"V Russian Federation guaranteed unity
economic space, free movement of goods,
services and financial resources, support for competition, freedom
Constitution of the Russian Federation, article 8, part 1.
Economic freedom is a very broad concept and for this reason we will not consider it in its entirety and completeness, but will focus only on the "freedom" of commercial banks to set the interest rate on deposits for individuals, because at present the banking community is experiencing certain pressure on this part from the regulator - the Bank of Russia.
First of all, I would like to point out that the author is well aware of the content of Part 4 of Article 4. federal law No. 174-ФЗ dated October 13, 2008 "On Amendments to Article 11 of the Federal Law" On Insurance of Individual Deposits in Banks of the Russian Federation "and some others legislative acts Of the Russian Federation ", according to which, from the date of entry into force of the said Federal Law and until December 31, 2009, inclusive, in the event of failure to comply with the Bank of Russia instructions on the elimination of violations identified in the activities of a credit institution, as well as if these violations or committed by a credit institution Bank operations or transactions created a real threat to the interests of its creditors (depositors), the Bank of Russia has the right to impose restrictions on the amount of the interest rate that the credit institution defines in bank deposit agreements concluded (extended) during the period of the restriction, in the form of the maximum value of the interest rate (but not lower two-thirds of the Bank of Russia refinancing rate on bank deposits in rubles and not lower than the LIBOR rate on bank deposits in foreign currency as of the date of the restriction), for a period of up to one year. For the purposes of this provision, the calculation of the interest rate includes, along with interest, any non-interest payments that the credit institution pays to individual depositors.
We are not going to discuss now the possibility of extending until December 31, 2010 the right of the Bank of Russia to limit the interest rate in bank deposit agreements - this information is exaggerated by the media.
Another thing is interesting - if the legislator cares so much about the interests of the bank's creditors (depositors), then why did he not grant the Bank of Russia the right to limit the interest rate under bank deposit agreements forever, and not only for a period up to December 31, 2009 inclusive?
One gets the impression that if the legislator provides for this measure as a temporary one, then, most likely, he himself understands that the specified legal norm gives off “voluntarism” and is far from a market one.
Moreover, if we recall the times of ten years ago - the author means the 1998 crisis and the next one or two years - we will see that, for example, in February 2000, the refinancing rate set by the Bank of Russia was 45%. Accordingly, the interest on bank deposits significantly exceeded the current notorious 17-18%, which the Bank of Russia was so up against. And after all, what is surprising - the banking system as a whole survived (except for several "unsinkable aircraft carriers" in the form of oligarchic banks, such as SBS-AGRO, Inkombank and others like them), despite high stakes interest on deposits that existed at the beginning of the century. And no one said that since banks attract deposits at such interest rates, it means that they are not going to return them to depositors.
We find interesting information for discussing this problem in the notorious letter of the Central Bank of the Russian Federation (CBR) dated July 29, 2009 No. 93-T “On working with banks establishing interest rates on deposits of individuals at a level higher than the market level ”. This letter states that the analysis of information on the level of interest rates on deposits of individuals indicates an increase in the level of these rates, caused by an increase in the interest of credit institutions in deposits of the population as a source of resources. At the same time, the leadership of the Central Bank of the Russian Federation complains that the territorial offices of the Bank of Russia
The reasons that led to their increase are not studied,
The dynamics of the volume of attracted funds in deposits for individual products is not analyzed,
The real sources and sufficiency of the interest margin to ensure the profitability of banks are not established.
In this regard, the question arises of how it is possible, without having studied the economic feasibility of raising funds by banks at increased interest rates, the adequacy of the interest margin to ensure the profitable activities of the bank, the level of the bank's liquidity in terms of ensuring the fulfillment of obligations, and also not assessing the reality of the formation of banks' income in the form of interest on loans and other income-generating assets, to arrange a persecution of higher interest rates on deposits?
A skeptical attitude is also caused by the methodological recommendation for determining the average market rate as two percentage points higher than the average for 10 the largest banks magnitude maximum rates in rubles, which credit institutions paid to depositors - individuals. Is it possible to compare the ten largest Russian banks with access to funds state support, to cheaper foreign loans and privates Russian banks who do not have access to similar sources?
The concern of both the legislator and the Bank of Russia with the interests of depositors is quite understandable, but why should the problem be solved by violating the basic principles and norms of civil circulation?
For the reader not experienced in legal issues, let us explain that in civil law one of the basic principles is the principle of freedom of contract, which is proclaimed in article 421 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation):
"Article 421. Freedom of contract
1. Citizens and legal entities are free to conclude an agreement.
Compulsion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by this Code, law or a voluntarily accepted obligation.
2. The parties may conclude an agreement, both provided for and not provided for by law or other legal acts.
3. The parties may conclude an agreement containing elements of various agreements provided for by law or other legal acts (mixed agreement). The rules on contracts, the elements of which are contained in the mixed contract, apply to the relations of the parties to a mixed contract in the relevant parts, unless otherwise follows from the agreement of the parties or the essence of the mixed contract.
4. The terms of the contract are determined at the discretion of the parties, unless the content of the relevant condition is prescribed by law or other legal acts (Article 422).
In cases where the condition of the contract is provided for by the norm, which is applied insofar as the agreement of the parties does not establish otherwise (dispositive norm), the parties may by their agreement exclude its application or establish a condition different from that provided for in it. In the absence of such an agreement, the term of the contract is determined by a dispositive rule.
5. If the term of the contract is not determined by the parties or by a discretionary rule, the relevant terms are determined by the customs of business, applicable to the relationship of the parties.
Article 422. Treaty and Law
1. The contract must comply with the rules binding on the parties, established by law and other legal acts (peremptory norms) in force at the time of its conclusion.
2. If, after the conclusion of the agreement, a law is adopted that establishes rules binding on the parties other than those that were in force at the conclusion of the agreement, the terms of the concluded agreement remain in force, except for cases when the law establishes that its effect applies to relations arising from previously concluded contracts ".
Pay special attention to paragraph 4 of Article 421 of the Civil Code of the Russian Federation - the terms of the agreement (in particular, the interest rate under the bank deposit agreement) are determined at the discretion of the parties, and not at the discretion of the Bank of Russia (or its regional offices).
Of course, the Bank of Russia, in accordance with the law "On The central bank Of the Russian Federation (Bank of Russia) "has the right to issue in the form of instructions, regulations and instructions on issues within its competence by the said law and other federal laws regulations mandatory for federal government bodies, government bodies of the constituent entities of the Russian Federation and local government bodies, all legal entities and individuals. But the fact of the matter is that the Bank of Russia has not yet issued a normative act directly formulating the content of the condition on the interest rate for deposit agreements with individuals.
The aforementioned letter of the Bank of Russia No. 93-T recommending the territorial offices to send written recommendations to reduce the non-market value of the interest rate (interest rates), while indicating the emergence of a real threat to the stability of the bank and the interests of its creditors (depositors), and to name specific terms, during which interest rates must be reduced is not a normative act, since it is neither an indication, nor an instruction, nor a regulation, and therefore plays only the role of a "garden scarecrow" for commercial banks - it is considered that if the Bank of Russia "shows its teeth" commercial banks, this will be enough. And this is really so - hardly any of the commercial banks will enter into open confrontation with the Central Bank of the Russian Federation.
Look, what an interesting situation turns out in this regard: formally, that is, at the level of a regulatory act, the Bank of Russia did not restrict the freedom of commercial banks to set the interest rate on deposits of individuals, although it had the right to formulate a restrictive condition regarding the interest rate under the agreement a bank deposit, in a regulatory act (this is exactly what is required by paragraph 4 of Article 421 of the Civil Code of the Russian Federation). In other words, a funny precedent has emerged when civil relations begin to be regulated not by normative acts per se, but essentially by “threats and intimidation” of participants in civil turnover from the authorities, in this case directly from the regulator.
As for the instruction to the territorial offices of the Bank of Russia to immediately apply the restriction provided for in Part 4 of Article 4 of Federal Law No. 174-FZ in the event that a commercial bank does not take action to reduce the level of interest rates to the market level, then, I think, it is incorrect, - according to at least from the point of view of Article 421 of the Civil Code of the Russian Federation, because the content of the terms of the bank deposit agreement with an individual, limiting the interest rate on the deposit, should be determined at the level of “law or other legal act”. And another legal act can be issued only by the Bank of Russia itself, but by no means by its territorial bodies.
It can be recognized that part 4 of Article 4 of Federal Law No. 174-FZ grants the Bank of Russia the right to impose restrictions on the interest rate that the credit institution determines in bank deposit agreements concluded (extended) during the period of the restriction, in the form of a maximum interest rate rates (but not lower than two-thirds of the Bank of Russia refinancing rate on bank deposits in rubles and not lower than the LIBOR rate on bank deposits in foreign currency as of the date of the restriction), for a period of up to one year.
But does this mean that the restriction, in the form of the maximum value of the interest rate, should be introduced - contrary to the requirement of Article 421 of the Civil Code of the Russian Federation - outside the legal act? Indeed, part 4 of Article 4 of Federal Law No. 174-FZ itself does not establish the maximum value of the interest rate; the only thing she says is that the maximum value of the interest rate cannot be lower than two-thirds of the Bank of Russia refinancing rate for bank deposits in rubles or lower than the LIBOR rate for bank deposits in foreign currency as of the date of the restriction.
Therefore, we cannot admit that Part 4 of Article 4 of Federal Law No. 174-FZ formulates the content of a condition limiting the maximum interest rate for a bank deposit agreement with an individual; it only gives the Bank of Russia the right to impose such a restriction.
At the same time, it is easy to understand that the Bank of Russia does not really want to fix the content of the condition limiting the maximum interest rate on a bank deposit with an individual in a normative act, because it would like to apply such a restrictive measure only selectively - to the most "obstinate" banks who do not understand the hints and recommendations. However, if you strictly adhere to the letter of the law, then, without adopting an appropriate regulatory act, the Bank of Russia cannot limit the maximum interest rates of commercial banks on deposits of individuals without sinning against Article 421 of the Civil Code of the Russian Federation.
In addition, there is one more delicate point. All this confusion around interest rates on deposits of individuals does not look very nice from the point of view of Part 1 of Article 8 (it is included in the epigraph of this material), as well as Article 74 of the Constitution of the Russian Federation.
Article 74 of the Constitution of the Russian Federation establishes that:
"1. On the territory of the Russian Federation, the establishment of customs borders, duties, fees and any other obstacles for the free movement of goods, services and financial resources is not allowed.
2. Restrictions on the movement of goods and services may be introduced in accordance with federal law, if it is necessary to ensure safety, protect the life and health of people, protect nature and cultural values ”.
Please note that Article 74 allows the possibility of limiting the movement of only goods and services, but not financial resources, while the possibility of limiting the maximum interest rate under bank deposit agreements of individuals can be regarded as limiting the free movement of funds in the direction of commercial banks, which offer higher interest rates.
But even restrictions on the movement of goods and services are introduced only for the purpose of ensuring safety, protecting human life and health, protecting nature and cultural values. It would be a stretch to put care of the interests of depositors under this exhaustive list, although everything is possible with us, including that.
In addition, if you look at the situation that has arisen through the prism of the federal law "On the Protection of Competition" - and in this case, this law is really attracted by the ears, since we cannot state that banks that set interest rates on deposits of individuals in the amount of 17-18 percent, occupy a dominant position, then it turns out that the methodology for determining an unreasonably high and unreasonably low price of a credit institution's services is approved, albeit in agreement with The central bank Of the Russian Federation, the antimonopoly authority, and not the Bank of Russia itself. Therefore, persecution of high interest rates on individual deposits could be expected not so much from the Bank of Russia as from the antimonopoly authority, which at one time rather actively intervened in the activities of credit organizations that provide, for example, consumer lending services to citizens. (Let me remind you that an unreasonably high price of a financial service or an unreasonably low price of a financial service is the price of a financial service or financial services that is set by a dominant financial institution and that differs significantly from the competitive price of a financial service, and / or makes it difficult to access the product market others financial institutions, and / or has a negative impact on competition).
In connection with all of the above, the question arises whether it would be more constructive to solve the problem with high interest rates on deposits of individuals in a different way - for example, by changing the procedure for calculating and paying insurance premiums in the federal law "On insurance of deposits of individuals in banks of the Russian Federation" ? If it is recognized that a bank that sets higher interest rates on bank deposit agreements with individuals assumes a higher risk compared to the rest of the banking community, then it would probably be fair to make the calculation of insurance premiums dependent not only on the average chronological settlement period daily balance sheet balances on accounts for accounting for deposits, with the exception of funds in deposits that are not subject to insurance, but also from the weighted average interest rate in effect in the bank in the last settlement period.
And then the persecution of interest rates on bank deposits of individuals looks somehow ugly against the background of the fact that the legislator himself makes certain concessions to the federal law "On insurance of deposits of individuals in banks of the Russian Federation" in terms of banks' compliance with the requirements for participation in the insurance system deposits. The author means the suspension until December 31, 2010 inclusive of the effect of paragraph 2 of part 3, paragraphs 1 and 3 of part 3.1 of Article 48 of the said law.
For those who do not remember what is said in the named points, I will remind you.
Clause 2 of Part 3 of Article 48 of the Law "On Insurance of Individual Deposits in Banks of the Russian Federation" states that a bank does not meet the requirements for participation in the deposit insurance system if it does not fulfill the same mandatory standard from among established by the Bank Russia. (Failure to comply with a mandatory standard in the reporting month is its violation in aggregate for six or more business days during a given month).
As for part 3.1. Article 48 of the Federal Law "On Insurance of Individual Deposits in Banks of the Russian Federation", then it establishes that the financial stability of the bank must be recognized by the Bank of Russia as insufficient, in particular, in cases where the bank:
Has a rating of "unsatisfactory" for the same group of indicators: capital assessment, which includes indicators for assessing the adequacy and quality of capital (a), asset assessment, including indicators of the quality of debt on loans and other assets, the amount of provisions for losses on loans and other assets, the degree of risk concentration by assets, including the amount of credit risks for shareholders (participants) and insiders (b), liquidity assessment, including indicators of asset liquidity, liquidity and structure of liabilities, total bank liquidity, risk for large creditors and depositors (c) for six reporting monthly dates in a row or for two reporting quarter dates in a row (this is paragraph 1) and
It is rated "unsatisfactory" for a group of indicators for assessing profitability, which includes indicators of return on assets and capital, the structure of income and expenses, profitability of certain types of operations and the bank as a whole for two reporting quarterly dates in a row (this is paragraph 3).
If you take care of the interests of individual depositors, then it is reasonable to assume that it is necessary to take care of it consistently, and not selectively: in some ways giving indulgences, but in some “tightening the screws”. Otherwise, the public may suspect that a campaign is being carried out under the slogan of caring for the interests of individual depositors, pursuing completely different goals.
Constitution of the Russian Federation, article 8, part 1. establishes and guarantees the unity of the economic space of Russia. This concept covers the unity of the market, i.e. free movement of goods, services and financial resources, support for competition, freedom of economic activity throughout the country, as well as free movement of labor (i.e., the unity of the labor market, because labor to a large extent still remains a commodity, although its legal regulation, conditions, etc. are not only economic in nature, but also have great social significance). The latter is not mentioned in this article, apparently because the right of everyone who is legally on the territory of Russia to move freely, choose a place of stay and residence as one of the fundamental rights (and freedoms) of a person and a citizen is spoken of in Art. 27, and on freedom and working conditions - in Art. 37 of the Constitution.
Violation by the decision of the authorities of many constituent entities of the Federation of the unity of the economic space by creating zonal or regional more or less isolated markets with the prohibition of the import or export of certain goods, movement of labor, etc. is, in essence, an explicit form of partial economic separatism or at least a violation of the integrity of the state, as well as equality and completeness of human and civil rights and freedoms on the territory of the Russian Federation (part 2 of article 6). A negative attitude towards these violations is expressed in Part 2 of Art. 19 of the Constitution, which establishes the equality of human and civil rights and freedoms regardless of place of residence (for the territory of Russia is one). Our country's experience in this respect is rich.
These phenomena have long historical roots. At least since the end of the 60s, several successive congresses of the CPSU discussed and emphasized the harmfulness of creating de facto customs borders between the republics of the USSR and the territories and regions of Russia. Either the Kursk and some other regions banned for years the "export" of potatoes or other products outside their "boundaries", then the leadership of the Tsentrosoyuz (consumer cooperation) complained about similar obstacles put by the republican, regional and other authorities in its production and marketing activities. In the late 70s, for several years, the party and state authorities of Smolensk, Pskov and some other regions prohibited consumer cooperation enterprises from other territories of the USSR to sell in these regions their products, which were in short supply there, and bank branches of the named areas. The sale of any publishing product that passed all types of censorship or other control in any republic, territory or region could be arbitrarily prohibited by the secretary of the local committee of the CPSU. Secretary General of the party L.I. Brezhnev complained about such phenomena, but no one could change all this: the power of the "appanage princes" was growing.
Since the problem has not lost its relevance, it became necessary to consolidate in the Constitution of Russia the principle of the unity of economic space, a single market for goods, services and finance. This need is expressed in Part 1 of the analyzed article and is concretized, in particular, in Art. 71 (part 1, item "g"), 74 of the Constitution.
The situation is more complicated with the single free labor market. In 1932 g. Soviet authority restored the system of internal passports, canceled by the Provisional Government, which is now associated with the permissive (mainly prohibitive) regime of registration in cities and a similar - extracts in countryside, but without certification rural population... Such a fixation of the labor force for state and collective farms, the creation of closed labor markets in cities continued in the 60s and 70s, after passports were issued to rural residents, because the requirement to comply with the passport regime (i.e., the obligatory residence at the place of registration ) became even more rigid. Even after the conclusion of the USSR Constitutional Supervision Committee of October 11, 1991 (USSR Air Force, 1991, No. 46, art. 1307) and a number of decisions of the Constitutional Court, in particular, the resolution of April 4, 1996 (VKS RF, 1996, 2, pp. 42-59), all normative acts on the permitting procedure for registration, as well as the related restrictions on the rights of owners at their discretion to own, use and dispose of their housing and other property were declared unconstitutional, contrary to international acts on human rights and have lost their legal force - the situation has changed only partly. State authorities of a number of constituent entities of the Federation and local governments of several large cities continued to insist on maintaining administrative and economic measures (by establishing huge payments to local budgets even from citizens who have already bought apartments in these cities) to prevent the free movement of citizens and their choice of place of stay and residence. But citizens must be free throughout the territory of Russia, with the exception of special localities or cases that can only be established by federal law.
Restrictions are associated with violations of the unity of the economic space as market competition and freedom of economic activity even after the abolition of many Soviet administrative-legal and criminal-legal measures directed against freedom of economic, especially private business (primarily commercial) activity. Therefore, after the failure of the August 1991 putsch, the collapse of the USSR and the elimination of the monopoly domination of the CPSU apparatus, the restoration of the unity of the economic space of Russia became an important economic task of the state power.
The Decree of the President of the RSFSR on a single economic space of the RSFSR of December 12, 1991 (Air Force of the RSFSR, 1991, No. 51, art. 1830) was directed to create guarantees of this unity. According to the Decree, the acts of the "authorities and administration" bodies and decisions officials restricting the movement of goods, works and services in the domestic market of Russia. Further development of the legal regulation of economic relations characteristic of this single space is primarily associated with the 1993 Constitution.
The unity of the economic space is ensured by the unity of the legislative regulation of the economy. Legislation in the field of economics should provide for generally binding rules for the functioning of the market, their recognition throughout Russia, protection and protection of all forms and subjects of economic activity, uniform financial, currency, credit and customs regulation. Legal support the unity of the economic space in Russia is largely implemented by the Civil Code of the Russian Federation.
The constitutional obligations of the state, its bodies and their officials cover the creation and maintenance of such a unity of economic space, which corresponds to all of its properties arising not only from Art. 8 of the Constitution of the Russian Federation, but also from other provisions of the Basic Law. So, although the establishment legal framework the single market in Russia is mentioned only in Art. 71 of the Constitution of the Russian Federation, as one of the problems related to the exclusive jurisdiction of the Russian Federation, all constitutional provisions on the economy describe precisely a single market economy with its freedom of economic activity throughout the country - as for citizens, according to Part 1 of Art. 34, and for all other owners, equal with them (Federation, its subjects, municipalities, enterprises, etc.).
But this freedom is not absolute. The constitution of a democratic, legal and social state, recognizing, observing and protecting this freedom, cannot allow it to be abused by anyone. Therefore, the Constitution of the Russian Federation not only directly prescribes freedom of economic activity within the framework of a single economic space of the country, not only establishes the basis for the delimitation of the subjects of jurisdiction and powers between the Federation, its subjects and local governments in the economic field (part 3 of Art. 11, Art. 12, 71-73, 130-133), and partly the competence of some state authorities in the economic sphere (paragraphs "a" - "g", "e" part 1 of Art. 144, Art. 127), but also defines a number of restrictions on the freedom of all subjects of economic activity (part 2 of article 34).
These restrictions arise primarily from the content of human and civil rights and freedoms, as well as from the state's duty to recognize, observe and protect them (Articles 2, 17, 18). Since the policy of the state is aimed at creating conditions that ensure a dignified life and free development of a person, including in the sphere of work and remuneration (Article 7), it is clear that freedom of economic activity should not contradict state rules in this area.
If the Constitution prescribes (art. 9) that the land and others Natural resources should be used and protected as the basis of the life and activities of the peoples living in the corresponding territory, it is obvious that economic activity, so free that it would destroy this basis, is unacceptable, as well as free ownership, use and disposal of natural resources on the part of their owners, if it damages the environment or violates the rights and legitimate interests of others (part 2 of article 36).
If, according to Part 3 of Art. 35 of the Constitution, it is possible to expropriate property for the needs of the state in judicial procedure and subject to certain conditions, it must be admitted that this is also a certain limitation of economic freedom and property rights.
Likewise, it is everyone's duty to preserve nature and environment(Article 58), referring the protection of the latter and ensuring environmental safety to the joint jurisdiction of the Russian Federation and its subjects, as well as the right of everyone to a favorable environment, to reliable information about its condition and to compensation for damage caused by an environmental offense (Article 42 ), cannot but prevent the abuse of freedom of economic activity, the predatory use of natural resources, etc. Everyone's duty to pay legally established taxes(art. 57) may contradict the right to free economic activity and even the right to property: excessively high taxes can severely restrict, although lower taxes can encourage formally free economic activity; the optimal measure of taxation, which would properly replenish the treasury and at the same time regulate various types of economic activities in accordance with the public interest, in some cases has not yet been found, although tax legislation a number of important measures have been taken in this direction.
The rights and freedoms of a person and citizen to economic activity, along with his other rights and freedoms, may be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, and to ensure defense and state security (part 3 of article 55). The rights and freedoms in the field of economic activity established in Art. 27 (freedom of movement, choice of place of stay and residence), part 1 of Art. 34 (free use by each of his abilities and property for such activities), Art. 35 (right private property and inheritance), Art. 36 (ownership of land and freedom of ownership, use and disposal of natural resources), Art. 37 (freedom of labor), art. 42 (the right to a favorable environment), etc., may be limited in a state of emergency (Art. 56). For foreigners and stateless persons who enjoy the rights and bear obligations on an equal basis with the citizens of Russia, federal law or an international treaty may establish additional restrictions (part 3 of article 62).
In some cases, the Constitution only in general form speaks of the possibility of prohibition by law (of the Federation or its subject) of certain types of economic activity. There are, for example, bans on the cultivation of plant materials for the production of drugs, on such production and on the sale of drugs containing drugs without special permission and control from the state. Economic activity of citizens and legal entities, enterprises, etc. generally should take place within the framework of their special legal capacity.
The unity of the economic space of Russia requires the unity of legislation on national economy... This legislation should provide for the recognition throughout the country of acts (documents) of public authorities and local governments at all levels. It should support competition, limiting monopoly, controlling and regulating its inevitable tendencies (primarily in the field natural monopolies), promoting the creation and development of new independent enterprises, in particular in the already monopolized market sectors. The implementation of these ideas began in 1990-1992.
The need to create stable generally binding rules for the functioning of free market economy, not contradicting individual, collective and universal rights, freedoms and legal interests, is largely satisfied with the adoption and implementation of the first three parts of the Civil Code. They, in detail and in accordance with the Constitution, regulate legal position individuals and legal entities, ownership and other property rights, general issues law of obligations and numerous separate types of obligations. Civil law issues that were not included in these three parts (for example, copyright, inventive law) have so far been regulated by the Civil Code of the RSFSR in 1964 and federal laws. In the same way, relations on the use and protection of natural resources, and much more, remain only partially regulated on the basis of the Constitution; Especially difficult was the legislative solution to the problem of the conditions of ownership, use and disposal of agricultural land, which restrict the right of ownership and, in particular, the market turnover of these lands, allegedly in order to ensure their highly efficient use both in the interests of the owners and in the general interests.
The economic role of a democratic legal social state in a market economy is reduced mainly to the implementation of three functions:
1) the legislative definition of the circle of subjects of law for certain types of economic activity, as well as its objects and the relationship between them, in other words - legal rules on which economic activity is carried out;
2) encouragement, protection and protection of socially and economically viable forms of this activity (behavior of its participants), carried out mainly with the help of regulatory measures of a predominantly economic nature (increase or decrease in tax rates, bank interest with a loan provided by state or semi-state banks; an increase or decrease in prices for products and services produced by government orders, etc.), but within certain limits and by means of power, non-economic, especially when solving labor, environmental, health care and some other social problems of the national economy;
3) prevention of connection in the hands of public authorities, i.e. state power or local self-government, two areas of activity - inherent in them the exercise of power with typical for enterprises economic activities aimed at making a profit in one form or another, except for cases when it is directly and reasonably allowed by law.
Ensuring the unity of the economic space of Russia acquires particular importance in connection with the desire to develop integration processes within the CIS, leading to the gradual unification of the economic space of Russia, Belarus and other sovereign states, in which the free movement of goods, services and financial resources, as well as labor forces, harmonization of legislation and joint legal regulation of economic activity.
Legislative and doctrinal approaches to the definition of the concept of "economic activity"
The right to carry out economic activity is one of the fundamental constitutional rights of a person and a citizen. According to Art. 34 of the Constitution of the Russian Federation "everyone has the right to freely use 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 has determined the basic principles of its implementation. So, according to Part 2 of Art. 34 of the Constitution of the Russian Federation, economic activity aimed at monopolization and unfair competition is not allowed. Constitutional norms (Article 8) guarantee the unity of the economic space, free movement of goods, services and financial resources, and support for competition.
According to GA 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 system. 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 the just statement of E.P. Gubin, the implementation of the constitutional provision on the principle of freedom of economic activity will make it possible to make dramatic progress not only in the field of economics, but also in all other spheres of the life of our society. 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.”
The basis of economic relations is the recognition and protection of private, state, municipal and other forms of property in the same way (Article 8 of the Constitution of the Russian Federation). As a constitutional law, 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 GD Sadovnikova points out, economic freedom is possible only under 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 ensured by justice. Thus, the constitutional right to the free exercise of economic activity is one of the basic provisions underlying economic legislation, the corresponding sphere of activity of state authorities and local self-government, as well as economic justice.
Distinguishing between hired labor and independent economic activity, the Constitutional Court of the Russian Federation in its resolution dated April 23, 2012 No. 10-P noted that the Constitution of the Russian Federation, in accordance with the goals of the social state, enshrined in its Art. 7 (part 1), guarantees everyone both freedom of work and the right to freely dispose of their abilities to work, choose an occupation and profession, and the right to protection from unemployment (art. 37, parts 1 and 3), and also proclaims the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34, Part 1). The ways in which citizens can exercise these constitutional rights include hired labor, carried out in a freely chosen type of activity and profession on the basis of an employment contract concluded with an employer, as well as independent economic activities carried out in a freely chosen sphere, individually or jointly with other persons. by creating a commercial organization as a form of collective entrepreneurship. By giving preference to one method or another, citizens agree with those legal consequences that are determined by the established federal legislator - based on the essence and targeting the corresponding 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 the rights and obligations, as well as state guarantees 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 there is no legal definition of economic activity in the legislation of the Russian Federation. However, the conducted "inventory" shows that the term in question is used in regulatory legal acts, including laws, often for various purposes.
So, ch. 22 of the Criminal Code of the Russian Federation is devoted to crimes in the field 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 the Protection of Competition uses the phrase "economic activity" in order to define the concept of "coordination of economic activity" (Art. 4), as well as when introducing rules to prohibit its implementation (Part 5, Art. 11). Administrative liability is provided for the coordination of economic activities of economic entities, which is unacceptable in accordance with the antimonopoly legislation of the Russian Federation, the Code of Administrative Offenses of the Russian Federation (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 basic principles of legislation on taxes and fees, contains a ban on the establishment of taxes and fees that restrict or create obstacles to economic activities of individuals and organizations that are not prohibited by law.
Chapter 13 of the Federal Law of December 29, 2012 No. 273-FZ "On Education in the Russian Federation" is devoted to the 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 field 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 the arbitration court shall have jurisdiction over 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.
So, canceling the decision and decisions of the lower courts, 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: “The partnership is conducting economic activities aimed at ensuring the ownership and use of premises with common property apartment building... Thus, the dispute about the amount of payment for the maintenance of the common property of a residential building levied from an entrepreneur, arising from civil legal relations and affecting the results of entrepreneurial activities of both an entrepreneur and a partnership, is directly related to the economic activities of two economic entities and, as expressly provided for in Article 28 Of the Arbitration Procedure Code of the Russian Federation, subordinate to the Arbitration Court. "
Subordinate normative legal acts also regulate relations in the field of economic activity in terms of this concept. For example, the 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 employed by economic entities carrying out certain types of economic activity on the territory of the Russian Federation.
The All-Russian Classifier of Economic Activities (OKVED 2) OK 029-2014 (NACE Rev. 2) "states that economic activity takes place when resources (equipment
nie, labor, technology, raw materials, materials, energy, informational resources) are combined into a production process with the goal of producing products (providing services). Economic activity is characterized by the costs of producing products (goods or services), the production process 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 research purposes 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, OM Oleinik points out that "economic activity is one of the types of human economic activity, a form of individual participation in social production and a way of obtaining financial resources to support life."
According to the position of EP Gubin and PG Lakhno "economic activity is the process of reproduction of material and spiritual wealth, including production, distribution, exchange and consumption." For modern economic activity in our country, scientists believe, it is characteristic that it: 1) arises 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 commodity 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 its most general form, economic activity is an activity of a value nature, aimed at creating material and non-material 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 ownership, 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 benefits (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 reproductive activity, combining stages such as production, distribution, exchange, consumption. It is important to pay attention to the fact 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, based on the presence of a sign of professionalism, to classify economic activities as active (for the production and sale of goods, works, services) and passive (placing funds in credit institutions, transferring property for rent, v trust management, disposal of their own property, including by making authorized capital organizations, etc.).
At the same time, we will express the opinion that the doctrinal judgments and approaches available in regulatory legal and judicial acts are clearly not enough. There is a need for legislative consolidation of the concept under consideration, since the qualification of an activity as an economic activity entails the endowment of the entity performing it with rights, the imposition of duties on it, the establishment of legal mechanisms for ensuring and protecting rights, as well as other legal consequences, the analysis of which is carried out in this monograph.
ON THE CONSTITUTIONAL LEGAL FRAMEWORK OF FREEDOM OF ECONOMIC ACTIVITY
Perfilov Eduard Konstantinovich, post-graduate student of the correspondence course of the Russian Academy of Justice, assistant judge.
Place of work: Moscow Arbitration Court.
Annotation. The core of the economic rights of citizens, the Constitution of the Russian Federation in Article 34 defines the right to the free use of abilities and property for entrepreneurial and other economic activities not prohibited by law. This article is interconnected by the general provision of Article 8 of the Constitution of the Russian Federation, according to which freedom of economic activity is guaranteed in the Russian Federation.
Key words: freedom of economic activity, constitutional legislation, constitutional and legal foundations of freedom of economic activity.
ABOUT CONSTITUTION-LEGAL BASES OF FREEDOM ECONOMIC ACTIVITY
Perfilov Edward Konstantinovich, the Russian Academy of Justice, the post-graduate student of a correspondence mode of study.
Place of employment: Arbitration court of Moscow.
Contacts of the
Edesl [email protected]
Annotation. Kernel of the economic rights of citizens the Constitution of the Russian Federation in article 34 defines the right to free use of abilities and property for enterprise and other economic activities not forbidden by the law. Given article is interconnected by general provisions of item 8 of the Constitution of the Russian Federation according to which in the Russian Federation are guaranteed economic activities freedom.
Keywords: economic activities freedom, the constitutional legislation, constitution-legal bases of freedom economic activity.
The Constitution of the Russian Federation enshrines the right to freedom of economic, including entrepreneurial activity, proclaimed in Article 22 of the UN Universal Declaration of Human Rights1. It is noteworthy that in its constitutional embodiment, this right turns out to be a fundamentally new category not only for theory
constitutionalism, but philosophy and law in a broad conceptual gradation of legal sciences2.
Freedom of entrepreneurship is a key component of freedom of economic activity. As noted by V.D. Zorkin, economic freedom within the meaning of the Constitution of the Russian Federation presupposes, first of all, freedom of entrepreneurship, which is a universal (integrated) principle of constitutional law, combining several relatively independent principles of legal regulation of relations in the field of entrepreneurial activity ( principle of freedom
2 Shershenevich G.F. General theory rights: Textbook. manual (according to the publication of 1910-1912) M., 1995. Vol. 1. Issue 1. p. 39-59.
contracts, general permissive principle, the principle of freedom of competition, etc.) 3.
According to E.I. Kolyushin, the Constitution of Russia refers to the use of a person's abilities and his property for entrepreneurial activity, however, in practice, this activity in many cases is based on the use not only and not so much of his own abilities and property, but the abilities of the property of others (hired labor). In the opinion of the scientist, this approach follows from the content of the concept of "entrepreneurial activity" and does not correspond to Art. 34 of the Constitution of the Russian Federation 4. This point of view is shared by A.A. Bezuglov and S.A. Soldiers, who propose to solve at the constitutional level the issue of the right to use someone else's labor in the process of entrepreneurial activity. It seems that this formulation of the question is quite logical and should be discussed and analyzed with the potential introduction of amendments to the Russian Constitution.
As noted by M.V. Baglay, the right to freedom of economic activity provides for the free use by a person of his abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34 of the Constitution of the Russian Federation). In combination with the right to private property, such freedom of entrepreneurship acts as legal basis market economy, excluding the state monopoly on the organization of economic life. This freedom is considered as one of the foundations of the constitutional order (Article 8 of the Constitution) 5.
The category of “freedom” is filled with a special meaning in the text of the second chapter of the Constitution of the Russian Federation. The legislator used here such a terminological construction as "the right to freedom". A number of articles of this chapter directly or indirectly transfer the principle of economic freedom to the content of the constitutional powers of the individual. In particular, it mediates the possibility of various types of economic activity: the right to freedom in a broad sense (part 1 of article 22), which determines the fundamental admissibility of any form of social activity of an individual; the right to move freely, choose a place of stay and residence, freely travel outside and freely return to the Russian Federation (Art. 27); the right to freely disseminate religious and other beliefs (Article 28); the right to freely produce and distribute information (Art. 29). Directly disclose the content of the economic freedom of the individual in the Russian Federation, the right of everyone to freely use their abilities and property for entrepreneurial and other economic activities (part 1 of article 34); the rights of everyone to freely dispose of their abilities for work, to choose their type of activity and profession (part 1 of article 37) and freedom guaranteed to everyone different types creativity and teaching (part 1 of article 44 of the Constitution of the Russian Federation).
The most famous constitutions to the world contain whole sections in which the rights and freedoms of the individual are enshrined. They include, as a rule, individual rights and freedoms (the right to life, dignity,
3 See: Commentary on the Constitution of the Russian Federation / Ed. V.D. Zorkina, L.V. Lazarev - M .: Eksmo, 2009 .-- 1056 p.
4 Kolyushin E.I. Decree. op. - p. 206.
5 Constitutional law of the Russian Federation: textbook / M.V. Baglai. - 7th ed., And add. - M .: Norma 2008 .-- 816 p.
personal integrity, etc.); political (the right to association, participation in the management of state affairs, etc.); socio-economic (freedom of entrepreneurship, freedom of labor, the right to private property, etc.); cultural (freedom of creativity, the right to education, etc.).
In one of the most democratic constitutions of the modern world, the Italian Constitution, which has been in effect since January 1, 1948, consists of 139 articles, 54 devoted to the rights, freedoms and duties of citizens. It was the Constitution of the Italian Republic that was one of the first in bourgeois society to establish that property can be public or private, while economic benefits belong to the state, societies or individuals. Subsequently, these forms of ownership received their constitutional confirmation in the constitutions of many states, including the Russian Federation.
Part one of the Italian Constitution, consisting of four sections, regulates the rights and obligations of citizens, regulates the issues of the individual legal status of a person and citizen and the corresponding legal problems civil society... It consists of chapters: “I. Civil Relations ”, which deals with the personal and political rights and obligations of citizens; “II. Ethical and social relations ”(family, health care, art, science, education); "III. Economic Relations "(labor, trade unions, private initiative, property, cooperation, savings and credit); "IV. Political relations "(elections, parties, petitions, access to public service, military service, taxes, loyalty to the Republic and observance of the Constitution).
Perhaps, there is no other Constitution such a detailed and broad regulation of rights and freedoms in the field of civil and ethical - social, economic and political relations6. It could become a model in the development and improvement of constitutional legislation in Russia.
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 the Resolution from
December 23, 1997, No. 21-P "In 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" tax system in the Russian Federation "in connection with the request of the Presidium of the Supreme Court of the Russian Federation".
Clause 2 of Art. 855 of the Civil Code, a sequence was established, later changed, for debiting funds from the client's bank account if such funds were insufficient to meet all the claims presented to him.
The essence of the decision taken is to ensure the freedom of the bank's client to dispose of his property, i.e. in cash stored in deposits. The owner himself has the right to determine what to pay him as a matter of priority - wages or taxes.
6 Constitution of foreign states. - M., 1996.
The Constitutional Court defended the freedom of economic activity and private property, since new edition clause 2 of Art. 855 of the Civil Code in fact turned out to be gross and unlawful interference of the state in economic processes. This novel imposed on enterprises the obligation to pay wages, and thus they received the right not to fulfill their contractual obligations to counterparties and commercial banks, creating a spiral of defaults as a result.
The principle of freedom of economic activity also underlies the concept of constitutional and legal foundations for the activities of economic societies and partnerships. Its supporting "structures" are the following provisions:
Freedom of economic activity (part 1 of article 8 of the Constitution);
The economic activity of corporations, private by nature, cannot develop in contradiction with publicly significant goals, its implementation should not violate the rights and freedoms of other persons (part 3 of article 17 of the Constitution);
The state establishes the legal foundations of the single market (paragraph "g" of Art. 71 of the Constitution);
In the process of establishing the legal foundations of a single market, the state may impose restrictions on the freedom of economic activity of corporations (part 3 of article 55 of the Constitution), which must be strictly proportional (the principle of proportionality) and be implemented in the form of a federal law.
The basic principles of this concept were developed by the Constitutional Court of the Russian Federation in its decisions concerning joint stock companies, limited liability companies and partnerships.
So, is freedom of entrepreneurship only a function of public interest, as formulated by the legislator, or should it have the main content, as a constitutionally inviolable zone of the most important powers, such without which it is objectively impossible to carry out entrepreneurial activity?
The Constitutional Court of the Russian Federation received a good opportunity to answer this question when considering a case on checking the constitutionality of the provisions of Art. 74 and 77 of the Federal Law "On Joint Stock Companies", which regulate the procedure for the consolidation of placed shares of a joint stock company and the repurchase of the resulting shares.
In the Resolution on this case No. 3-P1 of February 24, 2004, the Constitutional Court noted that freedom of economic activity is, first of all, the freedom to make strategic economic decisions taken by the general meeting of shareholders and the board of directors. These are the decisions about the need to consolidate shares. The courts, exercising control over complaints from shareholders and holders of fractional shares over decisions of the management bodies of joint-stock companies, do not assess the economic feasibility of the proposed option for consolidating shares, since due to the risky nature of entrepreneurial activity, there are objective limits in the ability of the courts to assess the presence of business errors in their activities. In addition, judicial control over the activities of the board of directors and the general meeting of shareholders during consolidation, entailing the redistribution of joint-stock ownership, is carried out post factum, which objectively makes it difficult to assess the incentives that guided the management bodies of the joint-stock company, which have independent
stew and wide discretion when making decisions in the field of business.
Based on constitutional principles, the conclusions of the Constitutional Court on the objective limits in the ability of public authorities represented by courts to assess strategic economic solutions are more general. In fact, these are conclusions that after a number of years it is difficult to establish the context of these decisions. The expiration of time leads to complex dynamics of legal relations; property is transferred from one person to another, who in good faith assumed that they were acquiring it from an impeccable legal owner. The principle of legal certainty, which is so often used in decisions of the European Court of Human Rights, requires taking into account the legitimate interests of bona fide acquirers and ensuring the stability of civil circulation. This conclusion of the Constitutional Court, in essence, is an answer to the question of whether it is permissible to revise the results of privatization from the standpoint of constitutional law and general European legal principles.
Specific issues related to the exercise of the right to freedom of economic activity are regulated by a large number of legislative acts, and above all by the Civil Code of the Russian Federation. Civil law regulates relations between persons engaged in entrepreneurial activity, or with their participation. The rules of this law apply to relationships involving foreign citizens, stateless persons and foreign legal entities, unless otherwise provided by federal law. Civil Code, this kind of basic law of the market economy, introduces economic activity into the general framework of relations between any individuals and legal entities with other persons, enshrines the freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs. The law is based on the need for the unimpeded exercise of civil rights and ensuring the restoration of violated rights, their judicial protection. Among the legislative acts on economic activity are federal laws: from 24.07.2007 N 209-FZ "On the development of small and medium-sized enterprises" 7, dated 01.12.2007 N 315-FZ "On self-regulatory organizations»8, from
08.02.1998 N 14-Fz "On limited liability companies" 9, dated 26.10.2002 N 127-FZ "On insolvency (bankruptcy)" 10, dated 16.07.1998 N 102-FZ "On mortgages (pledging real estate)" 11 and etc.
The Constitution of Russia, speaking about the right to freely use abilities and property, does not provide for any restrictions on property status or other criterion. Does the subject have enough abilities and property to carry out
7 "Collection of legislation of the Russian Federation", 30.07.2007, N 31, art. 4006 // " Russian newspaper", N 164, 31.07.2007,
"Parliamentary Gazette", N 99-101, 09.08.2007.
8 "Collected Legislation of the Russian Federation", 03.12.2007, N 49, Art. 6076 // "Rossiyskaya Gazeta", N 273, 06.12.2007,
"Parlamentskaya Gazeta", N 174-176, 11.12.2007.
9 "Collected Legislation of the Russian Federation", 02.16.1998, N 7, Art. 785 // "Rossiyskaya Gazeta", N 30, 17.02.1998.
10 "Collected Legislation of the Russian Federation", 28.10.2002, N 43, Art. 4190 // "Parliamentary newspaper", N 209-210, 02.11.2002, "Rossiyskaya Gazeta", N 209-210, 02.11.2002.
11 "Rossiyskaya Gazeta", N 137, 22.07.1998 // "Collection of legislation of the Russian Federation", 20.07.1998, N 29, art. 3400.
of various types of economic activity, he himself determines. At the same time, there are some restrictions in the current legislation; a person with full legal capacity (as a rule, from the age of 18) can engage in entrepreneurial activity.
By virtue of the constitutional principle of freedom of economic activity, citizens, realizing the right to freely use their abilities and property for entrepreneurial and other economic activity not prohibited by law, have the right to carry out it both individually - in the status individual entrepreneur, and by participating in an economic society, partnership or production cooperative, i.e. by creating a commercial organization as a form of collective entrepreneurship.
The recognition of the right to economic activity gives rise to certain obligations for the state, which act as guarantees of this right. State bodies, for example, cannot deny registration to an enterprise, citing inexpediency. They must fight racketeering and extortion, protect the property of a private entrepreneur on an equal basis with state property. All my economic policy the government of the rule of law promotes and helps private business, encourages its development and protects against illegal encroachments. Any damage caused to the enterprise through the fault of officials government agencies is refundable.
The rights to own, use and dispose of property, as well as freedom of entrepreneurial activity and freedom of contracts may be limited by federal law, but only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, 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 through civil legislation the entrepreneurial activity of commercial organizations, including joint-stock companies, the federal legislator in accordance with paragraphs "c" and "o" Art. 71 of the Constitution of the Russian Federation must take into account that within the meaning of the provisions of Part 3 of Art. 55 of the Constitution of the Russian Federation in conjunction with its Art. 8, 17, 34 and 35 possible restrictions by federal law on the rights to own, use and dispose of property, as well as freedom of entrepreneurial activity and freedom of contracts, based on general principles rights must meet the requirements of justice, be adequate, proportionate, proportionate and necessary to protect constitutionally significant values, including the rights and legitimate interests of others.
As noted by the President of the Russian Federation V.V. Putin, the economic rights of citizens form the basis of the country's economic system. They reflect the boundaries of individual freedom in the economic sphere, adjust the state policy in the economic sphere (especially in the sphere of the free market, and in the taxation system). The gradual transition of Russia to a market economy led to a certain transformation of the economic rights of citizens.
The President of the Russian Federation, as a guarantor of human and civil rights and freedoms, has also repeatedly emphasized that
the policy of the state should be focused on promoting its social and economic development... Given the gradual integration of the Russian Federation into the world community, clarity and consistency in the field of tax and business regulation must be observed12. It is necessary to ensure the proper level of economic freedom, equal competition, strengthen the right of private property13, as well as create conditions where “everyone's wealth should be determined by his work and abilities, qualifications and efforts expended” 14. All this applies fully to regulations and judicial protection of economic rights and freedoms.
The successful solution of the problems of the formation and improvement of the institution of constitutional economic rights and freedoms of man and citizen in the Russian Federation is possible only on condition of deep and detailed scientific study of all
elements of the mechanism of socio-economic and legal implementation of the specified group of rights. Designing and debugging such a mechanism requires a lot of effort both on the part of the legislature and through clear and reasonable measures taken by the executive and judicial authorities.
At present, the system for the implementation and protection of economic rights and individual freedoms in the Russian Federation is far from perfect. The reasons for this state of affairs are multifaceted, however, the lack of a well-thought-out legal concept of economic rights and freedoms as a constitutional legal category is of decisive importance. As a result, this results in the absence of a scientifically grounded, supported by social guidelines and provided with political and legal means of a general strategy for the socio-economic development of Russia.
The constitutional meaning of securing the right to freedom of economic activity implies that the policy of the state should be aimed at creating conditions conducive to the economic development of the country. We need stable laws governing economic and business activities, and the state must ensure their observance. In modern conditions, a holistic, one system constitutional means of protection and protection of economic rights and freedoms of man and citizen, which could become the basis for all human rights legislation of the Russian Federation, human rights activities, as well as for human rights institutions in other branches of law.
Bibliography:
1. Budget message of the President of the Russian Federation to the Federal Assembly of the Russian Federation on budgetary policy in 2008 - 2010. March 9, 2007
2. Commentary on the Constitution of the Russian Federation / Ed. V.D. Zorkina, L.V. Lazarev - M .: Eksmo, 2009 .-- 1056 p.
3. Kolyushin E.I. Decree. op. - S. 206.
12 Budget message of the President of the Russian Federation to the Federal Assembly of the Russian Federation on budgetary policy in 2008 - 2010. March 9, 2007
13 Message from the President of Russia Vladimir Putin to the Federal Assembly of the Russian Federation on May 10, 2006 // Rossiyskaya Gazeta 2006 May 11
14 Address of the President of Russia Vladimir Putin to the Federal Assembly of the Russian Federation on April 25, 2005 // Rossiyskaya Gazeta 2005. 26 April
4. Constitutional law of the Russian Federation: textbook / M.V. Baglai. - 7th ed., And add. - M .: Norma 2008 .-- 816 p.
5. The constitution of foreign states. - M., 1996
6. Message from the President of Russia Vladimir Putin to the Federal Assembly of the Russian Federation on May 10, 2006 // Rossiyskaya Gazeta 2006 May 11
7. Message from the President of Russia Vladimir Putin to the Federal Assembly of the Russian Federation on April 25, 2005 // Rossiyskaya Gazeta 2005. April 26 // "Parliamentary newspaper", N 99-101, 09.08.2007.
8. "Rossiyskaya Gazeta", N 137, 22.07.1998 // "Collection of legislation of the Russian Federation", 20.07.1998, N 29, art. 3400.
9. "Collected Legislation of the Russian Federation", 03.12.2007, N 49, Art. 6076 // "Rossiyskaya Gazeta", N 273, 06.12.2007, "Parliamentary Newspaper", N 174-176, 11.12.2007. Russian newspaper. 1998 December 10.
10. "Collected Legislation of the Russian Federation", 30.07.2007, N 31, Art. 4006 // "Rossiyskaya Gazeta", N 164, 07/31/2007
11. "Collection of legislation of the Russian Federation", 02.16.1998, N 7, art. 785 // "Rossiyskaya Gazeta", N 30, 17.02.1998.
12. "Collected Legislation of the Russian Federation", 28.10.2002, N 43, Art. 4190 // "Parliamentary newspaper", N 209-210, 02.11.2002, "Rossiyskaya Gazeta", N 209-210, 02.11.2002.
13. Shershenevich G.F. General theory of law: Textbook. manual (according to the publication of 1910-1912) M., 1995. Vol. 1. Issue 1 S. 39-59
REVIEW
The relevance of the chosen research topic does not raise doubts, since it is due to the theoretical and practical significance of the issue concerning the peculiarities of the constitutional and legal consolidation of economic activity.
The role of state regulation of the economy, somewhat underestimated during the initial stages of reforming the country's economic system, is now significantly increasing. Moreover, government regulation economic processes occurring in society today occupies a leading place among the rest of the activities of the Russian Government.
In addition to the practical significance of the topic chosen by the author, the relevance of the topic chosen by the author also lies in the fact that the theory of constitutional law, developed by Soviet jurists, is experiencing a rebirth today, in connection with which many institutions of this branch of Russian law need to be rethought and fill their content with new meaning, reflecting the realities modern development domestic legal science and practice. These institutions include a set of constitutional norms that regulate the foundations of freedom of economic activity in the Russian Federation.
In this study, Perfilov E.K. demonstrated a high ability for research work, which was expressed in the logic of presentation, and in the ability to analyze and generalize the material. As the merits of the work, it is possible to note both a fairly high level of the theoretical part, and undoubtedly the practical value of the analysis carried out, the proposals put forward for improving the legislation.
Doctor of Law, Professor
UDC 34 BBK 67
CONSTITUTIONAL MEANING OF FREEDOM OF ECONOMIC ACTIVITY
YANA VITALIEVNA LOBANOVA,
Adjunct of the Department of Constitutional and Municipal Law of the Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikotya E-mail: [email protected]
Scientific specialty 12.00.02 - constitutional law; constitutional litigation; municipal law
Scientific adviser: Doctor of Law, Professor V.I. Chervonyuk Reviewer: Doctor of Law, Professor E.N. Khazov
Citation index in the NIION electronic library
Annotation. The article examines the concept of freedom in a philosophical sense, a constitutional sense. The content of freedom of economic activity through its basic economic rights is analyzed.
Key words: freedom in the philosophical sense, the constitutional meaning of economic freedom, the content of freedom of economic activity.
Abstract. The article examines the concept of freedom in philosophical value, the constitutional meaning. Analyze the contents of the freedom of economic activity through its basic economic rights.
Keywords: freedom in the philosophical understanding of the constitutional meaning of economic freedom, the content of the freedom of economic activity.
V modern world the question of understanding freedom is one of the key and remains relevant to this day, since freedom is closely related to the desire of a person to defend his rights and is an essential condition for the formation of a democratic state, therefore, the object of analysis in the article is freedom as such in its philosophical and economic understanding, as well as defining the boundaries of such freedom.
The question of freedom has been considered by many philosophers. Consider the views of some philosophers on this issue. The first views on freedom originate in ancient Greek philosophy. The use of such a concept is found among the sophists. By freedom, they mean the “inner freedom” of the individual individual1. So, for example, one of the outstanding representatives of ancient Greek philosophy, Aristotle, defined freedom exclusively as freedom of human action or freedom of spontaneity. Human action is free in the sense that it emanates from
"Own influence" or is "sua sponte" 2. Another ancient Greek philosopher, Epictetus, defined freedom as the desire for one's own aspirations “the one who has everything according to his own free decisions is free” 3. He focused his attention on inner freedom, urging him to depend as little as possible on the outside world.
Subsequent philosophers interpret freedom already in the Middle Ages. At this stage, for thinkers, the key subject of attention is the freedom of human will. One of these was Aurelius Augustine. The next representative of this era is Thomas Aquinas. As for Aurelius Augustine, so for Thomas Aquinas, freedom is seen as a unique phenomenon with an intrinsic value - it is the possibility of choice based on reason5.
Significant changes in the relationship between personality and society were inherent in the Renaissance. Unlike previous thinkers, the phenomenon
freedom is understood at this stage somewhat differently. Such changes are associated with the transformation in various areas of human life: political - economic, socio - cultural, natural - scientific and religious, which led to an increase in the autonomy of the individual. At this stage, a free person rather follows not religious dogmas, but reason, which is capable of cognizing the world in a consistent manner. Accordingly, the question arises about a free state, one of the functions of which should be to provide citizens with an objective opportunity to exercise freedom6. This gives birth to a new approach to understanding freedom through understanding social progress. This idea was adhered to by B. Spinoza7,
F. Bacon., T. Hobbes 8. The main ideas created by the thinkers of the Renaissance were implemented in the Declaration of the Rights of Man and Citizen of France in 1789, and then in the first Constitution of the French Republic in 1793.
In Russia, ideas about the need for guarantees of freedom by society, state and law are reflected in the works of philosophers such as P.I. Novgorodtsev, V.S. Soloviev, I.A. and others. Thus, PI. Novgorodtsev believes that the main task of the state is to ensure personal freedom and create the material conditions for its existence10. V.S. Soloviev affirms the unconditional value of freedom, defines law as “a historically flexible definition of the necessary compulsory balance of two moral interests - personal freedom and the common good” 11.
Thus, the problem of freedom was solved throughout all cultural and historical eras, namely, the issues of the relationship between the individual and the general, the freedom of will of the individual and the interests of society. Representatives of each era defined freedom in a new way, in accordance with the reality in which they lived. It is the general philosophical approach that presupposes the interconnection of two aspects of freedom - external and internal. The philosophical understanding of the category of freedom is very important today, since without knowledge of philosophy, which are basic, it is impossible to reveal the concept, signs and structure of freedom in constitutional law.
A special group of fundamental rights and freedoms in constitutional law is made up of economic rights and freedoms. The Constitution of the Russian Federation of 1993, in comparison with the laws of the Soviet era, proceeds from a fundamentally different position when consolidating them. In the previous aspect, there was a tendency for the dominant role of the state in providing economic benefits man. This kind of interpretation, reflected in constitutional norms, naturally followed from the fact that the state was the actual and only owner of all public wealth,
which were formally declared public
In the 1993 Constitution, there was a rejection of the global nationalization of the economy, and now, in accordance with Part 1 of Art. 34 of the Constitution of the Russian Federation: everyone has the right to freely use their abilities and property for economic activities not prohibited by law. Article 8 of the Constitution of the Russian Federation enshrines the freedom of economic activity and is contained in Chapter 1 of the Constitution of the Russian Federation, which enshrines the foundations of the constitutional order; accordingly, this provision acquires the status of one of the foundations of the constitutional order. Economic freedom, within the meaning of the Constitution, presupposes, first of all, freedom of entrepreneurship. The Constitutional Court of the Russian Federation noted that "the principle of economic freedom predetermines constitutionally guaranteed powers, which constitute the main content of the constitutional right to the free use of abilities and property for entrepreneurial and other economic activities not prohibited by law" 13. 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 influence14. On the constitutional principle of freedom of economic activity, the norms of Ch. 2 of the Constitution, which enshrine the rights inherent in a society in which a market economy operates. They can be designated as basic economic rights, which, in fact, reflect the constitutional meaning of Art. 8, 34 of the Constitution of the Russian Federation. These include15:
First, the right to choose a type of activity or occupation means freedom economic choice: to be either an entrepreneur-employer or an employee (article 37 of the Constitution). The principle of freedom of labor is reflected in Art. 23 of the Universal Declaration of Human Rights 16. The norms enshrined in the Constitution of the Russian Federation correlate with the provisions of the ILO Declaration "On Fundamental Principles and Rights at Work" 17, which focused on the elimination of all forms of forced or compulsory labor, the prevention of discrimination in the field of work and occupation. The prohibition of forced labor is provided for in Art. 8 of the International Covenant on Civil and Political Rights. The term "forced or compulsory labor" in accordance with Art. 2 of the ILO Convention on Forced or Compulsory Labor18 (taking into account the 2014 Protocol and 2014 Recommendation) means any work or service required of a person under the threat of any punishment for which that person has not voluntarily offered his services. These norms have found their confirmation in other international legal acts, such as: the ILO Convention "On the Abolition of Forced Labor" 19; ILO Convention on Discrimination in Respect of Employment and Occupation 20; Council of Europe Convention on the Protection of Human Rights and Fundamental Freedoms 21; European Social Charter22 and others. For the first time in Russia, the prohibition of forced labor was parried at the constitutional level, and the constitutional provisions were enshrined in Art. 2 Labor Code RF23. Thus, freedom of labor in the Russian Federation is implemented in the following forms: conclusion of an employment agreement (contract), membership corporate organization, individual and private business activities. Everyone can create an enterprise in the manner prescribed by law or carry out entrepreneurial activities without education.
legal entity24;
Secondly, the right to move freely, to choose a place of stay and residence means freedom of the labor market. Freedom of movement is enshrined in Art. 13 of the Universal Declaration of Human Rights25, Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms26 and Art. 12 of the International Covenant on Civil and Political
rights 27. Article 27 of the Law "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation" 28 provides for notification registration of citizens at the place of stay and residence. The rules for registering and deregistering citizens of the Russian Federation at the place of stay and residence within the Russian Federation are approved by Decree of the Government of the Russian Federation No. 71329. This right can be limited only subject to the provisions of Part 3 of Art. 55 and art. 56 of the Constitution of the Russian Federation.
Thirdly, the right to association implies the right for joint economic activity, and, consequently, the freedom to choose the organizational and legal forms of entrepreneurial activity (part 1 of article 30). The most important international acts in the field of human rights and freedoms enshrine the right of every person to association and the prohibition of coercion to join any association, such as: Universal Declaration of Human Rights (Art.20) 30, International Covenant on Civil and Political Rights (Art 22) 31, European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 11) 32.
According to the existing legislation in Russia, there are several types of public associations, depending on the goals of their activities. Depending on whether the merger sets the goal of making a profit as the main one or not, organizations are divided into commercial and non-commercial. Commercial organizations in accordance with parts 1 and 2 of Art. 50 of the Civil Code of the Russian Federation33 can be created in the organizational and legal forms of business partnerships and societies, peasant (farmer) households, economic partnerships, production cooperatives, state and municipal unitary enterprises... Non-profit organizations can be created in such organizational and legal forms as a consumer cooperative, Cossack societies, movements, foundations, non-profit partnerships, private institutions, etc. Non-profit organizations can carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created. Regulatory legal acts governing activities
relevant organizations, in addition to the above, are: FZ "On non-profit organizations"34, FZ" On self-regulatory organizations "35, FZ" On public associations"36 and others. It should be noted that the constitutional right to freedom of association is not absolute and can be limited in accordance with Part 3 of Art. 13 of the Constitution.
Fourth, the right to own property. Triad
powers: possession, disposal and use of it both individually and jointly with other persons (part 2 of article 35), the same powers in relation to land and natural resources (part 2 of article 36), use of property for business purposes activities (Part 1 of Art. 34) - means freedom to form the property foundation of entrepreneurship, turnover of property, freedom to sell manufactured goods on the market, including the right to freedom of contract37. The Constitutional Court of the Russian Federation in the Resolution of 23.02.1999 No. 4-P38 especially focuses on the connection between freedom of contract and freedom of economic activity.
The specific object of various forms of ownership is land and other natural resources. Land is the constructive basis of any real estate and, as such, its role as an object of private property in a market economy is the highest. The Constitution enshrines this right only for citizens and associations39. The right to private property is protected by federal law, and no other regulations, including the laws of the constituent entities of the Russian Federation, can change its status40.
Thus, freedom of economic activity consists in the legal protection of the interests of producers and consumers. The economic freedom of both is most productively guaranteed by the institution of private property, the natural framework for the protection of property rights between business entities41;
Fifth, the right to protection from monopoly and unfair competition (Art. 34) - presupposes freedom of competition42. Part 2 of Article 34 partially reproduces the provisions of Art. 8 of the Constitution of the Russian Federation. It provides an exception to the principle
freedom of economic activity, since it prohibits the conduct of such activities that are aimed at monopolization and unfair competition. Unfair competition is different from monopolization. It is characterized by the fact that there is competition and competition in the market, however, this struggle is carried out inappropriate methods - by popularizing asternal, inaccurate or distorted information that can cause losses to another business entity or damage its business reputation; misleading consumers about the nature, method and place of manufacture, consumer properties, qualities and quantities of goods, or in relation to its manufacturers, and so on.
Thus, the inclusion of a clause prohibiting monopolistic activities and unfair competition underlines the importance of this principle for today's economic systems, since monopolization was not considered until a certain time as a phenomenon that could harm the economy.
Based on the foregoing, the study of the category of freedom in its philosophical understanding, constitutional aspect, consideration of the main components of the economic rights of such freedom, allows, in our opinion, to say that freedom of economic activity is important for a common understanding in two senses. First, economic freedom is part of freedom as such in general. In this sense, it represents value in itself. Secondly, economic freedom is an essential condition for political freedom. Historical experience shows that there is a direct link between the free market and political freedom. Of course, the basic philosophical postulates of the doctrine of freedom formed the basis of a relatively new Russian constitution, and although the Constitution of the Russian Federation does not disclose the category of freedom of economic activity, it nevertheless contains and consolidates this principle in Article 8 of Chapter 1 of the Constitution of the Russian Federation (Fundamentals of the Constitutional System). In essence, freedom of economic activity is not limited to formal legal consolidation in article 8 of the Constitution of the Russian Federation. Interrelated analysis of a range of
LEGAL SCIENCES
zheniy of the Basic Law makes it possible to reveal the constitutional meaning of freedom of economic activity in Articles: 34, 35, 36, in a number of provisions of Chapter 3 of the Constitution of the Russian Federation, including through the content of this very freedom.
1 See Conze W. Freiheit // Brunner O. / Conze W. / Koselleck R. (Hgg.) Geschichtliche Grundbegriffe. Historisches Lexikon zur politisch-sozialen Sprache in Deutschland. Bd. 2 Stuttgart. 1998. S. 435 f. // Parkhomenko R.N. The Idea of Freedom in the Conservative Intellectual Tradition: Russia and Germany. M .: Lenand, 2014.S. 30-31.
2 Cp .: Ibid. S. 16.
3 Epiktet, Diss I, 12, 9.
4 De corr. Et Gratia I, 2; Pl 44, 936.
5 Thomas Aquinas. Sum against the Gentiles. M., 2000.S. 375-377.
6 Nudnenko L.A. Constitutional rights and individual freedoms in Russia // Tutorial/ Resp. zed. Honored Scientist, Dr. jurid. Sciences, prof., retired judge of the Constitutional Court of the Russian Federation N.V. Vitruk, St. Petersburg: R. Aslanova " Legal Center Press ", 2009. S. 30.
7 Spinoza B. Theological - political treatise / B. Spinoza // Selected works: In 2 volumes.Vol. 2.M .. 1957. P. 239.
8 Hobbes T. Works: in 2 volumes. M., 1991. S. 163.Vol. 2.
9 Ado A.V. Documents of the history of the Great French Revolution. In two volumes. T. 1.M .: Moscow State University, 1990.S. 216-227.
10 Novgorodtsev P.I. The right to a dignified human existence / P.I. Novgorodtsev; ed. M.A. Kolerov and N.S. Plotnikova // Works. M .: Rarity, 1995.S. 322.
11 Soloviev V.S. Justification of the Lobra / V.S. Soloviev; ed. A.N. Erygin and S.P. Lipova // Selected works. Growth.n / D: Phoenix, 1998.S. 522.
12 Kozlova E.I., Kutafin O.E. Constitutional law of Russia // Textbook. M .: Prospect, 2014.S. 233.
13 See: Resolution of the Constitutional Court of the Russian Federation of February 24, 2004 // Rossiyskaya Gazeta. 2004.2 March. (No. 3418). P. 7.
14 Zorkin V.D., Lazarev L.V. Commentary on the Constitution of the Russian Federation. M .: Norma; Infra-M, 2011.S. 18.
15 Zorkin V.D. Commentary on the Constitution of the Russian Federation. M .: Norma; Infra-M, 2011.S. 106.
16 Universal Declaration of Human Rights. Adopted by the UN General Assembly on December 10, 1948 // Rossiyskaya Gazeta. Federal issue No. 235. 1995
17 ILO Declaration "On Fundamental Principles and Rights at Work" (adopted in Geneva on June 18, 1998 at the 86th session of the ILO General Conference) // Rossiyskaya Gazeta. Federal issue No. 98-238. 1998 year
18 ILO Convention No. 29 "On Forced or Compulsory Labor" (adopted in Geneva on June 28, 1930 at the 14th session of the ILO General Conference. Ratified by the Decree of the Presidium of the USSR Supreme Soviet of June 23, 1956) // Vedomosti of the USSR Armed Forces. 1956. No. 12. Art. 253.
19 ILO Convention No. 105 "On the Abolition of Forced Labor" (adopted in Geneva on June 25, 1957 at the 40th session of the ILO General Conference. Ratified by the Federal Law of the Russian Federation No. 35-FZ of March 23, 1998) // SZ RF. 2001. No. 50. Art. 4649.
20 ILO Convention No. 111 “On Discrimination in Labor and Occupation (adopted in Geneva on June 25, 1958 at the 42nd session of the ILO General Conference. Ratified by the Decree of the Presidium of the USSR Supreme Soviet of January 31, 1961) // Vedomosti of the USSR Armed Forces. 1961. No. 6. Art. 58.
21 Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on 11/04/1950) // SZ RF. 2001. No. 2. Art. 163.
22 European Social Charter (revised) (adopted in Strasbourg on 03.05.1996) // Bulletin of International Treaties, 2010 No. 4. P. 17-67.
23 of the Labor Code of the Russian Federation of 30.12.2001 No. 197-FZ (as amended on 05.10.2015) // SZ RF. 2002. No. 1. Part 1. Art. 3.
24 Sadovnikova G.D. Commentary on the Constitution of the Russian Federation. M .: Yurayt, 2016.S. 56-57.
25 Universal Declaration of Human Rights. Adopted by the UN General Assembly on December 10, 1948 // Rossiyskaya Gazeta. Federal issue No. 235. 1995
26 Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on 04.11.1950) // SZ RF. 2001. No. 2. Art. 163.
27 International Covenant on Civil and Political Rights of December 16, 1966. Ratified by the Decree of the Presidium of the Supreme Soviet of the USSR dated September 18, 1973, No. 4212 ^ W // Bulletin of the Supreme Court of the Russian Federation. 1994. No. 12.
28 Law of the Russian Federation of 25.06.1993 No. 5242-1 "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation" (as amended on 28.11.2015) // Rossiyskaya Gazeta. Federal issue No. 152.1993
29 Resolution of the Government of the Russian Federation of July 17, 1995 No. 713 "On approval of the Rules for registration and removal of citizens of the Russian Federation from registration at the place of stay and at the place of residence within the Russian Federation and the list of persons responsible for receiving and transferring documents to registration authorities for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation "// SZ RF. 1995. No. 30. Art. 2939, SZ RF. 2002. No. 34. Art. 3294, SZ RF. 2008. No. 14. Art. 1412, SZ RF. 2010. No. 46. Art. 6024, SZ RF. 2011. No. 44. Art. 6282, SZ RF. 2012. No. 17. Art. 1986, SZ RF. 2014. No. 34. Art. 4667, SZ RF. 2015. No. 11. Art. 1601.
30 Universal Declaration of Human Rights. Adopted by the UN General Assembly on December 10, 1948 // Rossiyskaya Gazeta. Federal issue No. 235.1995
31 International Covenant on Civil and Political Rights of December 16, 1966. Ratified by Decree of the Presidium of the Supreme Soviet of the USSR dated September 18, 1973, No. 4212 ^ W // Bulletin of the Supreme Court of the Russian Federation. 1994. No. 12.
32 Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on 11/04/1950) // SZ RF. 2001. No. 2. Art. 163.
33 of the Civil Code of the Russian Federation. Part 1 of November 30, 1994 No. 51-FZ (as amended on July 13, 2015) // SZ RF. 1994. No. 32, 3301; Civil Code of the Russian Federation. Part 2 of January 26, 2006 No. 14-FZ (as amended on June 29, 2015) // SZ RF. 1996. No. 5. Art. 410.
34 FZ "On non-profit organizations" dated 12.01.1996 No. 7-FZ (as amended on 28.11.2015) // SZ RF. 1996. No. 3. Art. 145.
35 of the Federal Law "On Self-Regulatory Organizations" dated 01.12.2006 No. 315-FZ (as amended on 24.11.2014) // SZ RF. 2007. No. 49. Art. 6076.
36 Federal Law "On Public Associations" dated 05.19.1995 No. 82-FZ (as amended on 03/08/2015) // SZ RF. 1995. No. 21. Art. 1930.
37 Gadzhiev G.A. Economic Constitution. Constitutional guarantees of freedom of entrepreneurial (economic activity) // Constitutional Bulletin No. 1 (19), 2008. P. 251.
38 See: Bulletin of the Constitutional Court of the Russian Federation. 1999. No. 3.
39 Nudnenko L.A. Constitutional law. M .: Yurayt, 2016.S. 229.
40 Baglai M.V. Constitutional law of the Russian Federation. M .: Norma, Infra-M, 2015.S. 285.
41 Nudnenko L.A. Constitutional rights. M .: Yurayt, 2016.S. 126.
42 Sadovnikova G. D. Commentary on the Constitution of the Russian Federation. M .: Yurayt, 2016.S. 56-57.
