Financial and legal status of state corporations. Sergey Kuznetsov. The legal status of state corporations. Implementation of state policy, implementation of legal regulation, provision of public services and government administration

D. M. STRIKHANOVA

Moscow State Law Academy named after

ABOUT THE PUBLIC STATUS OF STATE CORPORATIONS

This paper analyzes the legal nature of state corporations within the framework of a new organizational and legal form. The possibility of the existence of legal entities of public law, which do not fit into any of the existing forms of commercial and non-commercial organizations, and the possibility of their appearance in Russian law are noted. Specific features inherent in them are indicated. It was revealed that state corporations are a type of legal entities of public law.

The creation of public corporations is based on a number of exceptions to the rules specific to legal entities, therefore each of the public corporations is unique in its legal status. This allows us to consider state corporations from the point of view of their legal form as a new organizational and legal form.

Thus, a state corporation is a legal form of a non-profit organization, which is created to perform socially significant, essentially state (public) functions. The founder of any state corporation is the state, that is, a subject that has public power and gives part of its powers to the organization being created. Consequently, public corporations are endowed with powers of authority, in particular, in regulatory and legal regulation, which is the exclusive prerogative of government bodies. However, it is important to note that they do not have constituent documents, the functions of which are performed by the law. Thus, legal entities of the same organizational and legal form act on the basis of different laws and according to different rules.

The publicity of the status of state corporations is also expressed in the fact that the property transferred by the Russian Federation into the ownership of the state corporation is used only for the purposes determined by the law providing for its creation, namely for social, managerial and other socially useful purposes. Thus, the state corporation is a qualitatively new organizational and legal form, which led to the emergence of a new form of ownership.

Taking into account all of the above, it is advisable to talk about the existence of such legal entities that do not fit into any of the existing forms of commercial and non-commercial organizations, that is, about the category of legal entities under public law. This category includes those legal entities that act on behalf of public law entities or in the public interest, but are not public authorities or local self-government bodies. Legal entities of public law are created to achieve various socially significant goals and can be endowed with powers of authority. They must have a strictly targeted legal capacity.

The current Russian legislation, unlike some European countries, does not know the category of “legal entity of public law”. In the legal doctrine, the discussion about the possibility of the appearance in Russian law of a special category of legal entities, namely legal entities of a public nature, has been conducted relatively recently. The main purpose of the creation and activity of such legal entities is "common affairs", "common good", "generally useful activity", for the achievement of which they use powerful methods. It is important to note that Russian legislation provides for the existence of legal entities performing public functions. Examples of such legal entities include: the Central Bank of the Russian Federation, the Pension Fund of the Russian Federation, the Social Insurance Fund, the Mandatory Medical Insurance Fund, and military units of the Armed Forces of the Russian Federation.

Scientists adhere to different concepts of a legal entity regarding its industry affiliation and therefore define the structure of a legal entity of public law in different ways. Some authors, mainly civilians, adhere to the sectoral concept of a legal entity. They note that the structure of a legal entity was born by the needs of property (civil) turnover and is not an intersectoral, but a civil legal category. Civilists mentioned legal entities of public law mainly when analyzing foreign legislation. Thus, he pointed out that when “bourgeois codes establish certain provisions on legal entities of public law, they approach them as participants in civil circulation, that is, as carriers of civil legal capacity, in other words, as legal entities of civil rights" . He defended the same position. Other authors support the idea of ​​a cross-sectoral concept of a legal entity. Supporters of the cross-sectoral concept of a legal entity believe that it can be used by any branch of law to designate a legal entity other than an individual.

However, by studying the nature of legal entities of public law, it is possible to identify the general specific features inherent in them, based on which state corporations are a type of legal entities of public law, namely:

1. A legal entity of public law is a public entity, the purpose of which is not to carry out entrepreneurial activity, but to solve problems of a public, social nature. State corporations are created to achieve any socially useful goal, including for the performance of managerial functions.

2. These persons are always associated with public power: they either exercise it, or cooperate with it, or constitute the source of such power. Legal entities of public law to a certain extent perform functions of a managerial nature.

3. Legal entities of public law are a group of legal entities, heterogeneous in organization and legal status, which are united by one goal - they are created to perform public functions. Consequently, their organizational and legal forms are different from ordinary legal entities. State legal entities of public law are created in the organizational and legal form of budgetary institutions or state corporations.

4. The procedure for their creation is very different from the procedure for creating other legal entities. Thus, state corporations were established in an administrative order on the basis of federal laws of the Russian Federation. Thus, they are created as a result of power measures, and not on the basis of amalgamation of members, like traditional corporations. Also, state corporations do not have constituent documents, they are not subject to the rules on licensing certain types of activities.

5. Legal entities under public law may have a system of governing bodies similar to the system of bodies of a regular commercial organization. However, the approach to their formation is different, since assignability, subordination, and strict delimitation of competence dominate here. The state is directly involved in the formation of the supreme governing bodies of state corporations and the appointment of their sole executive bodies.

6. These legal entities, as a rule, are endowed with property and can be financed from the budget. All state corporations have property on the basis of ownership, which they need to carry out their professional activities. Such a right is granted to them by federal laws on their creation. Some of them may receive budgetary funds, but on a one-off basis, and not on a permanent basis.

7. The liability of such legal entities is most often of a public nature. The legislation does not establish special forms of public liability of state corporations. However, such responsibility is not established in relation to federal ministries, federal services and agencies, which are public law entities. At the same time, the legislation establishes, instead of the special responsibility of such persons, personal responsibility, for example, the minister for the implementation of the powers assigned to him. In practice, a minister who has not justified trust is dismissed by the President of the Russian Federation from his post. Liability applies in a similar manner to officials of public corporations.

Thus, state corporations are a type of legal entities of public law along with executive authorities (ministries, federal services and agencies). In this regard, it is necessary to understand the reasons for the refusal of the state from the traditional organizational and legal forms in which it has the right to create legal entities, and the need to create state corporations. Until recently, the state created legal entities in the form of a budgetary institution or a state (municipal) unitary enterprise. However, a budgetary institution and a state unitary enterprise are not in a position to quickly solve the problems arising in the implementation of their activities, since their powers to dispose of property are severely limited. So, state property in accordance with paragraph 1 of Art. 296 of the Civil Code of the Russian Federation is assigned to the institution on the basis of the right of operational management. According to Art. 161 of the Budget Code of the Russian Federation, the conclusion and payment by a budgetary institution of state (municipal) contracts and other contracts subject to execution at the expense of budgetary funds is made within the limits of budgetary obligations brought to it and taking into account the accepted and unfulfilled obligations. In the event that the budgetary institution's main manager of budgetary funds decreases the previously announced limits of budgetary obligations, leading to the impossibility of fulfilling the budgetary institution's budgetary obligations arising from the state (municipal) contracts (other agreements) concluded by it, the budgetary institution must ensure that new terms are agreed upon, and if necessary, and other conditions of state (municipal) contracts (other agreements).

The rights of a state unitary enterprise to dispose of the property assigned to it on the basis of the right of economic management are also severely limited by the Federal Law “On State and Municipal Unitary Enterprises”. A state unitary enterprise has the right to dispose of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, goals, subject, the types of which are determined by its charter. Transactions made by a state unitary enterprise in violation of this requirement are void. It is not entitled, without the consent of the owner, to sell the immovable property belonging to him, lease, pledge, contribute as a contribution to the authorized (joint-stock) capital of a business company or partnership, or otherwise dispose of such property. Due to the above reasons, the considered organizational and legal forms of legal entities turned out to be less effective for the state both for the purpose of its participation in civil circulation and for solving managerial problems, and were gradually squeezed out by state corporations.

In 2007, 6 large state corporations were created, which must solve the tasks assigned to them much faster than other state legal entities, whose activities are complicated by various prohibitions. However, in accordance with the message of the President of the Russian Federation to the Federal Assembly of 2009, the state corporation is viewed as a hopeless form. Based on this, corporations that have a legal time frame for work should be liquidated at the end of their activities, and those that operate in a commercial environment should be transformed into joint stock companies. However, it is important to revise not only the legislation on public corporations, but also the legislation on public legal entities in order to detail the conditions and principles of their activities and avoid gaps in legislation.

BIBLIOGRAPHY

1. , Legal entities in modern Russian civil law // Bulletin of civil law. 2006. T. 6.No. 1.

2. State socialist property. M., 1948.

3. State monopoly capitalism and a legal entity. Selected Works. Moscow: Statut, 1997.

4. Legal entity under public law. M .: Norma, 2007.

5. The Civil Code of the Russian Federation: part one of 01.01.2001 // Collected Legislation of the Russian Federation, 05.12.1994, No. 32, art. 3301.

6. The Budget Code of the Russian Federation as amended by dated 01.01.2001. // Collected Legislation of the Russian Federation, 03.08.1998, No. 31, Art. 3823.

7. Federal Law of 01.01.2001 "On State and Municipal Unitary Enterprises" // Collected Legislation of the Russian Federation, 02.12.2002, No. 48, Art. 4746.

Agapov Andrey Borisovich - Doctor of Law, Professor of the Moscow State Law Academy, member of the Academic Council of the Center for Public Law Research.

State corporations are special public non-profit organizations with significant property rights. Public status of state corporations<1>due to their special relationship with the executive authorities and other public authorities.

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

The special status of a corporation is predetermined by its legal status; of all forms of non-profit organizations, only state corporations and autonomous institutions are established by the state - the Russian Federation<1>... Consider the most important components of the public status of corporations. As already mentioned, in the field of legal regulation, the status of corporations is established by federal laws, however, it is necessary to take into account the following features of the status of such federal laws: statutory federal laws determine the competence and organizational and legal forms of corporations<2>... With regard to each of them, a statutory federal law is adopted, establishing its functions and powers, types of legal relations with executive authorities, and the property status of the corporation. The statutory federal law always dominates in the system of federal laws governing the activities of corporations: in the event of conflicts of its prescriptions with the prescriptions of other federal laws, the statutory federal law shall be applied, which establishes when and in what cases other federal laws may be applied<3>... In cases established by statutory federal law, the organizational forms of activity of a state corporation may be determined by a special federal law, acting along with the statutory federal law. Special federal laws may establish, for example, the procedure for using the property of a state corporation during its reorganization or liquidation, the timing of these organizational measures<4>.

Application of federal legislation on banks and banking activities to the Development Bank is possible only in cases established by parts 2, 3 of Art. 4 of the Federal Law "On the Development Bank".

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

The scope of application of ordinary federal laws is limited to individual regulations, for example, the foundations of the public status of state corporations are determined by Art. 7.1 of the Federal Law of January 12, 1996 N 7-FZ "On Non-Commercial Organizations" (as amended by the Federal Law of July 8, 1999 N 140-FZ). Ordinary federal laws are applied in the areas established by statutory federal laws, for example, clause 3 of Art. 17 of the Federal Law of May 12, 2007 N 82-FZ "On the Development Bank" it is provided that the state registration of the Development Bank as a special type of state corporation is regulated by the Federal Law of August 8, 2001 N 129-FZ "On state registration of legal entities and individual entrepreneurs ". Thus, in relation to the specified state corporation, it is possible to use the prescriptions of an ordinary federal law.

By-laws governing the activities of state corporations mainly include decrees of the Government of the Russian Federation<1>... Normative legal acts of federal executive bodies are applied only in cases specifically provided for by the federal laws under consideration, decrees of the President of the Russian Federation or decrees of the Government of the Russian Federation.

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

The interaction of corporations and public authorities in the administrative sphere arises at the time of the completion of organizational activities related to the establishment of corporations. Such measures include the payment by a public authority of a property contribution in the form of real estate, public funds, technical support. The public property contribution forms the basis of the authorized capital of the corporation. At subsequent stages of activity, i.e. after the completion of all measures stipulated by the establishment of the corporation, the basis of its property status is the income received from the implementation of its statutory activities in the management of public finances, the implementation of investment projects and other socially significant functions. As a general rule, the completion of the above organizational measures is determined by the termination of public procedures, which include the state registration of a corporation as a legal entity and the subsequent formation of its governing bodies. Statutory federal law may establish other public procedures, in the implementation of which the corporation is fully vested with the powers of a state non-profit organization<1>... Registration procedures related to the creation of corporations as a public legal entity precede other organizational measures (for example, the formation of its sole and collegial management bodies); registration procedures are carried out by the Federal Registration Service and are completed at the time of the issuance of the certificate of state registration<2>.

Thus, the state corporation exercises its powers of the subject of public relations at the time of initiation of registration relations, however, the corporation is vested with property and other powers in full after the completion of all public procedures determined by the statutory federal law<1>.

Organizational procedures take place at the stage of forming the governing bodies of a state corporation, their competence is determined by statutory federal law. The types of governing bodies of a corporation are determined by its purpose, however, some unified features can be noted for all state corporations. Executive authorities or other public bodies establish the forms of their representation in the collegial management bodies of the corporation - in the supervisory board, board or other bodies determined by federal law. The status of a corporation, in contrast to other types of non-profit organizations, is established by federal law, acts of executive authorities and other public bodies. Requirements of Art. 52 of the Civil Code of the Russian Federation on the adoption of the charter as a special constituent document in this case does not apply<1>.

The tasks, functions and powers of collegial bodies are established by regulations and other internal regulations approved by such bodies.<1>... The procedure for convening and holding meetings of collegial bodies, as well as the procedure for making decisions by them, are determined by the regulations; these normative legal acts are applied in order to streamline the internal organizational activities of the corporation and do not apply to constituent documents<2>... The public interests of the state always dominate the decisions made by the collegial governing body of the corporation.

The state, represented by its representatives in collegial bodies, controls the activities of the chairman or other senior official of the corporation. The procedure for the appointment of the chairman of the corporation and his dismissal from office is determined by federal law. With regard to the Development Bank, the relevant powers are assigned to the jurisdiction of the head of state. The chairman of the corporation is its sole executive body, in his activities he is guided by the decisions of collegial bodies. The procedure for the relationship between the chairman of the corporation and the corresponding collegial body is determined by the regulation on the supervisory board or other internal acts of the corporation, which establish the responsibility of the chairman of the corporation.<1>.

Thus, the chairman of the corporation is under the control and accountability of the collegial body and is obliged to implement the decisions made by him. Thus, the public interests of the state, represented in the corporation by officials of the executive authorities who are members of the supervisory board (board of directors) and the board of the state corporation, are also realized. National interests always dominate corporate interests, this is confirmed by the dominant role of the supervisory board (board of directors) of a state corporation in the system of its governing bodies: it is the councils as special collegial bodies, which include representatives of public authorities, who always constitute the majority of the council members, determine the daily policy activities of the board<1>.

National interests determine the property status of the corporation. All state corporations, in accordance with the status of a non-profit organization, carry out activities for its intended purpose - in the forms established by the federal law on the creation of a state corporation<1>... The state endows corporations with special property rights and obligations, such relations are conditioned by the policy of state protectionism. Public patronage of the activities of corporations provides for the transfer of certain state and power powers to them, as well as the provision of special benefits and advantages to them that are absent from other participants in commercial activities. The interests of the Russian Federation in relations with state corporations are represented by the Government of the Russian Federation, federal executive bodies, the Bank of Russia, other public bodies and their officials.

Corporations are delegated certain public powers in the forms and scope that are established by statutory federal law. For example The Development Bank has the right to provide government guarantees to Russian and foreign commercial organizations (including banks), along with them, the Development Bank issues its own bank guarantees to participants in foreign trade activities<1>... The Development Bank acts on behalf of the Russian Federation in interstate financial relations, in particular in relations arising from the provision of loans and borrowings by a foreign state to the Russian Federation, and makes settlements on behalf of the Russian Federation on such loans and borrowings<2>.

The relations of public authorities with corporations are based on the principle of public-private partnership, in accordance with which the corporation recognizes the dominant role of national interests in relations with a public authority. The corporation participates in the implementation of federal target programs and state investment programs (including foreign economic ones), guided primarily by the public interests of the state along with corporate interests<1>... Regulatory legal acts of the Government of the Russian Federation are of particular importance in regulating the property rights of a corporation. For example, in relation to one of the largest state corporations - the Development Bank, the Government of the Russian Federation approves the main directions and indicators of investment and financial activities<2>.

State protectionist policy is due to the importance of corporations in socially-priority areas. With regard to the Development Bank, one of the largest banks in the Russian Federation in terms of capitalization, the state assumes special property obligations. The Government of the Russian Federation, being the guarantor of the property stability of the state corporation, has the right to make a decision to increase the property contribution at the expense of the federal budget or to provide the Development Bank with other public property (for example, real estate)<1>... The property contribution can be increased by providing the corporation with more than traditional property items. In this capacity, special property rights and obligations can also act, including the right to claim, debts, obligations to pay payments. As public property, alienated in this case, are property complexes, movable and immovable property of federal state institutions and other property objects that are in federal ownership.<2>... Thus, property relations between the state and the corporation arise at the time of the formation of its authorized capital; they are continuous, stable and sustainable throughout the entire business of the corporation. Acting as one of the types of non-profit institutions, the corporation is an extraordinary subject of private law relations. Corporations can be created in the form of banks, agencies<3>, in some cases, they may be vested with the powers of federal unitary enterprises and act in entrepreneurial activity as a public commercial organization<4>... In any case, the status of a corporation is established by a special federal law, which endows it not only with special property powers, but also with special public rights in relations with executive authorities and other state bodies. For example, the Development Bank Corporation is a special credit organization, its powers in the field of banking are determined by special federal laws and, in any case, differ from the property powers of commercial banks, to which banking legislation is applied without restrictions<5>.

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

• in the implementation of licensing and permissive rules, corporations-licensees are obliged to comply with the requirements established by the licensing authority, in particular when such a body carries out licensing control measures<1>... In accordance with the status of a corporation established by federal law, it is subject to general requirements determined by federal licensing laws, or special requirements established by federal law apply to a corporation. For example The Development Bank carries out banking operations in accordance with the Federal Law "On the Development Bank", the general licensing requirements established by Art. 13 of the Federal Law "On Banks and Banking Activities" are not applied in this case;

• in the field of commercial activity, the powers of a state corporation are limited in the interests of meeting national needs. The profits of a state corporation can be used in agreement with a public authority established by federal law. As a rule, such profits can be used with the consent of the supervisory board or other collegial body representing the interests of the state.<1>.

The state corporation exercises its powers on the basis of a combination of internal and external forms of management. The actual corporate forms of management include legal acts adopted by collegial bodies - the supervisory board, the management board and other collegial bodies, for example, internal financial control bodies - the audit commission, the internal control service, the internal audit service<1>... Collegial bodies adopt decrees, decisions and other legal acts provided for by the internal regulations of the respective corporation. Acts adopted by a special body for public representation of the interests of the Russian Federation - the supervisory board, the board of directors, dominate the system of corporate legal acts. Such acts approve decisions of the board or the sole executive body, if they provide for a change in the property status of the corporation. The public representative body approves the regulations on structural divisions of the corporation apparatus, regulations on branches and representative offices and other statutory acts developed by the board of the corporation<2>... The statutory acts adopted in these cases are intended for repeated application, are mandatory for all employees of the corporation and meet other criteria for regulatory legal acts, however, unlike them, statutory acts of the corporation are subject to application only in the system of governing bodies created by it.

The status and competence of special collegial management bodies are determined by the purpose of the state corporation, established by federal law. In accordance with the Federal Law of July 19, 2007 N 139-FZ "On the Russian Corporation of Nanotechnologies", it is provided for the creation of audit commissions - a special body of internal financial control, acting along with an external audit organization, which is responsible for checking accounting and financial statements corporations (including control over the reliability of the relevant financial indicators). On the relationship between the powers of internal and external financial control, see h. 2, 3, Art. 8, Art. 18 of the Federal Law "On the Russian Corporation of Nanotechnologies".

The creation of special internal financial control bodies may not be provided for in other corporations (see Articles 12, 13 of the Federal Law of July 21, 2007 N 185-FZ "On the Fund for Assistance to the Reform of the Housing and Utilities Sector").

The sole executive body of the corporation (CEO, chairman, etc.) takes orders and orders. Their legal force is due to the hierarchy and subordination of the executive body in the corporate governance system: such acts are adopted in accordance with the decisions of the collegial body and cannot contradict them. The methods of management activities of the sole body, in addition to the adoption of acts, include the representation of the interests of the corporation in transactions. Transactions made by the executive body on behalf of the corporation, entailing a change in its property status, are subject to approval by the supervisory board or other body of public representation (these include the so-called major transactions, the criteria of which are established by federal law, and in cases expressly provided for by it - also by regulation<1>). The chairman (CEO) of the corporation is its highest official and heads the board of the corporation.

Internal financial control bodies (audit commission, internal audit service, internal control service) provide internal audit in the corporation and are subordinate to the public representative body (supervisory board, board of directors, etc.), to which they are accountable<1>... Internal financial control is carried out independently of an external audit carried out by an audit organization independent of the corporation. The acts of internal financial control bodies are conditioned by the content of their control powers, for example, such bodies make decisions on carrying out extraordinary audits of financial and economic activities. The conclusions adopted by the internal financial control body based on the results of the audit are sent to the higher body - the supervisory board, the board of directors<2>.

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

The status of a corporation excludes interference of state authorities in its economic activities, with the exception of cases directly specified in the federal law on the creation of a corporation<1>... The legislation regulates the following cases of direct public interference in the activities of state corporations.

In the field of personnel policy, the jurisdiction of the Government of the Russian Federation includes the powers to form a special body of public representation (supervisory board, board of directors, and others). The Government of the Russian Federation appoints to office and dismisses from office the officials who make up such a body. The Government of the Russian Federation dominates in the activities of the public representative body, determining the status of all its members (for example, in the case of the Supervisory Board of the Development Bank<1>), or is guided by the quota of its participation in the formation of such a body. For example, in the supervisory boards created in the Russian Corporation of Nanotechnologies, in the Fund for Assistance to Reform of Housing and Utilities Sector and in the Board of Directors of the Deposit Insurance Agency, the Government of the Russian Federation participates in the formation of such bodies on a parity basis in accordance with the quotas of its representation, determined by the relevant statutory law<2>... In these cases, the Government of the Russian Federation appoints members of the Supervisory Board along with the President of the Russian Federation, the chambers of the Federal Assembly and other public bodies (for example, the Bank of Russia, the Public Chamber of the Russian Federation<3>).

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

The public representative body (supervisory board, board of directors, etc.) determines the fundamentals of investment and financial activities of the corporation, including authorizing large property transactions<1>... Thus, a corporation, when carrying out entrepreneurial activities, does not have the right to invest funds, guided by the mechanism of the market situation - national public needs always dominate corporate interests. The objects of investment of the profits received by the corporation are directly indicated by the federal law on its creation, and in some cases the use of profits is provided only in accordance with the national interests<2>... State corporations, the purpose of which is to finance socially-priority projects for the development of industry, applied science or sectors of housing and communal services, ensure control over the targeted spending of funds, and in case of violations, they have the right to suspend funding, while the violator is sent a request to eliminate the identified violations<3>... Failure to fulfill the submission or its improper fulfillment (for example, if the deadlines specified in it are violated) entails the termination of funding<4>.

Public corporations, like other commercial entities, have responsibilities arising from the conduct of public control measures. Corporations are obliged to comply with the requirements of officials when conducting environmental, licensing, sanitary, tax, and customs control. In particular, they are obliged to provide documented information at the request of the regulatory authorities during office inspections, or to provide access for officials of such authorities to office premises during field inspections. State corporations are subject to financial control only in cases directly established by laws, in particular, this is provided for during an external audit and control over the financing of investment projects. Since corporations are recipients of budgetary funds, when forming their authorized capital, as well as when allocating additional public funds to them (for example, in the form of an additional property contribution), they are obliged to fulfill informational and other obligations due to budgetary control by the Accounts Chamber of the Russian Federation. All corporations are obliged to comply with the requirements when implementing investment projects, as well as when concluding transactions in cases established by federal legislation on combating money laundering and terrorism financing.

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

Internal financial control measures are always carried out at the initiative of the relevant corporate body - the supervisory board (board of directors) or a supervisory body subordinate to it (internal audit services, audit commissions, and others). In contrast to such measures, audits of the financial and economic activities of a corporation may be subject to the decision of a special public body. Special divisions of the corporation that provide internal control are created in order to check the procedure for the use of budgetary funds, and in these cases, control measures are carried out on the initiative of the Accounts Chamber of the Russian Federation or the Federal Service for Financial and Budgetary Supervision, which is under the jurisdiction of the Ministry of Finance of Russia. With regard to the Development Bank and other corporations engaged in banking activities, internal control measures are initiated by the Bank of Russia, the procedure for their implementation is established by the regulatory legal acts of the Bank of Russia.

Internal financial control is carried out in the central offices of corporations, in their branches and representative offices (including those created abroad) by the governing body of the corporation or special structural units - internal control (audit) services, audit commissions subordinated to the public representative body - the supervisory board, the board of directors ... Such a body directly controls the investment activities of corporate collegial bodies (boards, etc.), as well as their officials. He has the right, for example, to reject a decision to conclude a major transaction made by an official of the corporation. The public representative body carries out internal financial control directly or carries out control measures in indirect forms, for example, in cases where the internal audit service conducts an unscheduled audit of accounting records on behalf of the supervisory board.

A special form of internal control is the verification of the corporation's compliance with the requirements established by federal anti-money laundering legislation. Internal control measures carried out by the corporation in these cases include the submission of documented information on transactions with financial resources and other property to the Federal Service for Financial Monitoring (FSFM) in accordance with the above legislation. This information is confidential and is provided by the corporation regardless of the FSFM's request. As a rule, information on corporate financial activity that meets the criteria established by federal law is submitted to the FSFM immediately after the conclusion of a property transaction or in other cases, for example, if the corporation has information about the possible illegality of a property transaction. Thus, the measures of internal financial control carried out in these cases include not only the provision of documented information, but also the implementation of preventive measures by the corporation to prevent or suppress illegal activities. For these purposes, corporations create special structural divisions, hire specialists who meet the established qualification requirements, acquire the appropriate means of material and technical support, and carry out other actions associated with the expenditure of corporate finance.

These internal financial control measures apply to state corporations created in the form of credit or insurance organizations (for example, the Development Bank or the Deposit Insurance Agency) that provide intermediary services in the sale and purchase of real estate or receive cash from individuals<1>... It is these legal prerequisites for internal control that are among the most common, since statutory federal laws on state corporations provide for them to receive voluntary property contributions and donations as one of the essential sources of corporate property formation.<2>or, in any case, do not exclude the fact of their receipt when this is not directly provided for by the relevant statutory federal law<3>.

Along with the measures of internal financial control carried out by the corporation in cases stipulated by the federal legislation on combating money laundering, external financial control measures are also envisaged, including conducting field and office audits of the corporation's compliance with its internal financial control obligations. External financial control is carried out by federal executive bodies in accordance with their competence or directly by the FSFM or its territorial body<1>... External financial control is a particular type of external control, attributed to the jurisdiction of federal executive bodies or carried out by law enforcement or special public bodies - the Bank of Russia and the Accounts Chamber of the Russian Federation.

Thus, state control is carried out on the basis of a combination of external public control measures attributed to the jurisdiction of licensing, customs and other law enforcement agencies, as well as internal control measures carried out by the supervisory board or other body for public representation of the state's interests created in the corporation.

The legal prerequisite for bringing a corporation to legal responsibility is that it has committed an offense as a legal entity or that a corporate executive has committed an offense. With regard to such offenses, it is customary to distinguish, respectively, corporate and individual measures of public responsibility.

Measures provided for by the Code of Administrative Offenses of the Russian Federation, budgetary and tax legislation can be taken against a state corporation that violates the requirements established by law. Corporate liability measures applied to the violating legal entity include administrative penalties, budgetary or tax sanctions. The most common types of corporate sanctions include monetary penalties in the form of administrative fines, applied in the commission of administrative offenses, or in the form of tax sanctions, applied in cases established by Ch. 16, 18 of the Tax Code of the Russian Federation, or in the form of budgetary sanctions provided for in Art. 282 BC RF.

Corporate liability in cases provided for by tax and budgetary legislation applies to a legal entity performing established fiscal or budgetary obligations. In terms of content, such obligations are always conditioned by the payment of a public payment or the earmarked spending of public finances (i.e., they are financial obligations). Corporate responsibility measures applied to a legal entity as a result of an administrative offense may be caused not only by the corporation's failure to fulfill financial obligations or their improper performance, but also by the fact that state corporations are obliged to comply with information obligations related to the conduct of public control measures carried out by tax and customs authorities , the FSFM or other law enforcement agencies. Failure to fulfill information duties in these cases is qualified under Art. 19.7 of the Administrative Code of the Russian Federation, and in relation to special types of documented information - according to h. 1, 2, Art. 19.7.1, Art. Art. 19.7.2 and 19.8 of the Administrative Code of the Russian Federation. Failure by a corporation to fulfill its information obligations established by the legislation on combating the legalization of proceeds from crime and the financing of terrorism is qualified under Art. 15.27 Administrative Code of the Russian Federation<1>.

Corporate responsibility can also be due to the organizational and legal form of a state corporation. Corporations established in the form of banks are charged with administrative offenses established by Art. 15.26 of the Administrative Code of the Russian Federation, or tax offenses under Art. Art. 132 - 135.1 of the Tax Code of the Russian Federation. In the above cases, corporate responsibility arises as a result of failure to fulfill the information obligation to a specific controlling body, and in relation to Art. 15.27 of the Administrative Code of the Russian Federation - before the FSFM. Such obligations are established by federal laws, and in cases expressly provided for by them, also by a departmental regulatory legal act (for example, by acts of the FSFM), and in relation to banking organizations - by a regulatory act of the Bank of Russia (see article 15.26 of the Administrative Code of the Russian Federation).

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

The liquidation of a corporation and its procedure are not conditioned by civil law, but exclusively by public preconditions established by federal law. Thus, the liquidation procedure is determined by a special federal law, which operates along with the statutory law on the establishment of a corporation. The legal prerequisites for the liquidation of a corporation are determined in statutory federal law in cases where corporations are created to carry out socially-priority activities limited by the period established by such law, after which the powers of the corporation are terminated and the procedure for its liquidation comes into force<1>... With regard to state corporations operating on a permanent basis, the liquidation procedure is determined by a special federal law.

The use of measures of power coercion, as a rule, is conditioned by the commission of an offense, however, such measures can be applied in order to prevent or investigate an offense. The initiation of cases of administrative offenses, for example, in the cases of non-fulfillment of information obligations by a corporation considered above, is a legal prerequisite for the application of administrative measures in the form of an inspection of corporate office premises and the seizure of things and documents found during the inspection (see Articles 28.7, 29.10 Administrative Code of the Russian Federation). Such measures are applied at the procedural stages of proof and can be applied to a bona fide organization whose guilt will not be established when considering an administrative offense case.

Individual responsibility of officials of a state corporation occurs regardless of the bringing to public responsibility of the violating organization. Thus, in relation to the same misconduct, signs of corporate and individual offense can be simultaneously revealed, which can be imputed to the violating organization and its leading official. Individual public responsibility includes local, disciplinary and administrative responsibility. The differences in the types of liability are primarily due to the status of the deed of title. Local responsibility is established by the federal law on the establishment of a corporation and internal (local) regulatory legal acts adopted in accordance with it by the corporate collegial body. Such acts include regulations on the governing bodies of the corporation, adopted by the supervisory board (board of directors) or other body of public representation. The regulations establish the types of sanctions applied to the sole executive body - the chairman, CEO or other senior corporate official<1>... Such a person acts solely in the corporate interests. Any managerial decision made by such a person (issuance of a legal act, conclusion of a transaction, etc.) is due to corporate needs that dominate the personal interests of the respective manager.<2>... If a conflict of interest arises, the head of the corporation is obliged to notify the relevant collegial body of the corporation (in accordance with the regulation on such a body) prior to making a decision on the merits.

One of the types of responsibility of the senior executive of the corporation is the early termination of his powers. In addition to the provisions on the governing bodies of the corporation and the provisions on the structural divisions of such bodies, the corporation adopts other local regulations establishing the rules of conduct for its employees (internal regulations and others). Failure by an employee of the corporation to comply with such rules is considered a disciplinary offense and will result in the application of disciplinary action in the form of a remark, reprimand, or dismissal. The application of other types of penalties, in addition to the three mentioned, is possible only in cases provided for by the federal law on the establishment of a state corporation. The disciplinary responsibility of employees of the corporation is determined by the above local regulations, however, the rules established by them do not apply to officials who are members of the supervisory board, board of directors and other body of public representation, in cases where such persons are civil servants. They are subject to the rules of disciplinary proceedings established by the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation", other federal laws - in relation to persons undergoing law enforcement or military service. Termination of the service relationship of a member of the supervisory board (board of directors) in the event of his dismissal from public service does not entail the termination of his powers. Such persons may be subject to sanctions in the form of early termination of the powers of a member of the supervisory board (board of directors) in accordance with the procedure established by the statutory federal law on the establishment of a corporation. In relation to officials appointed to the supervisory board (board of directors) by the President of the Russian Federation, the Government of the Russian Federation, the chambers of the Federal Assembly, the Bank of Russia, the Public Chamber of the Russian Federation and other public bodies in accordance with the quota established by federal law, special rules for their early recall are applied.<1>... Such a decision can be made by a public body represented in the supervisory board (board of directors), and it also appoints new members to replace those withdrawn. In some cases, the decision to early terminate the powers of members of the supervisory board (board of directors) is taken by the federal government on its own initiative or on the basis of a submission from the relevant public body<2>.

Administrative responsibility of officials included in the collegial body of the corporation, or employees of its structural divisions, its staff, as well as employees of branches and representative offices created by the corporation on the territory of the Russian Federation, is due to their improper performance of information and other duties established by federal law<1>... In particular, failure to provide information in cases established by Art. Art. 15.27, 19.7, h. 1, 2 of Art. 19.7.1, Art. Art. 19.7.2, 19.8 of the Code of Administrative Offenses of the Russian Federation, qualifies as an appropriate administrative offense and entails a sanction in the form of an administrative fine applied to an official regardless of whether the violating organization is brought to corporate responsibility, i.e. in relation to the same misconduct, the violating organization and its guilty official can be held liable (see part 3 of article 2.1 of the Code of Administrative Offenses of the Russian Federation)<2>... Public liability measures established by budgetary and tax legislation, as well as disciplinary sanctions are applied along with administrative penalties.

In relation to this text, only misconduct is considered due to the improper performance by a corporation official of his public duties. In cases not related to the performance of such duties, for example, when committing offenses that infringe on public order and public safety, such persons bear administrative responsibility established by the sanction of the corresponding article of the Special Part of the Code of Administrative Offenses of the Russian Federation for citizens.

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

a) in the organizational and legal form of a state corporation, only large economic entities with a significant amount of capitalization are created. For example, the authorized capital of the Development Bank exceeds 70 billion rubles, the amount of the public property contribution provided to the Fund for Assistance to the Reform of the Housing and Utilities Sector is 240 billion rubles, the amount of public finances provided to the Agency for Restructuring of Credit Institutions amounted to 3 billion rubles. (December 2003 prices)<1>;

b) executive authorities and other bodies ensure the property autarky of state corporations, transferring them budget funds, public real estate objects, material and technical support and other public property as a property contribution<1>;

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

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

e) executive authorities and other state bodies delegate to corporations public powers in the implementation of federal target programs and state investment programs. Corporations provide government guarantees to commercial organizations, provide and repay government loans and borrowings, exercise other public powers established by federal laws<1>... The commercial potential of a state corporation is secured by property and legal support from public authorities. Thus, the financing of social priority programs by a corporation is an indirect form of distribution of public finances for national purposes.<2>.

State corporations, along with government bodies, participate in the implementation of the state's socio-economic policy.

UDC 342.951 BBK 67.401.01

PECULIARITIES OF THE LEGAL STATUS OF STATE CORPORATIONS AND STATE COMPANIES

TATIANA ALEXEEVNA LAKHTINA,

Senior Lecturer of the Department of Administrative Law of the Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot,

Candidate of Legal Sciences E-mail: [email protected]

Scientific specialty 12.00.14 - administrative law; administrative process

Reviewer: Candidate of Legal Sciences G.N. Vasilenko

Citation index in the NIION electronic library

Annotation. The characteristic of the legal status of state corporations and state companies is given. The article considers the criteria for distinguishing public companies from other non-profit organizations, as well as from commercial organizations established by the state. It is proposed to use the features of their administrative legal status as additional criteria for classification.

Key words: state corporation, state company, public companies, public functions, public legal entity.

Abstract. The article describes the legal status of state corporations and state-owned companies. The criteria for distinguishing public-law companies from other non-profit organizations, as well as commercial organizations established by the state. Available as an additional criteria for the classification of the interactive features of their administrative legal status.

Keywords: state corporation, state-owned company, public-law companies, public function, a public entity.

The history of the creation of state corporations goes back to 2001, when the first of them, the Agency for Restructuring of Credit Organizations (ARCO), was created. In 2003, the State Corporation "Deposit Insurance Agency" 1 became the legal successor of ARCO. In 2007, the following were established: State Atomic Energy Corporation “Rosatom” 2, State Corporation “Rostec” 3, State Corporation “Bank for Development and Foreign Economic Affairs (Vnesheconombank)” 4, State Corporation - Fund for Assistance to Reform of Housing and Utilities Sector5, State Corporation on the construction of Olympic facilities and the development of the city of Sochi as a mountain climatic resort, which ceased to exist in connection with the liquidation in 20156, and was later transformed into a shareholder

ny society Russian corporation of nanotechnology 7. In 2015, Federal Law No. 215-FZ8 dated July 13, 2015 “On the State Corporation for Space Activities“ Roscosmos ”established the State Corporation for Space Activities“ Roscosmos ”(State Corporation“ Roscosmos ”).

Also in 2009, the first and, at present, the only state-owned company, Russian Highways, was established 9.

Their appearance is obviously due to the economic processes taking place in the state, where the state seeks to rationally use its property, ensure its effective management, as well as achieve certain socially significant goals by transferring the management of this property, as well as delegating certain public functions to specially created

for the implementation of the assigned tasks to organizations.

At the same time, the legal status of such organizations in economic circulation, the possibility of disposing of property (contributed to the authorized capital or transferred to management) in combination with some public functions of these organizations do not fit into the framework of those organizational and legal forms of a legal entity that were adopted in the domestic civil doctrine and civil law before the emergence of such organizations. Socio-economic and political realities outstripped the doctrine and demanded the creation of entities with a specific organizational and legal form that met the needs of the state and was not reflected in the legislation in force at that time.

The current gradation of artificial subjects of law, which are legal entities, is focused on various options for managing property and carrying out economic activities. But the activity of these subjects is not limited only by participation in economic relations. Being, on the one hand, economic entities, they can perform publicly significant functions. They take upon themselves, for example, the burden of providing the population with water, even if this activity is a priori unprofitable; they participate in educational activities, raising children, and providing medical services. For these purposes, as a rule, unitary enterprises or institutions are created.

Moreover, some of these entities assume partial fulfillment of state functions. So, in particular, during the entire period of its existence, with the exception of the latter, the management of atomic energy was carried out by the state. At present, this function is carried out by the state corporation "Rosatom", which, being an economic entity, takes on part of the state's functions in this area.

The number of such organizations is growing. They are created on the basis of federal law, which emphasizes their uniqueness and exclusivity.

Let us dwell separately on the legal structure called "state company". What is the reason for the need for the state to establish another organizational and legal form, if there are state corporations, joint stock companies with 100% state participation? It is necessary to justify its existence. Article 7.2. Federal Law "On Non-Commercial Organizations" 10 characterizes a state company as created to provide state services and perform other functions using state property on the basis of trust management. But is this really the essential difference between a state company and, for example, a state corporation?

The state corporation in a veiled form implements the system of property management, which is accepted in the common law system and is called "trust", that is, a relationship of trust, which, as it is customary to argue, is alien to the Romano-Germanic legal family.

According to the author, a more convenient form of the state's implementation of the property management function is the creation of a joint-stock company with 100% state participation. But a joint-stock company is a commercial organization and, regardless of who owns its shares, its legislative focus on making a profit, as the main goal of the activities of any commercial organization, may come into conflict with the need to perform publicly significant functions.

Perhaps this is the essence of the legislator's search for new organizational and legal forms of a legal entity that meet the needs of the state. At the same time, it makes sense to understand in more detail the goals of the activity, legal consequences, and the economic feasibility of creating these persons.

When grading legal entities, one cannot rely only on the legal regime of ownership (property); there are other forms of participation of these subjects in legal relations. But these subjects may have other goals and objectives that are not related to the use of state property.

in order to make a profit. Recently, budget legislation has also begun to interfere with the gradation of legal entities: so-called "budget", "state" and "autonomous" institutions have appeared.

Thus, the monopoly of civil law in the field of the theory of the legal entity is gradually beginning to erode. Is this justified from the point of view of legal science? The question arises, why does the budgetary, and not administrative law, develop criteria for the classification of certain types of legal entities? From the standpoint of administrative law, such criteria can be the goals of organizations.

Summing up, let us turn to the Concept of long-term socio-economic development of the Russian Federation for the period up to 2020, where state corporations are called a transitional form, designed to promote the consolidation of state assets and increase the efficiency of their strategic management. As these problems are resolved, as well as the strengthening of the institutions of corporate regulation and the financial market, part of state corporations should be corporatized with subsequent full or partial privatization, and part of state corporations created for a certain period should cease to exist (subsection 1, section IV) 11 ...

Even if the state subsequently abandons such forms of a legal entity as a state corporation and a state-owned company, transferring them to the organizational and legal form of a joint-stock company, the problem of the legal status of such subjects as the Central Bank, state non-budgetary funds and other funds established by the state (Fund for Assistance to the Development of Housing construction (RHD Foundation 12; Russian Science Foundation) and other organizations performing public functions and not falling under the traditional civil legal structure of a legal entity.

Thus, the question of the need for further development of the legal doctrine of a legal entity of public law and the subsequent legitimization of this institution arises sharply.

Literature

1. Federal Law of December 23, 2003 No. 177-FZ (as amended on July 13, 2015) "On insurance of deposits of individuals in banks of the Russian Federation" // December 29, 2003, No. 52 (Part I), Art. 5029.

2. Federal Law of December 1, 2007 No. 317-FZ (as amended on December 31, 2014) "On the State Atomic Energy Corporation" Rosatom "// SZ RF 03.12.2007, No. 49, Art. 6078.

3. Federal Law of November 23, 2007 No. 270-FZ (as amended on November 28, 2015) "On the State Corporation for Assistance in the Development, Production and Export of High-Tech Industrial Products" Rostec "// SZ RF 26.11.2007, No. 48 ( 2 hours), Art. 5814.

4. Federal Law of May 17, 2007 No. 82-FZ (as amended on December 29, 2015) "On the Development Bank" // SZ RF 28.05.2007, No. 22, Art. 2562.

5. Federal Law of July 21, 2007 No. 185-FZ (as amended on June 29, 2015) "On the Fund for Assistance to the Reform of the Housing and Communal Services" // SZ RF 23.07.2007, No. 30, art. 3799.

6. Federal Law of October 30, 2007 No. 238-FZ (as amended on 05/07/2013) "On the State Corporation for the Construction of Olympic Facilities and Development of the City of Sochi as a Mountain Climate Resort" // SZ RF 20.07.2015, No. 29 (part I), Art. 4341.

7. Federal Law of July 19, 2007 No. 139-FZ (as amended on May 31, 2010) "On the Russian Corporation of Nanotechnologies" // SZ RF 23.07.2007, No. 30, Art. 3753.

8. Federal Law of July 17, 2009 No. 145-FZ (as amended on 12/14/2015) "On the State Company" Russian Highways "and on Amendments to Certain Legislative Acts of the Russian Federation" // SZ RF 20.07.2009, No. 29, art. 3582.

9. Federal Law of January 12, 1996 No. 7-FZ (as amended on 03/09/2016) "On Non-Commercial Organizations" // SZ RF, January 15, 1996, No. 3, Art. 145.

10. Federal Law of July 24, 2008 No. 161-FZ (as amended on December 29, 2015) "On Assistance in the Development of Housing Construction" // "Collected Legislation of the Russian Federation" July 28, 2008, No. 30 (part 2), Art. 3617.

LEGAL SCIENCES

11. Order of the Government of the Russian Federation of November 17, 2008 No. 1662-r (as amended on 08.08.2009) "On the Concept of long-term socio-economic development of the Russian Federation for the period up to 2020" (together with the "Concept of long-term socio-economic development of the Russian Federation for the period up to 2020 ") // SZ RF 24.11.2008, no. 47, art. 5489.

1. Federal "nyj zakon ot 23.12.2003 No. 177-FZ (red. Ot 13.07.2015)" O strahovanii vkladov fizicheskih lic v bankah Rossijskoj Federacii "// 29.12.2003, No. 52 (chast" I), st. 5029.

2. Federal "nyj zakon ot 01.12.2007 No. 317-FZ (red. Ot 31.12.2014)" O Gosudarstvennoj korporacii po atomnoj jenergii "Rosatom" // SZ RF 03.12.2007, No. 49, st. 6078.

3. Federal "nyj zakon ot 23.11.2007 No. 270-FZ (red. Ot 28.11.2015)" O Gosudarstvennoj korporacii po sodejstviju razrabotke, proizvodstvu i jeksportu vysokotehnologichnoj promyshlennoj produkcii No. 2 ch.), St. 5814.

4. Federal "nyj zakon ot 17.05.2007 No. 82-FZ (red. Ot 29.12.2015)" O banke razvitija "// SZ RF 28.05.2007, No. 22, st. 2562.

5. Federal "nyj zakon ot 21.07.2007 No. 185-FZ (red. Ot 29.06.2015)" O Fonde sodejstvija reformirovaniju zhilishhno-kommunal "nogo hozjajstva" // SZ RF 23.07.2007, No. 30, st. 3799.

6. Federal "nyj zakon ot 30.10.2007 No. 238-FZ (red. Ot 07.05.2013)" O Gosudarstvennoj korporacii po stroitel "stvu olimpijskih ob # ektov i razvitiju goroda Sochi kak gornoklimaticheskogo kurorta" // SZ No. 29 (chast "I), st. 4341.

7. Federal "nyj zakon ot 19.07.2007 No. 139-FZ (red. Ot 31.05.2010)" O Rossijskoj korporacii nanotehnologij "// SZ RF 23.07.2007, No. 30, st. 3753.

8. Federal "nyj zakon ot 17.07.2009 No. 145-FZ (red. Ot 14.12.2015)" O gosudarstvennoj kompanii "Rossijskie avtomobil" nye dorogi "io vnesenii izmenenij v otdel" nye zakonodatel "nye akty Rossijskoj FedeZci RF 20.07.2009, no. 29, st. 3582.

9. Federal "nyj zakon ot 12.01.1996 No. 7-FZ (red. Ot 09.03.2016)" O nekommercheskih organizacijah "// SZ RF, 15.01.1996, No. 3, st. 145.

10. Federal "nyj zakon ot 24.07.2008 No. 161-FZ (red. Ot 29.12.2015)" O sodejstvii razvitiju zhilishhnogo stroitel "stva" // Sobranie zakonodatel "stva RF" 28.07.2008, No. 30 (ch. 2 ), st. 3617.

11. Rasporjazhenie Pravitel "stva RF ot 17.11.2008 N 1662-r (red. Ot 08.08.2009)" O Koncepcii dolgosrochnogo social "no-jekonomicheskogo razvi-tija Rossijskoj Federacii na period do 2020 goda "no-jekonomic news razvitija Rossijskoj Federacii na period do 2020 goda") // SZ RF 24.11.2008, no. 47, st. 5489.

1 Federal Law of December 23, 2003 No. 177-FZ (as amended on July 13, 2015) "On insurance of deposits of individuals in banks of the Russian Federation" // December 29, 2003, No. 52 (Part I), Art. 5029.

12/31/2014) "On the State Atomic Energy Corporation" Rosatom "// SZ RF 03.12.2007, No. 49, Art. 6078.

11/28/2015) "On the State Corporation for Assistance in the Development, Production and Export of High-Tech Industrial Products" Rostec "// SZ RF 11/26/2007, No. 48 (2 h.), Art. 5814.

4 Federal Law of May 17, 2007 No. 82-FZ (as amended on December 29, 2015) "On the Development Bank" // SZ RF 28.05.2007, No. 22, Art. 2562.

5 Federal Law of July 21, 2007 No. 185-FZ (as amended on June 29, 2015) "On the Fund for Assistance to the Reform of the Housing and Utilities Sector" // SZ RF 23.07.2007, No. 30, art. 3799.

6 Federal Law of October 30, 2007 No. 238-FZ (as amended on 05/07/2013) "On the State Corporation for the Construction of Olympic Facilities and the Development of the City of Sochi as a Mountain Climate Resort" // SZ RF 20.07.2015, No. 29 (Part I ), Art. 4341.

7 Federal Law of July 19, 2007 No. 139-FZ (as amended on May 31, 2010) "On the Russian Corporation of Nanotechnologies" // July 23, 2007, No. 30, Art. 3753.

8 SZ RF 20.07.2015, No. 29 (Part I), Art. 4341

9 Federal Law of July 17, 2009 No. 145-FZ (as amended on December 14, 2015) "On the state company Russian Highways and on Amending Certain Legislative Acts of the Russian Federation" // SZ RF 20.07.2009, No. 29, art. 3582.

10 Federal Law of January 12, 1996 No. 7-FZ (as amended on 03/09/2016) "On Non-Commercial Organizations" // SZ RF, January 15, 1996, No. 3, Art. 145.

11 Order of the Government of the Russian Federation of November 17, 2008 No. 1662-r (as amended on 08.08.2009) "On the Concept of long-term socio-economic development of the Russian Federation for the period up to 2020" (together with the Concept of long-term socio-economic development of the Russian Federation for period until 2020 ") // SZ RF 24.11.2008, no. 47, art. 5489.

On October 2, 2016, the position of public companies and state corporations in the Russian Federation was legislatively determined.

• specifies the status of a public company,
• it was established that a state corporation is a separate organizational and legal form of a non-profit organization.

Such innovations are provided for "On public companies in the Russian Federation and on amendments to certain legislative acts of the Russian Federation" (hereinafter - Law No. 236-FZ). Based on it, it is now possible to determine the similarities and differences between a public company and a public corporation.

Public company

The legislator has secured the possibility of creating a non-profit organization in the form of a public company since September 1, 2014 (subparagraph 11, clause 3, article 50 of the Civil Code of the Russian Federation). However, he did not specify the legal position of this form. The only clarification consisted only in the fact that a public company is a unitary legal entity (paragraph 2, clause 1 of article 65.1 of the Civil Code of the Russian Federation).

Since October 2, the legal status of a public company has been regulated in detail by Law No. 236-FZ. In particular, he revealed the concept of this form (part 1 of article 2).

Thus, a public company is a unitary non-profit organization, which the Russian Federation:

• created according to the rules of Law No. 236-FZ and
• endowed with functions and powers of a public law nature, in order for the company to act in the interests of the state and society.

For clarity, the features of the legal status of a public company should be considered in comparison with the characteristics of a state corporation.

State corporation

After September 1, 2014, uncertainty arose as to whether the state corporation should be considered an independent organizational and legal form or not.

• a separate form of a non-profit organization (subparagraph 14, clause 3, article 50 of the Civil Code of the Russian Federation). In particular, it is not a type of public company or some additional form of legal entity;
• a unitary legal entity (paragraph 2 of clause 1 of article 65.1 of the Civil Code of the Russian Federation). In other words, no matter how strange it may sound, a state corporation is not a corporation at all (from the point of view of dividing all legal entities into corporate and unitary).

At the same time, no individual provisions governing the activities of state corporations have appeared in the Civil Code of the Russian Federation. This means that the legal status of the state corporation is still determined by:

• Article 7.1 of the Federal Law of January 12, 1996 No. 7-FZ "On Non-Commercial Organizations" (hereinafter - the Law on Non-Commercial Organizations) and
• federal laws on the creation of specific state corporations (for example, "On the State Atomic Energy Corporation" Rosatom "").

Similarities between a public company and a state corporation

A public company and a state corporation have three main similarities:

• both legal entities are unitary non-profit organizations;
• founder - Russian Federation;
• the supreme governing body is the supervisory board (in the state corporation it is also allowed to call it the board of directors).

Differences between a public company and a state corporation

For clarity, the differences should be considered in the form of a table.

A state corporation has the characteristics listed in the table, unless the federal law on its creation provides otherwise ().

State corporation- a non-profit organization without membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions. The state corporation is created on the basis of federal law. The property transferred to the state corporation by the Russian Federation is the property of the state corporation. The state corporation is not responsible for the obligations of the Russian Federation, and the Russian Federation is not responsible for the obligations of the state corporation, unless otherwise provided by the law providing for the creation of the state corporation.

Features of the legal status

The Civil Code is created on the basis of federal law.

The property transferred to the Civil Code by the Russian Federation is the property of the Civil Code, that is, it is not state property (this is how the Civil Code differs from the Federal State Unitary Enterprise). Thus, control over the property of the Civil Code is removed from the supervision of the Accounts Chamber of the Russian Federation.

The Civil Code is not responsible for the obligations of the Russian Federation, and the Russian Federation is not responsible for the obligations of the Civil Code, unless otherwise provided by the law providing for the creation of the Civil Code.

The Civil Code differs both from OJSCs with predominant state participation, and from state unitary enterprises (FSUEs): in particular, the Civil Code is not subject to the provisions on disclosure of information, mandatory for public OJSCs, as well as the operation of the bankruptcy law; unlike FSUEs, GCs have been removed from the control of a number of state bodies.

The Civil Code is not obliged to submit documents containing a report on its activities to state bodies (the exception is a number of documents submitted to the government of the Russian Federation). In particular, state bodies without the consent of the Civil Code cannot:

to request from the governing bodies of the corporation their administrative documents;

to request and receive information on the financial and economic activities of the corporation from the state statistics bodies, the federal executive body authorized for control and supervision in the field of taxes and fees, and other state supervision and control bodies, as well as from credit and other financial organizations;

send representatives to participate in events held by the corporation;

to carry out inspections of the compliance of the corporation's activities, including the expenditure of funds and the use of other property, with the purposes stipulated by its constituent documents, in the manner determined by the federal executive body in charge of legal regulation in the field of justice;

in case of a violation of the legislation of the Russian Federation or the commission by the corporation of actions that contradict the goals stipulated by its constituent documents, issue a written warning to it indicating the violation and the deadline for its elimination;

to establish the correspondence of the expenditure of funds and the use of other property by corporations to the purposes stipulated by their constituent documents.

State corporations are not subject to the provisions of Federal Law No. 127-FZ “On Insolvency (Bankruptcy)”. But if a state corporation uses state land, then there are formal grounds for exercising control on the part of the Accounts Chamber. For example: "control over the efficiency and compliance with the targeted use of state property (land plots) in the use of the Civil Code ..." In addition, Article 12 of the Federal Law "On the Accounts Chamber of the Russian Federation" and other benefits and advantages. The procedure for the formation of a state corporation, that is, the property contribution of the Russian Federation, is the advantage on the basis of which these organizations are subject to control by the Accounts Chamber of the Russian Federation. The subject of control is the efficiency of managing the property contribution of the Russian Federation.

State corporations are not subject to the provisions of Federal Law No. 94-FZ on public procurement, which allows state corporations to hold tenders and auctions for the purchase of goods, works and services in an arbitrary manner.

Control over the activities of the Civil Code is carried out by the Government of the Russian Federation on the basis of the annual submission by the corporation of an annual report, an auditor's report on accounting and financial (accounting) statements, as well as an opinion of the audit commission based on the results of an audit of financial (accounting) statements and other documents of the corporation. Any other federal government bodies, government bodies of the constituent entities of the Russian Federation, local government bodies shall not have the right to interfere in the activities of corporations. The Civil Code is not obliged to publish the specified reporting.

The specifics of the legal status of a state corporation, including the procedure for appointing a head, are established by a law providing for the creation of a state corporation (according to most of these laws, the head of the Civil Code is appointed by the President of the Russian Federation).

In the second half of 2007, the process of creating various state corporations accelerated; in particular, the state corporation “Fund for Assistance to Reform of Housing and Utilities Sector”, “Rostekhnologii”, “Rosnanotech”, “Olympstroy” were created or planned to be created. The Development Bank (former VEB) was created in the form of the Civil Code. The "Deposit Insurance Agency" was created in the form of a state corporation. A number of officials and politicians spoke in favor of the creation of state corporations in the field of fisheries, housing construction, road construction, pharmaceutical supplies, machine tools. At the same time, the state-owned United Aircraft Corporation and United Shipbuilding Corporation were created in the form of a joint-stock company, not a GC.