State (hierarchical) regulation of entrepreneurial activity: concept and limits. Entrepreneurial activity of the enterprise

• 2.1. The concept and principles of entrepreneurial activity.
• 2.2. Forms of entrepreneurial activity.
• 2.3. State regulation of entrepreneurial activity.

The concept and signs of entrepreneurial activity

The legal definition of entrepreneurial activity is contained in Part 2, Clause 1, Art. 1 of the Civil Code of the Republic of Belarus. Entrepreneurial activity is an independent activity of legal entities and individuals carried out by them in civil circulation on their own behalf, at their own risk and under their own property responsibility and aimed at systematic profit from the use of property, the sale of things produced, processed or acquired by these persons for sale. , as well as from the performance of work or the provision of services, if these works or services are intended for sale to other persons and are not used for their own consumption.

Entrepreneurial activity does not include handicraft activities, activities for the provision of services in the field of agro-ecotourism, the activities of individuals using their own securities, bank accounts as a means of payment or saving money purchases, as well as one-time sales by individuals at trading places in the markets and (or ) other places where trade can be carried out in accordance with the legislation, goods produced, processed or acquired by them (with the exception of excisable goods, goods subject to marking with control (identification) marks), classified as product groups defined by law, advocacy, private notarial activity.

Among the noted features contained in the definition of entrepreneurial activity, it is necessary to distinguish between the general ones inherent in any free activity. including entrepreneurial (independent and risky nature), and specific features of entrepreneurial activity (its focus on systematic profit and the need state registration).

Let us consider in more detail each of the marked signs of entrepreneurial activity.

BUT. Entrepreneurial activity is an independent activity, that is, citizens and legal entities carry out entrepreneurial activity with their own power and in their own interest. If the activity is not independent, then it does not apply to entrepreneurial activity. In particular, the activities of the institution cannot be classified as entrepreneurial. Institutions, in addition to their main activities, can carry out entrepreneurial activities only insofar as this serves to achieve the goal for which they were created. This is explained by the fact that the institution is created by the owner for a given purpose (socio-cultural, managerial, etc.), which does not bring profit. By defining the purpose of the institution's activity and financing it, the owner limits the institution's legal possibilities.

Entrepreneurial activity is organized by a person at his own discretion, which, however, does not exclude its regulation by the state. So, in Art. 13 and 41 of the Constitution of the Republic of Belarus, as well as in Art. 22 and 45 of the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code) guarantees the right to engage in entrepreneurial activities not prohibited by law. It follows from Articles 2, 12, 15 and other Civil Codes that unregulated interference by the state and its bodies in the activities of an entrepreneur is not allowed. An entrepreneur has the right to apply to an economic court or a court of general jurisdiction with an application for invalidation of non-normative acts of state bodies or bodies local government, and in cases provided for by law - normative acts that do not comply with the law or other legal acts and violate the rights and legally protected interests of the entrepreneur.

B. Entrepreneurial activity is an activity carried out by the subject at his own risk. Indeed, freedom of activity also implies bearing the risk of the consequences of the corresponding actions (inaction). If the activity is carried out not at one's own risk, then it does not apply to entrepreneurial activity. For example, the activities of state and other institutions cannot be classified as entrepreneurial also because, if the institution has insufficient Money subsidiary liability for his debts is borne by the owner of the relevant property (paragraph 2 of article 120 of the Civil Code).

The activity of an entrepreneur is aimed at making a profit. However, due to various reasons this result is not always achievable. In such cases, one speaks of commercial risk. Commercial risk is a normal market phenomenon associated with the possibility of adverse consequences for the entrepreneur. The reasons for such adverse effects can be different - subjective and objective.

If the reasons are objective, independent of the entrepreneur or other persons ( natural disasters and other extraordinary and unavoidable circumstances under the given conditions), entrepreneurs must take these circumstances into account and take into account in advance necessary measures to eliminate or reduce their potential losses. Such measures include insurance. Moreover, along with insurance of specific commercial risks in insurance companies, entrepreneurs can, and in cases provided for by law, are obliged to engage in self-insurance by creating a reserve (insurance) fund at the expense of a part of their own profits, intended to cover any unforeseen expenses.

The subjective reasons for the occurrence of adverse consequences include non-fulfillment or improper fulfillment of obligations by the entrepreneur or his counterparties under the contract. In this case, the responsibility of the entrepreneur or his counterparty arises, which is expressed in adverse property consequences for the person concerned and is due to an offense on his part.

The entrepreneur is liable if he does not prove that the proper performance of the obligation was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions (natural disasters, hostilities, etc.). Guilt is a necessary condition for the liability of the entrepreneur, if it is expressly provided for by law or contract.

AT. Entrepreneurial activity is an activity aimed at systematic profit. In this case, we are talking about the main goal of the entrepreneur. If the extraction of profit is not the main purpose of the person's activity, then he is not considered as an entrepreneur, and his activity is not entrepreneurial.

In a market economy, the goal of entrepreneurship is not only the production of goods (works, services), which goes without saying as a means of achieving the goal of entrepreneurship, but also profit making. The current legislation legalizes the purpose of entrepreneurship - the systematic professional extraction of profit.

In entrepreneurial activity, each individual transaction is only a special link in the whole plan of the entrepreneur, drawn up in order to obtain the final result - profit.

Ultimately, it is not the field of activity that is important for an entrepreneur, which can be trading, intermediary, construction, transport, insurance, banking, investment and any other activity. For an entrepreneur, the main thing is the ultimate goal of activity - profit, systematic profit. In this sense, activity in any sphere of the economy (economy) is entrepreneurial, since it is aimed at making profit (the difference between the purchase price and the sale price). And the more profit this or that field of activity promises, the more attention from entrepreneurs it enjoys.

G. Entrepreneurial activity is an activity carried out by persons registered as entrepreneurs. Carrying out entrepreneurial activity without registration is prohibited. Incomes received as a result of such activities are subject to collection in the state revenue in accordance with the established procedure.

State registration, and in certain cases, licensing of entrepreneurial activity, is necessary to exercise control over it by society in cases expressly specified in the legislation.

Having considered the signs that characterize entrepreneurial activity, we can conclude that economic activity and entrepreneurial activity are in a certain relationship: what is included in the content of entrepreneurial activity is characteristic of any economic activity. However, entrepreneurship is different characteristic features, which allows us to speak of entrepreneurial activity as a narrower concept than economic activity.

Forms of entrepreneurial activity

The legal form of entrepreneurial activity is an external expression, the position of the subject conducting this activity fixed by law, the procedure for the formation and use of its property and liability in economic circulation.

This concept includes the following elements:

• - determination of the status of the subject itself and notification of this to the state authorities:
• - establishment of property relations both in relation to the creation of a base for entrepreneurial activity, and in relation to the distribution of its results;
• - distribution of responsibility within the chosen form and outside, to contractors and consumers.

There are the following forms of entrepreneurial activity:

• 1) without forming a legal entity (i.e. as an individual entrepreneur);
• 2) with the formation of a legal entity (in the form of: business partnerships (general and limited); business companies (with limited liability, additional liability, joint-stock companies open and closed type), unitary enterprises (on the right of economic management or operational management), production cooperatives and peasant (farm) enterprises.

State regulation of entrepreneurial activity

State regulation of entrepreneurial activity is a purposeful activity of the relevant legislative and other bodies that, through a system of various forms and methods, ensure the achievement of goals and the solution of important economic, social and other tasks in the process of regulating economic relations.

State regulation is revealed through the functions of the state:

• 1. Protection of the economic law and order.
• 2. Formation of economic goals and the timing of their achievement.
• 3. Distribution and redistribution through the budget of income between industries and regions.
• 4. Stimulation through subsidies / subsidies to ensure the development of enterprises and industries in a given direction.
• 5. Control over compliance with economic legislation.

The most important forms of state regulation:

• 1. Planning - the organizational activity of the competent authorities of the state for the selection and setting of goals, the definition of priorities, the development of measures.
• 2. Forecasting - preparation of forecasts about the possible state of the economy, ways of its development.
• 3. Monetary policy - taxes, prices, lending.
• 4. Antimonopoly regulation - aimed at protecting market fundamentals, manifested in the creation of market conditions for competition.

Ways of state regulation:

• 1. Administrative and administrative - based on authority state power and include prohibitions, permits and warnings.
• 2. Economic - implemented through economic regulators: prices, taxes, financial resources (benefits, loans, budget investments).

Entrepreneurial activity (entrepreneurship) - according to the civil legislation of the Russian Federation, an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law. The subjects of entrepreneurial activity in the Russian Federation may be citizens of the Russian Federation not limited in their legal capacity, foreign citizens, stateless persons, as well as Russian and foreign legal entities. In the Russian Federation, the regulation of entrepreneurial activity is based on the norms of civil law, unlike most foreign countries, where entrepreneurial activity is regulated by the norms of trade (commercial, economic) law. This is how the legal dictionary defines entrepreneurship.

The issue of the legal foundations of state regulation of entrepreneurship cannot be disclosed without characterizing the content of the principles for implementing such a policy. The principles of state regulation of entrepreneurship are fundamental ideas enshrined in legal norms, in accordance with which the mechanism of Russian statehood in the field of entrepreneurship is organized and functions. These principles are part of objectively existing general principles state administration, which are enshrined in the current legislation and are used in the process of governing the country.

The principle of legality is comprehensive legal principle. It applies to all forms. legal regulation, addressed to all subjects of law. The main content of this principle is the requirement of the strictest observance of laws and by-laws based on them. The legitimacy of state regulation of entrepreneurship means that its measures comply with current legislation and are applied in the manner prescribed by law. A sufficient number of high-quality legal norms, along with a high level of their implementation by all subjects of legal relations, is the basis for ensuring the regime of the legality of the activities of economic entities. The principle of legality is the basis for the functioning of both the state as a whole and entrepreneurial activity in particular.

The principle of expediency of state regulation of entrepreneurship is that it should be used only when certain problems in the development of entrepreneurship can be solved with its help and when the negative consequences of its application do not exceed the positive effect achieved with its help. The purpose of the application of state regulation is to create obstacles to violations of legal norms.

The content of state regulation measures is subject to the principle of justice. Justice is one of the general principles of law, is the guiding principle of legal regulation. The fairness of state regulation is ensured by the fact that the rules of law establish the equality of business entities before the law and are expressed in accordance with the scope of the regulatory impact of the nature of the offense, in their proportionality.

The next principle of state regulation of entrepreneurship is the mutual responsibility of the state and business entities. At the same time, the state, which performs functions in this area through the legislative, executive and judicial authorities, is legally recognized as the main subject for ensuring the safety of entrepreneurial activity. The state must ensure not only the safety of every person, but also give guarantees in ensuring the safety of entrepreneurial activity.

Today, the provisions of the Constitution of the Russian Federation provide guarantees for entrepreneurial activity. The norms of Art. 35 in the Constitution, since it immediately contains three most important guarantees of entrepreneurial activity: no one can be deprived of his property except by a court decision, the expropriation of property for state needs can be made only on condition of preliminary and equivalent compensation; the right to inherit is guaranteed. The Constitution solves the main economic and legal problem - the problem of property. The term "property" and its forms in the Constitution are understood as forms of management carried out by various entities. In addition, a number of constitutional provisions provide a single economic and legal space in the country.

Of fundamental importance are the provisions of the Constitution that proclaimed Russia welfare state, whose policy, including in the field of economy and entrepreneurship, serves to create conditions for a decent life and free development of a person, and his rights and freedoms are declared the highest value.

Of great importance is the adoption of a number of such laws as the Law “On Joint Stock Companies”, new editions of the laws “On the Central Bank Russian Federation”, “On banks and banking activity”, which established modern foundations regulation of the country's banking system, federal laws on international treaties, production sharing agreements and a number of other regulations.

For the development of competition, as one of the main directions for the formation of civilized conditions for entrepreneurial activity, it is important to provide legal support for development competitive environment and fight against unfair competition. The Decree of the Government of the Russian Federation “On the State Program for the Demonopolization of the Economy and the Development of Competition in the Markets of the Russian Federation (Main Directions and Priority Measures)” determined two areas of work: the legal support of competition and the development of programs for the demonopolization and development of competition. It should be noted that the legislation of Russia reflects the features of its economy, the specifics of the legal system:

along with restrictions on the monopolistic activity of entrepreneurs - economic entities, measures are provided for the suppression of state monopolism - monopolistic actions (acts, agreements) of state authorities and administration,

along with the prohibition of the commission of monopolistic actions and the introduction of responsibility for this, various measures are envisaged to support the development of small and medium-sized enterprises and the disaggregation of monopolistic structures.

The problem of the need for state regulation of natural monopolies was recognized by the authorities only by 1994, when the rise in prices for their products had already had a significant impact on undermining the economy. At the same time, the reformist wing of the government began to pay more attention to the problems of regulating natural monopolies, not so much in connection with the need to stop price increases in the relevant sectors or ensure the use of the possibilities of the price mechanism for macroeconomic policy, but primarily in an effort to limit the range of regulated prices.

The first draft of the Law "On Natural Monopolies" was prepared by employees of the Russian Privatization Center on behalf of the State Committee for Administrative Offenses of the Russian Federation in early 1994. After that, the draft was finalized by Russian and foreign experts and agreed with the sectoral ministries and companies (Ministry of Communications, Ministry of Railways, Ministry of Transport, Minatom, Minnats, RAO Gazprom, RAO UES of Russia, etc.). Many sectoral ministries opposed the project, but the SCAP and the Ministry of Economy managed to overcome their resistance. Already in August, the government sent a draft law agreed with all interested ministries to the State Duma.

According to the Law "On Natural Monopolies", the scope of regulation includes transportation of oil and oil products through main pipelines, transportation of gas through pipelines, services for the transmission of electrical and thermal energy, rail transportation, services of transport terminals, ports and airports, public and postal services.

The main methods of regulation were: price regulation, that is, the direct determination of prices (tariffs) or the appointment of their maximum level; determination of consumers for mandatory service and / or establishment of a minimum level of their provision. Regulators are also required to control different kinds activities of subjects of natural monopolies, including transactions for the acquisition of property rights, large investment projects, sale and lease of property.

Foreign regulatory experience shows that the main thing in such activities is the maximum independence of regulatory bodies as from other bodies. government controlled and from the economic entities they regulate, as well as the consistency of interests and directions of work of regulatory bodies, which will provide them with the opportunity to make politically unpopular decisions.

In the original draft of the Law, it was assumed that regulators would have a high degree independence: members of their boards, appointed for a long term, could not be dismissed for any reason other than by court order; it provided for a ban on the combination of positions by members of the boards, ownership of shares in regulated companies, etc. However, in the final version, many progressive provisions borrowed from many years of regulatory practice in foreign countries, have been either relaxed or withdrawn, which calls into question the possibility of making decisions in enough protected from the influence of various political forces.

By 1995, only one system of regulatory bodies had been formed, operating outside the line ministries. These are the Federal and Regional Energy Commissions, established in 1992 to regulate tariffs for electricity and heat. Control over other natural monopolies was carried out by the relevant ministries (Ministry of Economy, Ministry of Fuel and Energy, Ministry of Railways, Ministry of Communications). Thus, the Ministry of Railways received permission to monthly index tariffs for transportation, taking into account the increase in prices for the main types of products consumed by its enterprises. The Ministry of Economy and the Ministry of Finance adjusted tariffs on a quarterly basis, taking into account financial condition industries.

However, even in the electric power industry until 1995 there were no fixed legal framework regulation. State control over economic activity natural monopolies was significantly weakened due to the transformation of many enterprises into joint-stock companies, where sectoral interests began to dominate. At the same time, the federal government, while retaining controlling stakes in its hands, did not become actively involved in the mechanism of corporate and joint-stock management.

Simplified schemes of state regulation of natural monopolies, based on indexing tariffs (prices) and not accompanied by a thorough check of the reasonableness of costs and investment activities, allowed monopolists to easily bypass the restrictions that quasi-regulatory bodies put in their way (Price Department of the Ministry of Economy, Federal Energy Commission). The most important reasons the existing situation were: the lack of the necessary legislative framework; uncertainty of the status of regulatory bodies, their dependence both on the government and ministries, and on regulated entities; flaw financial resources and qualified personnel.

Many cases initiated by the territorial departments of the SCAP of Russia on the facts of violations of the Law of the Russian Federation "On Competition and Restriction of Monopolistic Activities in Commodity Markets" in 1994-1995 were related to the actions of natural monopoly enterprises. Numerous cases of tariff overstatement, refusal to serve certain consumer groups, inclusion in contracts of additional conditions(participation in the construction of production facilities, transfer of residential premises, provision of material resources).

By January 1996, three presidential decrees had been adopted to create public services on the regulation of natural monopolies in the fuel and energy complex, communications and transport. In March-April, government decrees on the establishment of regulatory bodies were published, in particular, the number of their personnel was determined. However, at the end of May, the head of only one service was appointed - the Federal Energy Commission. The appointment of the Deputy Minister of Fuel and Energy to this post is a compromise between the government and regulated entities.

Thus, in the field of creating a legislative and institutional framework for the regulation of natural monopolies, some important and necessary measures have been taken, but much remains to be done both in relation to building effective system regulation, and from the point of view of restructuring industries, which will make it possible to form a more compact and manageable sphere of regulation.

With the beginning of the reforms, the problem of creating a regulatory framework for the insolvency of economic entities became an urgent practical task. The significance of the institution of insolvency lies in the fact that, on its basis, from civil circulation insolvent entities are excluded, and this leads to the improvement of the market, increasing the security of the functioning of business entities.

The Law "On Insolvency (Bankruptcy)" is one of the most important for the economy of any country. It is the way the bankruptcy procedure is structured in the country that determines the basic "rules of the game" for both industrial giants and small shops.

The new Bankruptcy Law (dated October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”) does not close all loopholes for financial fraud, but eliminates the most egregious of them.

The previous version of the Russian Bankruptcy Law was extremely controversial, and in fact contributed to the creation of a real industry of custom-made bankruptcies in Russia. The new law does not close all loopholes for fictitious bankruptcies, does not solve the problem of judicial arbitrariness, it does not "resolve" the situation when an enterprise falls into bankruptcy due to the fault of the state, which does not pay the plant for the products ordered by it. And yet this law is an undoubted step forward, which everyone has been waiting for.

The main thing is that now it will become much harder to bankrupt an enterprise, and the procedure itself will be more complex, multi-stage, and controlled.

Bankruptcy ceases to be a "shot in the temple" when, by pulling the trigger, that is, by starting the bankruptcy procedure, you can no longer fix anything.

Instead of kicking out money - financial recovery.

What is bankruptcy anyway? This is when an enterprise cannot pay off its debts, even if it sells all its property. In our faltering economy, it is often impossible to immediately understand whether the enterprise has actually reached the “hands”. Therefore, only bankruptcy proceedings are related to the bankruptcy procedure itself. All other procedures (supervision, financial recovery, external management) are essentially pre-bankruptcy.

According to the old law, anyone to whom the enterprise owed money could declare bankruptcy, and he cannot collect his debt from it. That is, bankruptcy solved completely different problems - not the liquidation of an enterprise that had run aground and "clogged" the economic horizon, but the satisfaction of one or another specific debtor. The law was written not to improve the economy as a whole, but for the benefit of specific business entities. The bankruptcy procedure could be started if the debtor could not repay a debt in the amount of more than 500 minimum wages for 3 months. For these meager debts, it was possible to change the owner of any huge enterprise. The new law establishes a clearly fixed amount of one hundred thousand rubles. Changing the amount of debt does not matter. It is important why the debtor does not pay. To find out, before starting bankruptcy, a debt collection procedure must be completed. The court applies the entire arsenal of methods: seizure and sale of property, a ban on transactions without resorting to bankruptcy.

In the new law, for the first time, the figure of the creditor state appears: if you owe the treasury, it, along with other creditors, will demand its full. The previous law did not give the state the right to vote in bankruptcy proceedings - state representatives could only attend meetings of creditors and in arbitration process, without the right to vote. On the other hand, the old law required that the claims of the state be satisfied almost in the first place. This was a serious contradiction, a source of confusion and abuse. The new law equalizes the rights of the state and all other creditors: they participate equally in meetings and receive their own.

In general, the appearance of the "queue" in which creditors "stand" to get their money from the debtor is completely changing. In the old law, it was as follows: first, legal costs were covered, then - in descending order - current payments, payment for the work of an arbitration manager, compensation for harm to health, wage employees of the debtor enterprise, collateral requirements, mandatory payments to the budget, other obligations. The new law gives a different sequence: legal costs, current payments, payment for the work of an arbitration manager, compensation for harm to health, wages of employees of the debtor enterprise, and other obligations.

Special bankruptcy regimes - as a rule, softer ones - were introduced by the old law for city-forming enterprises. In addition, there is a separate law on fuel and energy companies. The new law introduces special bankruptcy regimes for subjects of natural monopolies and military-industrial complex enterprises. Interest Ask whether it will be possible under the new law to bankrupt entire cities and regions. Today, they are trying to solve it within the framework of the commission of Dmitry Kozak (administration of the President of the Russian Federation), since it is closely connected with the problem of local self-government. So far, we have agreed that, if the region becomes insolvent, direct control from the federal center can be introduced.

I would like the law to clearly spell out the principles by which it is possible to separate a temporary debtor from a truly insolvent one. We propose the following criterion: an enterprise cannot cover its liabilities within three months with liquid assets. Liquid assets should be understood as money, securities, receivables, paid but not returned, VAT, inventory.

The new law, like the old one, leaves room for the arbitrariness of bankruptcy creditors and judges. We need clear rules - based on the financial statements of the debtor.

Entrepreneurship in modern conditions requires state regulation, thanks to which the private interests of its specific subjects will be combined with the public law interests of the whole society. In the system of measures of such regulation in the Russian Federation, licensing of this activity has become widespread.

Business licensing is a relatively new phenomenon in Russian legislation, however, certain legal problems have emerged in the application of the licensing mechanism. Their solution becomes a condition for its effective functioning.

State licensing of entrepreneurship until recently was the main element of such regulation. Officials had a very convenient mechanism: they could always check how licensed firms were working, quickly stop violations - by warning, suspending or revoking a license. At the same time, licensing, by setting unnecessary bureaucratic barriers in the way of entrepreneurs, reduces, as practice has shown, the number of market participants, and therefore weakens competition. This is dangerous for the economy, especially in the conditions of the almost complete absence of public control over the activities of the bureaucratic machine. Of course, the actions of an official can be challenged in court, and he very often takes the side of the entrepreneur. However, not always businessmen dare to start a trial. Sometimes you have to wait for a court decision for quite a long time, and during this time officials can paralyze the activities of the obstinate.

But state licensing has another drawback: the possibility of using it to eliminate competitors. Entrepreneurs who manage to get along with supervisory authorities initiate checks on competitors either to obtain inside information or simply to bankrupt them.

Now only those types of entrepreneurial activities fall under the law on licensing, "the implementation of which may entail damage to the rights, legitimate interests, health of citizens, defense and security of the state, cultural heritage peoples of the Russian Federation and whose regulation cannot be carried out by other methods than licensing. In addition, now a license is issued for a period of at least five years (under the old law - at least three). The powers of licensing authorities, the procedures for issuing, reissuing and revoking licenses Finally, new law introduces an exhaustive, much shorter than in the old version, list of licensed activities.

However, the unexpected happened: many professional market participants who were affected by the abolition of licenses have a negative attitude towards it. The main motive: a stream of non-professionals and outright crooks will pour into the market, who will dump and make quality work unprofitable. Particularly dissatisfied realtors managing the real estate market. The appearance on it of new participants who jumped out “like the devil out of a snuffbox” can lead to lower prices for services and deceive citizens.

But the authors of the reform do not at all renounce administration in the sphere of entrepreneurship. The removal of barriers to entry into the market is offset by control over activities directly on the market - new mechanisms for regulating entrepreneurial activity are being introduced for Russia. Thus, the new Code of administrative offenses(CoAP). It provides for administrative disqualification of market participants who violate the law - a ban on certain activities or holding certain positions for up to three years. Only a court can apply such a sanction.

It should also be noted that no one has canceled the mandatory and voluntary certification of goods, works or services, as well as certain qualification requirements for market participants. For example, although the production of building structures and materials will no longer be licensed, the consumer will always be able to find out about the quality of building materials using the appropriate certificate.

There are questions about the application of the new law. After its entry into force, a government decree was issued, which specifically distributed the levels of licensing (federal, regional). However, relevant normative documents There are no (Regulations) on the procedure for licensing this or that type of entrepreneurial activity (with the exception of the tourism and construction business) so far.

The licensing system worked well for regional level. All that was required was to supplement it with the Federal Leasing Center, which would make it possible to resolve emerging issues more efficiently and promptly. There should be state control over business. As for the removal of administrative barriers from its path, why, for example, not introduce a simplified procedure for registering and formalizing private enterprises using the so-called "single window" method, when all Required documents(including licenses)?

Legal regulation of entrepreneurial activity is based on certain principles. Under the principles in jurisprudence, it is customary to understand the guiding ideas that underlie the regulation of a certain area. public relations. A set of certain ideas underlies the regulation of entrepreneurial activity. Thus, we can talk about the existence of the principles of legal regulation of entrepreneurial activity.

Unlike a number of other branches of Russian law, business law not codified. Accordingly, there is no single normative act that would enshrine all the principles governing entrepreneurial activity. This causes certain difficulties in identifying the principles of legal regulation of entrepreneurial activity, causes discussions among scientists about their number and name. In addition, since neither the Civil Code of the Russian Federation nor other documents contain a chapter or article with the title “Principles of legal regulation of entrepreneurial activity”, disputes arise among scientists whether to consider this or that normatively fixed provision as an appropriate principle or something else.

In this situation, it is very difficult to give an exhaustive list of the principles of legal regulation of entrepreneurial activity. Therefore, further we will dwell on the characteristics of only the basic principles. However, first let's make a reservation. The principles of legal regulation of entrepreneurial activity are only the main provisions enshrined in the Constitution of the Russian Federation, the Civil Code of the Russian Federation and other regulatory legal acts and aimed at regulating relations in the field of entrepreneurship.

All other provisions referred to in the legal literature as the principles of legal regulation of entrepreneurial activity, but not directly enshrined in regulations, but only those identified by scientists on the basis of their analysis and interpretation, can be called the doctrinal principles of business law. Since they are not normatively fixed, in fact, they are not in the sphere of law, but in the sphere of legal consciousness. Their list is open and depends on the position of individual scientists.

Basic principles of legal regulation of entrepreneurial activity:

1. The principle of freedom of entrepreneurial activity. In part 1 of Art. 8 of the Constitution of the Russian Federation guarantees freedom of economic activity, and Part 1 of Art. 34 of the Constitution of the Russian Federation states: "Everyone has the right to free use of his abilities and property for entrepreneurial and other economic activities not prohibited by law."

According to V.V. Laptev, this principle is fundamental principle business law, it means the right of a citizen or organization to start and conduct entrepreneurial activities in any area of ​​the economy. V.S. Belykh draws attention to the complex nature of the principle of freedom of entrepreneurial activity, and G.S. Hajiyev believes that the freedom of entrepreneurial activity includes a number of elements:

• freedom to choose the type of activity or occupation, freedom to be either a landlord-entrepreneur or an employer (Article 37 of the Constitution of the Russian Federation);
• freedom to move, choose a place of stay and residence - freedom of the labor market (Article 27 of the Constitution of the Russian Federation);
• freedom of association for joint economic activity - the choice of the organizational and legal form of entrepreneurial activity and the formation of various business structures in a notification procedure (Article 34 of the Constitution of the Russian Federation);
• freedom to own property, to own, use and dispose of it both individually and jointly with other persons, freedom to own, use and dispose of land and other natural resources(Art. 34, 35 of the Constitution of the Russian Federation);
• freedom of contract - to conclude civil law and other transactions (part 2 of article 35, article 74, part 4 of article 75 of the Constitution of the Russian Federation). On our own behalf, we add that the principle of freedom of contract is more clearly enshrined in Art. 1 and 421 of the Civil Code of the Russian Federation;
• freedom from illegal competition (part 2 of article 34 of the Constitution of the Russian Federation). This principle is also enshrined in Art. 10 of the Civil Code of the Russian Federation, and "certain provisions regulating issues of competition and antimonopoly activities are contained in laws devoted to the regulation of exchange, banking, investment, innovation, insurance and other activities" . Particularly in terms of protection against illegal competition, the Federal Law of July 26, 2006 No. 135-FZ “On Protection of Competition” should be mentioned;
• freedom to engage in any business or other business not prohibited by law economic activity in accordance with the principle “Everything that is not prohibited by law is allowed” (part 1 of article 34 of the Constitution of the Russian Federation).

It should be noted that the freedom of entrepreneurial activity may be limited in the interests of society to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state. In practice, in order to achieve the above goals, the freedom of entrepreneurial activity is limited by the mechanism of licensing its individual types.

2. The principle of unity of economic space, free movement of goods, services and financial resources(part 1, article 8, article 74 of the Constitution of the Russian Federation). The essence of this principle is to prevent the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources on the territory of Russia.

Restrictions may be introduced only in accordance with federal law, if it is necessary to ensure safety, protect the life and health of people, protect nature and cultural values.

3. The principle of legal equality and inviolability of private, state, municipal and other forms of ownership(Part 2, Article 8 of the Constitution of the Russian Federation). The essence of this principle lies in the fact that in Russia all forms of ownership are equally recognized and protected.

Along with these principles in the legal literature are also referred to as the principles of business law, making a profit as the goal of entrepreneurship; legality in entrepreneurial activity; combination of private and public interests in business law; state regulation entrepreneurial activity.

None of these principles is normatively fixed either in the Constitution of the Russian Federation or in other normative legal acts. Consequently, these provisions can be considered only doctrinal principles of legal regulation of entrepreneurial activity. At the same time, the proposed V.V. Laptev's principle of making a profit as the goal of entrepreneurial activity is rightly criticized by other scientists.

As for the principle of legality, the majority of scientists consider it to be an industry-wide, general legal principle. Legality in entrepreneurial activity is usually understood as strict observance of the legal norms regulating it. Nevertheless, this principle is not enshrined in the Constitution of the Russian Federation as an independent one in any specific article. It only follows from a number of its provisions. Its selection is a consequence of the interpretation of the Basic Law of the Russian Federation and other regulatory legal acts, a consequence of interpretative activity.

As part of the civilistic approach to commercial (business) law, which considers business law as a sub-branch of civil law, scientists identify a different set of business law principles, considering them to be private law principles that manifest themselves in a special way in the field of business. Among the principles of commercial (entrepreneurial) law, they include the principles of:

• permissible direction of private law regulation;
• equality of participants in relations regulated by civil law;
• inviolability of property;
• freedom of contract;
• inadmissibility of arbitrary interference in private affairs;
• unhindered exercise of private rights;
• restoration of violated rights;
• judicial protection of violated rights.

However, the above provisions relate primarily to civil law and are neither the principles of entrepreneurial law, nor the principles of legal regulation of entrepreneurial activity due to the erroneous perception of entrepreneurial law as a sub-branch of civil law.

• See: Laptev V.V. Entrepreneurial law: concept and subjects. M., 1997.S. eight.
• See: Belykh V.S. Legal regulation of entrepreneurial activity in Russia. S. 42.
• See: Gadzhiev G.A. Protection of the basic economic rights and freedoms of entrepreneurs abroad and in the Russian Federation (experience of a comparative study). M., 1995. S. 137.
• See, for example: Alekseeva D.G., Andreeva L.V., Andreev V.K. Russian business law / ed. I.V. Ershova, G.D. Otnyukov; Belykh V.S. Legal regulation of entrepreneurial activity in Russia. S. 53.
• Only in Art. 15 of the Constitution of the Russian Federation contains the norm: “The Constitution of the Russian Federation has the highest legal force, direct effect and is applied throughout the territory of the Russian Federation. Laws and other legal acts applied in the Russian Federation must not contradict the Constitution of the Russian Federation. Bodies of state power, local self-government, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation.
• More details about different approaches understanding of entrepreneurial law will be discussed in the next paragraph of this chapter.
• See: Commercial (business) law: textbook: in 2 volumes / edited by V.F. Popondopulo. 4th ed., revised. and additional M., 2009. T. 1.

The application of business rules is subject to general requirements applied to the enforcement process. It should be noted that in the domestic doctrine law enforcement is interpreted in a broad and narrow sense. In the first case, it includes all cases of the implementation of previously established rules of law (objective law), including the addressees of the normative prescription. In the second case, law enforcement is understood only as such an embodiment of law in specific legal relations, which is mediated by acts of the authorities of the state, while the activities of the addressees themselves (in our case, business entities) are considered not as law enforcement, but as the exercise of law by their own actions of the addressees of the norm.

The application of the norms of the legislation on entrepreneurship requires, first of all, the identification of signs that allow us to talk about the possibility of extending the relevant rules to business entities.

To reflect the specifics of the regulation of business relations, the legislator uses at least three approaches.

First of all, the legislator directly in the Civil Code (other federal laws) highlights the rules addressed directly to entrepreneurs (for example, the norms of paragraph 4 of article 61, paragraph 1 of article 66, paragraph 1 of article 69, paragraph 3 of article 401 and other Civil Codes). The hypotheses of these norms directly indicate that the subjects of relations are entrepreneurs ( commercial organizations). So, in accordance with paragraph 1 of Art. 492 of the Civil Code, one of the parties to the retail sale and purchase agreement is precisely the entrepreneur; in accordance with par. 2 p. 1 art. 907 of the Civil Code, only an organization engaged in entrepreneurial activity can be a custodian in a warehouse storage agreement.

Secondly, in some cases the legislator uses techniques that indirectly indicate that these relations are entrepreneurial. At the same time, both the purpose of the contract and other elements of the contractual structure (subject structure, transferred property, etc.) can be used as a guide (sign). For example, only a credit institution (bank) can act as a guarantor under a bank guarantee (Article 368 of the Civil Code) or Insurance Company, and since these organizations general rule conduct entrepreneurial activities, operate on the basis of special licenses, then, therefore, at least one of the participants in the bank guarantee relationship is an entrepreneur.

AND, third, if the specifics of legal regulation of activities are not reflected at the level of legislation, then the state tries to fill the gap and take into account the peculiarities of regulating the activities of entrepreneurs at the level of special by-laws. For example, the Federal Law of December 10, 2002 No. 172-FZ “On currency regulation and currency control" ( SZ RF. 2003. M 50. Art. 4859) is an act of general importance, extending to relations with the participation of citizens, therefore, for regulation currency transactions between authorized banks-entrepreneurs there is a special act (see: Directive of the Central Bank of the Russian Federation of April 28, 2004 No. 1425-U “On the Procedure for Carrying out Foreign Exchange Transactions on Transactions between Authorized Banks” // Bulletin of the Bank of Russia. 2004. No. 33).

There are also features of the application of legislation on entrepreneurship in certain areas.

The relationship of an entrepreneur with the state, its bodies, local governments is based on known principles administrative dependence, subordination. But it would be wrong to interpret the relationship of an entrepreneur, for example, with regard to obtaining permission from the sanitary and epidemiological service to open a restaurant, as exclusively “vertical”, when such permission may or may not be given only at the will of this person. government agency. In fact, the law in its broadest sense puts the state (its bodies) and the entrepreneur to a certain extent in an equal (“mutually obligated”) position, since a well-organized economy excludes voluntarism. Therefore, when studying normative acts, one should take into account the limitations

(discreteness) of volitional decisions of the authorities. In particular, as a general rule, an entrepreneur is armed with the right to appeal against decisions made, and finally, he has the right to protect his rights and interests. So, in case of refusal in state registration of an entrepreneur, he has the right to appeal decision to the court (Article 23 of the Law on State Registration of Legal Entities).

The legal regulation of entrepreneurial property relations as a whole is subject to a general legal assessment of such rights (legitimate interests) and, due to the universality of the relevant norms, does not lead to significant differences.

Restrictions on the use, possession, use, disposal of property objects of entrepreneurs can be caused either by the status of a particular business entity (for example, if it unitary enterprise), or the requirements of the founders (owners), or the limits of expression of will formed at the legislative level. In particular, the rules on restrictions on the commission of big deals, interested party transactions and other transactions where the specifics of corporate relations require taking into account a differentiated procedure for making decisions on the alienation of property.

It should be noted that the concept of "business agreement" itself is absent both in the Civil Code and in other laws. This circumstance is explained in various ways and often provokes criticism. Entrepreneurial contracts and transactions in general contain common properties of the “contract” categories, but since they involve entrepreneurs who have special goals and whose activities are subject to a specific regime, there are differences. They relate to the possibility of participating in transactions (contracts), determining the rights and obligations of the parties, qualifying the agreements concluded, and the responsibility of entrepreneurs (see section 6 of the textbook). So, if an ordinary civil law contract under certain circumstances can be interpreted as gratuitous (having no equivalent fee), then this is impossible if it is defined as entrepreneurial. See, for example: Belykh V.S. Entrepreneurial contract: concept, types and scope of application // Civilistic research. Issue. 1. Sat. scientific, labor memory I.V. Fedorov. M., 2004. S. 123-132; Bogdanov E.V. Business agreement. M., 2003; Ilyushina M.N., Chelyshev M.Yu., Sitdikova R.I. Commercial transactions. M., 2005. S. 4-47.