of these relations, in the opinion expressed by the Court, should be ensured through the creation of public law, imperative norms that restrict the formal freedom of contract.
The principle of free movement of financial resources can be considered as an independent legal phenomenon. A. A. Efremov draws attention to its dual nature: as guarantees (conditions) for the movement of goods and services, since their market turnover is possible only with simultaneous money circulation; and as an independent principle of legal regulation of relations arising from the circulation of financial resources outside the circulation of goods and services * (32).
This constitutional principle underlies the legal regulation of such a segment of the single market, which is financial market, including the market for issuance securities.
State-guaranteed support for competition is a constitutional and legal instrument for creating a favorable economic environment. For these purposes, state intervention in the sphere of economic relations is justified. The state, bearing in mind the provision of Part 2 of Art. 34 of the Constitution on the inadmissibility of economic activities aimed at monopolization and unfair competition, should, through the adoption of laws on competition, support precisely fair competition between business entities, establishing the necessary restrictions (limits) on the freedom of economic activity. Thus, the constitutional principle of supporting competition plays the role of restrictions on this freedom contained in the Constitution itself.
Economic freedom, within the meaning of the Constitution, presupposes, first of all, freedom of entrepreneurship. Freedom of entrepreneurial activity is a universal (integrated) principle of constitutional law, which combines several relatively independent principles of legal regulation of relations in the field of entrepreneurial activity (the principle of freedom of contract, the generally permissible principle, the principle of freedom of competition, etc.).
The Russian constitutional and legal model of relations between public authorities and business is built on the principle of economic freedom. It is based on the recognition of the objectively existing limits of regulation of entrepreneurial activity by public authorities.
The constitutional principle of freedom of economic activity, enshrined in the foundations of the constitutional system (Article 8 of the Constitution), is based on norms that enshrine the rights inherent in the society in which it operates market type economy. They can be described as the main economic rights. These include:
The right to choose the type of activity or occupation - means freedom economic choice: be either an entrepreneur-employer or an employee (art. 37);
The right to move freely, to choose a place of stay and residence - means the freedom of the labor market (Article 27);
The right to association - implies the corresponding right for joint economic activity, and therefore, the freedom to choose the organizational and legal forms of entrepreneurial activity and the formation of various business structures in a notification procedure (part 1 of article 30);
The right to own property, own, use and dispose of it both individually and jointly with other persons (part 2 of article 35), freedom to own, use and dispose of land and other natural resources (part 2 of article 36), use of property for the purposes of entrepreneurial activity (part 1 of article 34) - means the freedom to form the property base of entrepreneurship, the use of property, the freedom to sell manufactured goods on the market, including the right to freedom of contract;
The right to protection from monopoly and unfair competition (Article 34) - implies freedom of competition.
The normative content of freedom of economic activity as a constitutional principle includes, as evidenced by the practice of the Constitutional Court of the Russian Federation, first of all, making economic decisions free from any influence.
The constitutional principle of freedom of economic activity served as the basis for the adoption by the Constitutional Court of the Russian Federation of Decree No. 21-P of December 23, 1997 "On the case of checking the constitutionality of paragraph 2 of Article 855 of the Civil Code of the Russian Federation and part six of Article 15 of the Law of the Russian Federation "On the fundamentals of the tax system in the Russian Federation" in connection with the request of the Presidium Supreme Court Russian Federation "* (33).
In the Decree of the Constitutional Court of the Russian Federation of January 30, 2009 N 1 in the case of checking the constitutionality of the provisions of paragraphs 2, 3 and 4 of Art. 13 and par. second paragraph 1.1 of Art. 14 of the Federal Law "On the turnover of agricultural land" in connection with the complaint of citizen L.G. Pogodina, it is noted that the main principles listed in paragraph 1 of Art. 1 of the Civil Code of the Russian Federation, have constitutional significance, that is, they are constitutionally significant principles, which, therefore, can be considered as criteria in the exercise of judicial constitutional control.
The rights of possession, use and disposal of property, as well as freedom of entrepreneurial activity and freedom of contracts may be restricted by federal law, but only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (part 3 of article 55 of the Constitution), which corresponds to the provisions of art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, by regulating entrepreneurial activity through civil legislation commercial organizations, including joint-stock companies, the federal legislator in accordance with paragraph "c" and "o" Art. 71 of the Constitution is obliged to take into account that, within the meaning of the provisions of Part 3 of Art. 55 of the Constitution in conjunction with its Art. 8, 17, 34 and 35, possible restrictions by federal law on the rights of possession, use and disposal of property, as well as freedom of entrepreneurial activity and freedom of contract, based on the general principles of law, must meet the requirements of justice, be adequate, proportionate, proportionate and necessary for constitutional protection significant values, including the rights and legitimate interests of others.
The Resolution of the Constitutional Court of the Russian Federation of February 23, 1999 N 4-P explains that from the meaning of these constitutional norms on freedom in economic sphere(Art. 9, 34 and 35) follows the constitutional recognition of freedom of contract as one of the state-guaranteed freedoms of man and citizen, which is proclaimed by the Civil Code as one of the basic principles of civil legislation (clause 1, article 1). At the same time, the constitutional freedom of contract is not absolute, should not lead to the denial or derogation of other generally recognized rights and freedoms (part 1 of article 55 of the Constitution) and may be limited by federal law, but only to the extent necessary to protect the foundations of the constitutional order, the rights and legitimate interests of other persons (part 3 of article 55 of the Constitution).
2. The protection of various forms of ownership is one of the main functions of the state. Its content varies depending on the nature of the economic system. In the Soviet period of history, the priority constitutional value was the public type of property, in connection with which public property was protected by the state as a priority. The current Constitution does not consider any form of ownership as the main one and, as a result, recognizes and equally protects various forms of ownership. The variety of forms of ownership characterizes the foundations of the economic system as a market one.
The state should develop economic policy, embody it in legislation based on the inadmissibility of creating unjustified advantages for any organizational and legal forms of entrepreneurial activity. In the field of criminal law, the constitutional principle under consideration found its manifestation in the unified criminal law protection of all forms of ownership, replacing the increased protection of state property that previously existed in the former criminal law.
Under the direct influence of the constitutional principle of recognition and protection equally different forms ownership is a system of legal norms that determine the participation of the Russian Federation, its constituent entities and municipalities in relations regulated by civil law (Chapter 5 of the Civil Code), as well as administrative-legal relations in nature related to the provision of state subsidies to inefficient enterprises.
The considered constitutional principle is designed to correct the relationship between government and business. The content of this principle imposes additional restrictions on the authorities, on the state. Power must be equidistant from various business structures and communities, otherwise unacceptable models of relations between government and business arise, fraught with conflicts of interest, unfair competition, and unequal protection of various organizational and legal forms of entrepreneurial activity. Violations of the principle of equal protection are cases when administrative levers are used to create preferential terms for conducting business activities by business structures affiliated with the government. In addition, this principle introduces certain restrictions for the state on the degree of intensity of "conducting" private enterprises.
The principle under consideration was taken as the basis for the adoption of a number of decisions of the Constitutional Court of the Russian Federation, in particular, the Ruling of February 8, 2001 N 33-O * (35) on the complaints of several JSCs, in which the constitutionality of the provision of paragraph 8 of part 1 of Art. 33 of the Labor Code of the Russian Federation, included in the Code in the pre-constitutional period. According to this provision, an employment contract (contract) concluded for an indefinite period, as well as a fixed-term employment contract (contract) before its expiration may be terminated at the initiative of the administration of an enterprise, institution, organization in the event that an employee commits theft at the place of work (including small) state or public property established by a court verdict that has entered into legal force or a decision of an authority whose competence includes the imposition of an administrative penalty or the application of measures of public influence.
The Constitutional Court came to the conclusion that the principle of equal protection should apply to all types of property enshrined in the Constitution to the same extent as it applied to state and public property prior to the entry into force of the Constitution. Otherwise, it would mean that the right of the employer to terminate the employment contract with the employee is made dependent on the form of ownership of the stolen property of the enterprise, which is not consistent with the provisions of the Constitution.
Dynamics of legal regulation of public property relations in last years largely due to new ideas about the constitutional principle of recognition and protection equally of all forms of ownership. New "reading" by the legislator this principle means that state property began to be considered in the unity of federal property and property of the constituent entities of the Russian Federation. It is considered by the legislator as a single property complex of the federal state as a whole, as the material basis of the Russian state, which, according to the authors of the new interpretation, should correspond to the state integrity of the Russian Federation and reinforce the unity of the state power system. From our point of view, the authorship of this interpretation of the constitutional principle belongs to the developers of the BC and the legislation on the delimitation of powers. In their opinion, the constitutional principle enshrined in Part 2 of Art. 8, should also predetermine the specifics of the legal regulation of public property, as well as determine the limits of the rights of subjects of the Russian Federation and municipalities as public owners. In particular, the protection of the property of the constituent entities of the Russian Federation cannot be considered without taking into account the requirements of the Constitution and federal legislation, which express and enshrine in the form of general instructions the general will of the state as a whole regarding the functioning and protection of state property.
Ownership rights to the funds of regional and local budgets in accordance with these views cannot mean complete freedom of economic activity of the relevant authorities of the constituent entities of the Russian Federation, exercising their powers on behalf of public owners.
In our opinion, these supposedly new views are a reminiscence of our earlier ideas about single fund state property.
The new interpretation of the constitutional principle of part 2 of the commented article, accepted by the federal legislator, led to a distortion in non-core laws of the basic legal principles that underlie the legal regulation of property relations and enshrined in the Civil Code. Federal Law No. 95-FZ of 04.07.2003 "On Amendments and Additions to the Federal Law "On general principles organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation" (as amended on July 22, 2008) very clearly defined the property (its types) that may be owned by the constituent entities of the Russian Federation. From the content of Article 26.11 of this Law it follows that Subjects of the Russian Federation may only own property that is necessary for the exercise of their powers by state authorities at the regional level.In the sense of this article, any other property cannot be owned by subjects of the Russian Federation and is subject to alienation in the manner and within the time limits established by the legislation on privatization. With regard to municipal property, exactly the same approach was chosen.Federal Law N 131-FZ defined an exhaustive list of property that may be owned by municipalities. local importance, for the solution of which it is used, by separate state powers, for the implementation of which it is transferred, and by the powers, the exercise of which is provided for by federal laws.
To what extent does the approach chosen by the legislator correspond to the constitutional principle of equality of all forms of ownership? Don't these norms of the two federal laws put private property in a dominant position in relation to public property, since they exclude the right of public owners to own any property that is not withdrawn from civil circulation and not limited in circulation? How realistic and, most importantly, is it expedient to have lists of types of property necessary for the exercise of the powers specified in paragraph 17 of Art. 1 of the Federal Law of July 4, 2003 N 95-FZ, which must be established by the laws of the constituent entities of the Russian Federation no later than January 1, 2005?
A new approach, according to which not any property can be in the public ownership of the subjects of the Russian Federation and municipalities, but only such that directly serves as material base of the powers that are assigned to them, means fixing in a non-core law, which is not part of civil law, the principle of a strictly targeted nature state property, i.e. the impossibility for public owners to be owners of certain types of property, which, at the same time, is not withdrawn from circulation. This principle is unknown to the current civil legislation, which contains rules on “the specifics of the acquisition and termination of the right of ownership of property, possession, use and disposal of it”, depending on whether it is in private or public ownership (paragraph 2 of article 212, clause 1 of article 214 of the Civil Code), i.e. about the peculiarities of the procedure for exercising the right of ownership, but not about the possibilities of limiting the object composition of property owned by the owners.
In paragraph 4 of Art. 212 of the Civil Code establishes a norm arising from the constitutional principle, according to which "the rights of all owners are protected equally." We believe that this norm is included in the normative content of the constitutional principle of the inviolability of property, which, unfortunately, has not yet been fully revealed either by science or practice.
The question arises of the extent to which the principle of inviolability of property should format the legal regulation of public property relations. From our point of view, the provisions enshrined in the Civil Code follow from this constitutional principle, according to which there is one single property right, which implies that all subjects of law recognized as owners have the same powers, and the state must ensure equal protection of the rights of all owners, including by refusing unjustified restrictions on the object composition of property that may belong to public owners.
Subjects of the Russian Federation and municipalities are full owners. Only property relations based on equality can arise between such legal entities. Otherwise, when the federal law allows the "redistribution" of the property of the constituent entities of the Russian Federation in connection with the ongoing delimitation of powers in the federal system, there is a violation of the requirements, imperatives, prohibitions that form the content of the constitutional principle of the inviolability of property.
In the Ruling of the Constitutional Court of the Russian Federation of 02.11.2006 N 540-O "At the request of the Government of the Samara Region to verify the constitutionality of Article 1, parts six and eight of Article 2 of the Federal Law "On Amendments and Additions to the Federal Law" On the General Principles of Organizing Legislative (Representative) bodies of state power of the constituent entities of the Russian Federation" and Article 50 of the Federal Law "On the General Principles of Organization of Local Self-Government in the Russian Federation" * (36) contains an important legal position based on the interpretation of Part 2 of Art. 8 of the Constitution, according to which the list of property in Art. 50 of Federal Law N 131-FZ does not prevent municipalities use the methods of raising funds established by law to form own income local budgets, including having property rights and receive subsidies from other budgets to resolve issues of local importance, as well as receive subventions for the exercise by local governments of certain state powers, and therefore cannot be considered as not allowing the presence in municipal property of other property with such a designated purpose, i.e. cannot be considered as a closed list of property.
