System of requirements for entrepreneurial activity. Requirements for business activities involving the transportation of passengers by road
General requirements for entrepreneurial activity 1. 2. 3. 4. 5. Classification criteria and types of requirements for business activities. General characteristics of the requirements for starting a business. General characteristics of the requirements for the process of entrepreneurial activity. Requirements for the quality of goods, works and services. Technical regulation. Standardization and certification. The concept of waste and its legal regime
Conditions for submitting requirements l l Availability of the subject - the bearer of interest Targeting of the requirement - stages of entrepreneurial activity Compliance with the legal form Compliance with the terms of implementation
Requirements for starting the implementation of PD l l l Registration of status Acquisition of legal capacity Registration of property Registration of equipment Registration of legal relations with hired employees
Requirements for production l l General for all economic entities Special - by type of business activity
Are common production requirements l l Organizations accounting Compliance vs. fire safety Compliance with sanitary and epidemiological requirements Compliance with environmental requirements
Types of PD results l l l Product (tangible and intangible benefits intended for sale) Financial result - profit (loss) Waste
What is not a commodity l l Raw iron ores (0701007, 0701101, 0708018) are not included in the class of commercial ores, they belong to the “zero” other-aspect grouping, formed according to characteristics that differ from the characteristics of the groups of the main classification division. Thus, society arbitrarily established an enterprise standard for extracted mineral raw materials without correlating this standard with the above provisions of the All-Russian Classifier of Products OK 005-93 and the All-Russian Classifier of Species economic activity, products and services OK 004 -93, as well as the design assignment of OJSC Korshunov Mining and Processing Plant. In this regard, it cannot be recognized that the enterprise standard is set for a mineral resource subject to taxation with a mineral extraction tax in accordance with Article 337 of the Code.
Literature on technical regulation l "TECHNICAL LAW: ABOUT THE SYSTEMIC CAUSES OF CRISIS PHENOMENA DURING THE RUSSIAN TECHNICAL REFORM" (A. N. Lotsmanov) ("Journal of Russian Law", 2008, No. 8) l "PRODUCT REQUIREMENTS: ORGANIZATIONAL STANDARDS OR TECHNICAL CONDITIONS " (Ya. E. Partsiy) (Prepared for the Consultant system. Plus, 2008) l "TECHNICAL REGULATION AT THE PRESENT STAGE" (L. K. Tereshchenko, A. V. Kalmykova, V. Yu. Lukyanova) (" Legislation and economics ", 2007, N 4) l "CONCEPT OF LEGAL SUPPORT OF TECHNICAL REGULATION" (L.K. Tereshchenko, Yu. A. Tikhomirov, T. Ya. Khabrieva) ("Journal of Russian Law", 2006, N 9) l "TECHNICAL REGULATION IN FOREIGN COUNTRIES" (V.I. Lafitsky) ("Journal of Russian Law", 2006, No. 9)
Technical regulations l technical regulations - a document adopted by an international treaty Russian Federation, ratified in the manner established by the legislation of the Russian Federation, or an intergovernmental agreement concluded in the manner established by the legislation of the Russian Federation, or a federal law, or a decree of the President of the Russian Federation, or a decree of the Government of the Russian Federation and establishes mandatory requirements for the application and execution of technical regulation objects (products, including buildings, structures and structures or processes of design (including surveys), production, construction, installation, commissioning, operation, storage, transportation, sales and disposal related to product requirements)
Technical regulations are adopted in order to: l l l protect the life or health of citizens, property of individuals or legal entities, state or municipal property; security environment, life or health of animals and plants; prevention of actions that mislead purchasers.
Contents of technical regulations l l l l radiation safety; biological safety; explosion safety; mechanical safety; fire safety; industrial safety; thermal safety; chemical safety; electrical safety; nuclear and radiation safety; electromagnetic compatibility in terms of ensuring the safe operation of devices and equipment; uniformity of measurements; other types of security
Federal Law – technical regulations l FEDERAL LAW dated 12/22/2008 N 268-FZ “TECHNICAL REGULATIONS FOR TOBACCO PRODUCTS” (adopted by the State Duma of the Federal Assembly of the Russian Federation 12/03/2008) l FEDERAL LAW dated 10/27/2008 N 178-FZ “TECHNICAL REGULATIONS” FOR JUICE PRODUCTS From fruits and vegetables ”(adopted by the State Duma of the Federal Assembly of the Russian Federation 10. 2008) L Federal Law of 22. 07. 2008 N 123 -FZ“ Technical Regulation on Fire Safety requirements ”(adopted by the State Duma of the Federal Assembly of the Russian Federation 04. 07. 2008) L Federal Law of 06.24.2008 N 90 -FZ "TECHNICAL REGULATIONS FOR BUTRIED FAT PRODUCTS" (adopted by the State Duma of the Federal Assembly of the Russian Federation on 06.11.2008) l FEDERAL LAW dated 06.12.2008 N 88 -FZ "TECHNICAL REGULATIONS FOR MILK AND DAIRY PRODUCTS PRODUCTS" ( adopted by the State Duma of the Federal Assembly of the Russian Federation on May 23, 2008)
The concept of a standard is a document in which, for the purpose of voluntary repeated use, product characteristics, implementation rules and characteristics of the design processes (including surveys), production, construction, installation, adjustment, operation, storage, transportation, sale and disposal, performance of work or provision of services are established.
Documents in the field of standardization l l l national standards; standardization rules, norms and recommendations in the field of standardization; classifications applied in the established order, all-Russian classifiers of technical, economic and social information; organization standards; codes of practice
Confirmation of conformity l l 1. 2. Voluntary confirmation of conformity is carried out in the form of voluntary certification. Mandatory confirmation of conformity is carried out in the following forms: declaration of conformity mandatory certification.
Consequences of service certification l l l according to newsletter Gosstandart of the Russian Federation dated July 11, 2003 N VK-110-28/2522 “On certification of services in the GOST R Certification System” in relation to mandatory certification of services, this means the following: - if in the agreement for certification of the applicant’s services with the certification body, inspection control is carried out was not provided for, then it is not expected to be carried out to confirm the validity of the certificate of conformity; - if the contract for certification of services provided for inspection control, then two situations are possible: 1st: the applicant refuses to conduct inspection control. This means a violation of the terms of the contract, which is regulated on the basis of the Civil Code; 2nd: the applicant agrees to conduct inspection control. In this case, the inspection control confirms that the certification service continues to meet the requirements for which it was certified.
Responsibility for violation of the requirements of the standards l l Civil (difference between the delivery package and the requirements of the standards) Administrative - Article 19. Violation of mandatory requirements state standards, rules of mandatory certification, violation of the requirements of regulatory documents to ensure the uniformity of measurements
Unity of measurements l l unity of measurements is a state of measurements in which their results are expressed in legal units of quantities and measurement errors do not go beyond established limits with a given probability; measuring instrument - technical device, intended for measurements; standard of a unit of quantity - a measuring instrument intended for reproducing and storing a unit of quantity (or multiple or fractional values of a unit of quantity) for the purpose of transferring its size to other means of measuring a given quantity; state standard of a unit of quantity - standard of a unit of quantity, recognized by decision an authorized state body as the source on the territory of the Russian Federation;
Article 40. Forced recall of products l l l 1. In case of non-compliance with the order or failure to comply with the program of measures to prevent harm, the state control (supervision) body in accordance with its competence, as well as other persons who become aware of the non-compliance by the manufacturer (seller, person performing functions of a foreign manufacturer) of a program of measures to prevent harm, has the right to apply to the court with a claim for a forced recall of products. 2. If the claim for a forced recall of products is satisfied, the court obliges the defendant to take certain actions related to the recall of products within the period established by the court, and also to bring the court decision no later than one month from the date of its entry into legal force to the attention of purchasers through means mass media or otherwise. If the defendant does not comply with the court decision within the prescribed period, the plaintiff has the right to take these actions at the expense of the defendant and recover the necessary expenses from him.
The concept of waste is the remains of raw materials, materials, semi-finished products, other items or products that were formed in the process of production or consumption, as well as goods (products) that have lost their consumer properties
Types of requirements for waste l l l l Article 9. Licensing of hazardous waste management activities Article 10. Requirements for the design, construction, reconstruction, conservation and liquidation of enterprises, buildings, structures, structures and other objects Article 11. Requirements for the operation of enterprises, buildings, structures , structures and other objects Article 12. Requirements for waste disposal facilities Article 13. Requirements for waste management on the territories of municipalities Article 13. 1. Requirements for the management of scrap and waste of non-ferrous and (or) ferrous metals and their disposal Article 17. Transboundary movement of waste
Requirements regarding hazardous waste l l l Article 14. Requirements for hazardous waste management Article 15. Requirements for vocational training persons authorized to handle hazardous waste Article 16. Requirements for transportation of hazardous waste
Article 248. Procedure for determining income. Classification of income l l l 1. For the purposes of this chapter, income includes: 1) income from the sale of goods (work, services) and property rights (hereinafter referred to as income from sales). 2) non-operating income.
Rules for determining income l l l Income is determined on the basis of primary documents and other documents confirming the income received by the taxpayer, and documents tax accounting. 2. For the purposes of this chapter, property (work, services) or property rights are considered received free of charge if the receipt of this property (work, services) or property rights is not associated with the occurrence of an obligation on the recipient to transfer the property (property rights) to the transferor (perform work for the transferor, provide services to the transferor). 3. Income received by a taxpayer, the value of which is expressed in foreign currency, is taken into account in conjunction with income, the value of which is expressed in rubles. Income received by the taxpayer, the value of which is expressed in conventional units, is taken into account in conjunction with income, the value of which is expressed in rubles. For the purposes of this chapter, amounts reflected in the taxpayer’s income are not subject to re-inclusion in his income.
Article 252 of the Tax Code of the Russian Federation. Expenses. Grouping of expenses Expenses are recognized as 1) justified and 2) documented expenses (and in cases provided for in Article 265 of this Code, losses), 3) incurred (incurred) by the taxpayer.
"Law and Economics", 2008, N 6
According to the current legislation, any person wishing to carry out business activities involving the transportation of passengers by road has the right to register as an entrepreneur and obtain the appropriate license. However, the subject must meet a certain system of requirements for this type of business activity.
The Civil Code of the Russian Federation, on the one hand, enshrines freedom of entrepreneurial activity, the ability of everyone to exercise their civil rights at their own discretion, and on the other hand, determines that certain types of activities can only be carried out on the basis of a license (Article 49 of the Civil Code of the Russian Federation). In development of this provision, Federal Law No. 128-FZ of August 8, 2001 “On licensing of certain types of activities” was adopted<1>(hereinafter referred to as the Federal Licensing Law) and others regulations, establishing the system of requirements for entrepreneurial activity. This seemingly inconsistency in legal regulation at first glance is caused by the need to achieve a balance of private and public interests.
<1>NW RF. 2001. N 33 (part I). Art. 3430 (as amended).
The requirements for business activities related to the transportation of passengers by road can be classified according to various reasons. Depending on the legal source The requirements established by the Civil Code of the Russian Federation (Chapter 40 of the Civil Code of the Russian Federation), the Charter of Motor Transport and Urban Ground Electric Transport, the Federal Law on Licensing, the Law of the Russian Federation “On the Protection of Consumer Rights”, and other legislation differ. Based on the object of legal regulation, there are requirements aimed at the safety and convenience of passengers, as well as requirements that ensure that state bodies carry out accounting and control functions in relation to the entrepreneur. Depending on the stage of entrepreneurial activity, the requirements and prerequisites that are presented at the stage of preparation for conducting entrepreneurial activity differ: state registration, obtaining a license, registration with government bodies, etc., as well as the requirements presented in the process of carrying out entrepreneurial activity.
Carrying out the transportation of passengers by road, the entrepreneur-carrier, in addition to participating as one of the parties to the contract of carriage, becomes a participant in the legal relations emerging in the field traffic. The legal regulation of these relations is aimed at road safety and is characterized by an imperative method of influence. Each road user, be it the owner of a vehicle or a person authorized to drive a vehicle, is subject to certain requirements and rules. These rules are mandatory for all road users, regardless of whether they carry out business activities or not.
In addition, a person who owns a vehicle by right of ownership or other legally, as the owner of the source increased danger extends its effect to a system of requirements aimed at maintaining the vehicle in technically sound condition, which, in turn, is ensured by compliance with the rules technical operation, organizing and carrying out maintenance and repairs Vehicle, exercising control technical condition vehicles and timely elimination of technical faults, as well as ensuring the security of vehicles to exclude the possibility of unauthorized use by unauthorized persons or damage to them. These rules are established for all vehicle owners, without exception, regardless of whether they carry out entrepreneurial activities or not.
Thus, it is necessary to distinguish between the requirements that apply to business activities related to the transportation of passengers by road, and the requirements aimed at road safety and addressed to road users and vehicle owners.
Since the activity of transporting passengers by motor transport is classified by the legislator as licensed (clause 62, part 1, article 17 Federal Law on licensing), the requirements that must be met when obtaining a license are the requirements for entrepreneurial activity itself.
Obtaining a license is a necessary prerequisite that a person must fulfill in order to exercise his right to engage in business activities related to the transportation of passengers by road. Based on the provisions of the Federal Licensing Law, this requirement includes several conditions called licensing conditions. They are established by the Regulations on licensing the transportation of passengers by motor transport, approved. Decree of the Government of the Russian Federation of October 30, 2006 N 637 (hereinafter referred to as the Licensing Regulations) and are determined by the peculiarities of transportation activities, during which vehicles are used, which are a source of increased danger, and the need to ensure the safety of life and health of people.
In total, the Licensing Regulations establish five licensing requirements and conditions, but in reality there are many more of them, since these norms are of a reference nature and it is very difficult in practice to determine a complete list of conditions that a person applying for a license must meet.
Depending on the focus, the requirements contained in the Licensing Resolution can be divided into three groups. The first group consists of requirements aimed at ensuring road safety (clauses “a”, “d”, “d”, “i” of paragraph 4 of the Resolution), the second group consists of organizational requirements necessary to perform the accounting and control functions of state authorities (clauses "e", "g", "z" of clause 4 of the Resolution), the third group includes requirements that relate to the implementation of business activities related to the transportation of passengers by road (clauses "a", "f" clause 4 of the Resolution).
An analysis of the provisions defining the composition of licensing requirements and conditions shows that the rules enshrined in them are often already contained in other legal acts. For example, the requirement contained in paragraphs. “a”, paragraph 4 of the Resolution, presupposes that the license applicant has ownership or other legal grounds for vehicles corresponding to their purpose, design, external and internal equipment technical requirements in relation to the carriage of passengers and those admitted in accordance with the established procedure to participate in road traffic.
This requirement includes the use of vehicles:
- passed the state technical inspection, the procedure and timing of which are established by the Rules for conducting state technical inspection of motor vehicles and their trailers in the Russian Federation, approved by Order of the Ministry of Internal Affairs of Russia dated November 5, 1993 N 482. Closely related to this requirement is the need to use vehicles that meet the requirements List of faults and conditions under which the operation of vehicles is prohibited (according to clause 11 of the Basic Provisions for the admission of vehicles to operation and the duties of officials to ensure road safety, approved by Resolution of the Council of Ministers - Government of the Russian Federation of October 23, 1993 N 1090 , as amended by Resolutions of the Government of the Russian Federation dated April 21, 2000 N 370, dated January 24, 2001 N 67, dated February 21, 2002 N 127, dated May 7, 2003 N 265, dated September 25, 2003 N 595);
- kept in technically sound condition, which, in turn, is ensured by:
compliance with the Rules for the technical operation of rolling stock of motor transport, GOST 25478-91 "Motor vehicles. Requirements for technical condition for traffic safety conditions. Test methods", manufacturer's operating instructions vehicles, other regulations and standards establishing safety requirements for the technical condition of vehicles;
organizing and carrying out maintenance and repair of vehicles in the manner and within the time limits provided for by the Regulations on maintenance and repair of rolling stock of motor transport, approved. Ministry of Automobile Transport of the RSFSR September 20, 1984;
monitoring the technical condition of vehicles before leaving the line and when returning to the parking lot; timely elimination of technical faults of vehicles;
ensuring the protection of vehicles to exclude the possibility of their unauthorized use by company drivers or unauthorized persons or damage to vehicles (clause 2.5 of the Road Safety Requirements for licensing transportation activities in road transport, approved by Order of the Ministry of Transport of the Russian Federation dated March 30, 1994 No. 15), etc.
Undoubtedly, compliance with this requirement is of great practical importance, since a vehicle malfunction often becomes the cause of a traffic accident. However, a person wishing to carry out entrepreneurial activities is subject to requirements that he must already fulfill on the basis of other regulations, being the owner of vehicles, regardless of whether he is an entrepreneur or wants to acquire the status of an entrepreneur. In our opinion, a situation is emerging in which the norms of a special Law - the Federal Law on Licensing, as well as the by-law adopted on its basis - the Resolution on Licensing - contradict the norms of the Civil Code of the Russian Federation, since they worsen the position of the entrepreneur by imposing requirements on him that are not relevant to the process of carrying out business activities, and regulatory relations in the field of road safety.
A similar situation arises when considering other licensing requirements and conditions. For example, the requirement, the fulfillment of which guarantees the passenger monetary compensation for harm caused to him during transportation, is that the license applicant has a contract of compulsory insurance of civil liability of vehicle owners. In our opinion, despite its importance, the requirement that the person applying for a license have a compulsory insurance contract for the civil liability of vehicle owners should be excluded from the licensing requirements and conditions, since the obligation for vehicle owners to insure their civil liability is provided for in Art. 15 Federal Law of April 25, 2002 N 40-FZ (as amended and supplemented) “On compulsory civil liability insurance of vehicle owners”<2>. As an object of compulsory insurance in in this case represent property interests associated with the risk of civil liability of the owner of the vehicle for obligations arising from causing harm to the life, health or property of victims when using the vehicle on the territory of the Russian Federation<3>.
<2> Russian newspaper. 2002. N 80.
<3>Clause 5 of the Decree of the Government of the Russian Federation of May 7, 2003 N 263 “On approval of the Rules for compulsory insurance of civil liability of vehicle owners.”
Thus, it is necessary to reduce the requirements for a person wishing to obtain a license to carry out business activities related to the transportation of passengers by road, leaving only those that are directly related to entrepreneurship and aimed at creating effective and competitive business entities. For example, the requirement for carriers - legal entities to carry out monthly reconciliations with territorial internal affairs bodies of information about road accidents involving their vehicles, in our opinion, is not directly related to the contract of carriage and is more related to the formation statistical information. Otherwise, the question arises: why does this obligation not apply to carriers who are individual entrepreneurs? After all, they are the majority among those carrying out transportation.
Similar attempts already exist in legal practice. Thus, the licensing requirement consists in the compliance of officials and specialists of the licensee (license applicant) qualification requirements, presented when carrying out relevant transportation by road transport, approved by the Ministry of Transport of the Russian Federation, is specified in Order of the Ministry of Transport of the Russian Federation dated June 22, 1998 N 75 “On approval of qualification requirements for specialists of legal entities and individual entrepreneurs transporting passengers and cargo by road transport " (hereinafter referred to as the Order). Action of this Order was challenged in the Supreme Court of the Russian Federation on the grounds that the requirement contained in the said Order that the license applicant must provide a diploma of higher education without legal grounds, it restricts the plaintiff’s rights to freely use his abilities and property for entrepreneurial and other economic activities not prohibited by law. However, the Supreme Court of the Russian Federation, in its Decision of January 11, 2005 No. GKPI04-1568, left K.’s application without satisfaction for the following reasons. The contested Order fully complies with the federal legislation of the Russian Federation on licensing and road safety and establishes one of the licensing requirements and conditions - compliance of an individual entrepreneur and employees of a legal entity with qualification requirements, which, in particular, include the appropriate education and necessary for the transportation of passengers and cargo Preparation. The applicant’s reference to the fact that documents evidencing the carrier’s qualifications should only be a driver’s license and medical certificate health status, which gives the right to drive a vehicle, cannot be taken into account, since these documents confirm only the existence of a special right to drive a vehicle of one category or another and do not indicate the appropriate qualifications of the carrier in the field of transporting passengers and cargo. Moreover, from the content of Art. 9 of the Federal Law “On Licensing of Certain Types of Activities” it follows that the provisions on licensing of specific types of activities may provide for the provision of other documents to obtain a license, the need for the provision of which is provided for by the relevant federal laws, as well as other regulatory legal acts, the adoption of which is provided for by law. By the ruling of the Cassation Board of the Supreme Court of the Russian Federation dated March 29, 2005 N KAS05-94 this Decision left unchanged and appeal- without satisfaction.
The court's conclusion does not seem to correspond to the meaning and principles of civil law. The legislator does not single out professionalism as a sign of entrepreneurial activity (Article 2 of the Civil Code of the Russian Federation). Opportunity to carry out business activities certain type ultimately determined by a person’s abilities, “success in the market”<4>and cannot be measured by a college degree alone. At the same time, refusal to issue a permit to carry out entrepreneurial activities on the grounds that a person does not meet the requirements established by departmental rule-making is a violation of the freedom of entrepreneurial activity enshrined in the Constitution of the Russian Federation and the Civil Code of the Russian Federation. The requirements for entrepreneurial activity should be determined by federal law, and not by government decree.
<4>Business law: Textbook. / Ed. E.P. Gubina, P.G. Lakhno. P. 28.
It appears that the person to provide real possibility concluding contracts for the carriage of passengers by road must meet the following conditions:
- the presence of a license applicant (licensee) on the right of ownership or on another legal basis of vehicles suitable for their purpose for the transportation of passengers.
The basic requirements that a vehicle intended for transporting passengers must meet, in our opinion, should be established by federal law, and not by a decree of the Government of the Russian Federation. Thus, in relation to the transportation of goods, the Civil Code of the Russian Federation establishes that the carrier is obliged to provide vehicles in a condition suitable for transporting the corresponding cargo (Part 1, Article 791 of the Civil Code of the Russian Federation). In addition to the requirements on the suitability of the vehicle for passenger transportation, it is possible to establish a scale of convenience and comfort of the vehicle for passengers, depending on the compliance of which it is possible to set a higher fare;
- the license applicant (licensee) has drivers with the necessary qualifications and work experience. Compliance with this requirement, in our opinion, is a serious prerequisite for carrying out business activities related to the transportation of passengers by road. Find a qualified driver in a relatively short period time seems difficult. Therefore, the staff of drivers must be completed by the time the application for a permit to carry out transportation is submitted;
- compliance by the licensee with the requirements for the organization and implementation of passenger transportation. Requirements for the organization and implementation of passenger transportation must be defined very specifically. These, in our opinion, include:
registration by an authorized government body of a constituent entity of the Russian Federation or a local government body of the route chosen by the entrepreneur and approval of the schedule;
provision of information for maintaining a register of organizations engaged in transportation by transport common use(in pursuance of Part 1 of Article 789 of the Civil Code of the Russian Federation);
compliance with the schedule and route.
First priority for uninterrupted operation transport has the organization of vehicle movement according to a specific schedule, as well as along an established route. This obligation is provided for by the Charter of Road Transport and Urban Ground Electric Transport<5>, mentioned in the legislation of the constituent entities of the Russian Federation<6>, acts of local government bodies.
<5>Russian newspaper. 2007. N 258.
<6>See, for example, Law Orenburg region dated July 5, 2001 N 259/295-//-OZ "On the organization, management and state (municipal) regulation in the field of automobile passenger transport in the Orenburg region."
Transporting passengers by road is a single process involving many carriers. Their activities must be coordinated with each other, taking into account the time when the need for carrier services increases. Failure by the carrier to comply with the vehicle traffic schedule disrupts the normal course of the entire transportation process. In our opinion, the requirement for the carrier to comply with the route of movement, established in the Charter of Road Transport and Urban Ground Electric Transport only in relation to regular transportation, should be extended to transportation on orders, with the exception of points of departure and destination. Compliance with the route ensures that passengers will be transported in an inspected area that meets safety requirements.
Other requirements for passenger transportation specified in the Licensing Resolution should be excluded from the licensing requirements, since they are aimed at ensuring road safety, as well as performing the accounting and control functions of government bodies. In our opinion, these requirements should be consolidated not as conditions, the fulfillment of which is necessary when transporting passengers by road, since they are already enshrined in other regulations, but as issues on which licensing authorities carry out control measures. For example, pp. "c" clause 4 of the Licensing Regulation imposes on carriers the obligation to comply with the provisions of Art. 20 of the Federal Law of December 10, 1995 N 196-FZ "On Road Safety"<7>basic requirements for ensuring road safety when carrying out activities related to the operation of vehicles used for the transport of passengers. However, the need to comply with this requirement arises due to the existence of this Law.
<7>Russian newspaper. 1995. N 245.
Licensing requirements and conditions for transporting passengers by road must be aimed at ensuring the passenger’s confidence that he will be delivered to the designated place at a certain time, that he will be comfortable while traveling to his destination, that the cost of the service provided to him will be economically justified, and correspond to the approved tariffs , and the service itself is affordable.
Our consideration in a generalized form of the requirements, the fulfillment of which is necessary when transporting passengers by road on the territory of the Russian Federation, showed that these requirements are contained in both legislative and by-laws, which are very diverse. Regulations apply in this area former USSR to the extent that it does not contradict current legislation. In the field of licensing transportation activities and ensuring road safety, state bodies of the constituent entities of the Russian Federation and local governments have the right to adopt relevant acts. Identifying an array of requirements from the entire legislation of the country for a person carrying out transportation is difficult: it is difficult for an entrepreneur to navigate the diversity and multiplicity of regulations governing the transportation of passengers. As practice shows, carriers sometimes do not even realize that they commit a lot of offenses in their activities.
One can agree with the point of view expressed in the legal literature: “optimal results in the field of proper legal regulation of business activities can be achieved only by regulating the relations that develop in the field of this activity in complex legislative acts”<8>. In this regard, it is proposed to adopt a federal law defining the legal basis for the transportation of passengers by road, including a closed list of licensing requirements and conditions, formulated very specifically, without reference to other legal acts; identify issues on which there should be interaction between carriers and authorities executive power subjects of the Russian Federation, local governments.
<8>Tolstoy Yu.K. Civil law and civil legislation // Jurisprudence. 1998. N 2. P. 142.
A.S. Pozdnyakova
Assistant Magistrate
(judicial site of Oktyabrsky district
Orenburg region),
civil specialist,
entrepreneurial, family
and international private law
^ State control over actions carried out with the participation of or in relation to natural monopolies . Such control can be preliminary and subsequent. Preliminary control provides for the mandatory submission to the relevant authority of a petition for consent to carry out a number of transactions, as well as other necessary information. For example, it is necessary to obtain prior consent for any transactions as a result of which a natural monopoly entity acquires ownership of fixed assets or the right to use fixed assets not intended for the production (sale) of goods subject to regulation, if the book value of such fixed assets exceeds 10 percent of the value of the equity capital of the natural monopoly subject according to the last approved balance sheet.
^ Subsequent control provides, for example, mandatory notification to the natural monopoly regulatory body of transactions to acquire more than 10 percent of the total number of votes attributable to all shares (shares) constituting the authorized (share) capital of the natural monopoly entity
^ Requirements for carrying out business activities
The requirements for entrepreneurial activity are contained in various regulatory legal acts and are correlated with its various aspects.
State regulation of business activities is carried out in the interests of various subjects. The subjects of such interest are the state, acting on behalf of society as a whole, counterparties of entrepreneurs, investors, consumers of goods, employees of enterprises, etc. Accordingly, on this basis - depending on the subject in whose interests the claims are made - a classification of claims can be carried out.
Requirements can be classified depending on addressee to which they are presented. A number of requirements apply to all business entities, while others apply to a certain category of entities. For example, the requirements for legal entities, individual entrepreneurs, and financial and industrial groups differ.
Requirements can be classified based on nature of activity. Thus, specific requirements are imposed when carrying out banking, insurance, investment and other types of activities.
You can also distinguish types of requirements depending on stages of activity. The legislation provides for requirements at the stage of preparation for conducting business activities. This includes registration, obtaining a license, registration with government agencies, etc. In the process of business, entrepreneurs must comply with environmental regulations, sanitation, standards and other requirements for product quality, requirements for the formation of the cost of manufactured products, accounting, fire safety requirements and etc. At the stage of implementing the results, it is necessary to fulfill financial obligations to the state through the payment of taxes and non-tax payments, and to submit accounting and statistical reporting. Certain requirements are also imposed at the stages of reorganization and liquidation of entities.
^ Business agreements
Transactions actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations are recognized, and agreement An agreement aimed at establishing, changing or terminating legal relations is considered. In other words, any contractual obligation, called in civil law by the capacious word “transaction” (purchase and sale, supply, exchange, lease, contract, etc.), must be formalized by an agreement. They are generally divided into the following types:
1)One-sided- A transaction for which the will of one party is necessary and sufficient. In particular:
Issuance of a power of attorney by an individual or legal entity to any other person to perform various legal actions;
Will, i.e. voluntary action of a citizen to dispose of his property in the event of death;
Donation, i.e. gratuitous transfer own property or part thereof to another individual (legal) person during his life and legal capacity.
2)^ Bilateral (multilateral) ) - Transactions that require at least the consent of two parties, which can be various combinations of both individuals and legal entities.
3)Consensual- transactions (agreements) that come into force after the parties have reached an agreement on all existing conditions and formalized it in accordance with the law.
4)Real- transactions (agreements), for the validity of which, in addition to conclusion in the form required by law, the actual transfer of things or money is necessary.
5)Preliminary- an agreement under which the parties undertake to enter into a future agreement on the transfer of property (performance of work, provision of services) on the terms of the main agreement in accordance with the requirements provided for by law.
6)^ Agreement under a suspensive (cancelative) condition - a transaction in which the parties made the emergence of rights and obligations dependent on the circumstances.
7)Writing- a transaction signed by the parties or representatives on the basis of certain requirements established by the legislation of the Republic of Kazakhstan.
8)Oral- transactions executed at their very completion, when the will of the person to complete it is clear from the behavior of the person. Confirmed by the issuance of a token, ticket or other sign.
9)Notarial- a type of written transaction completed after notarization, in accordance with established legislative acts or agreement of the parties.
10)Paid- an agreement under which a party must receive payment or other consideration for the performance of its obligations.
11)Public- an agreement concluded by a commercial or other organization that establishes its obligations to sell goods and perform work (services) in relation to everyone who contacts it.
12)Mixed- an agreement containing elements of various agreements provided for by law.
13)Exchange- agreement on the transfer of rights and obligations in relation to goods, valuable papers and other property admitted to circulation on the exchange, in accordance with the law and exchange charters.
14)^ Imaginary (mock) - a transaction made for show without the intention of causing legal consequences or with the aim of covering up another transaction.
15)Invalid- a transaction is considered invalid if the requirements for form, content and participants, as well as their freedom of expression, are violated.
16)^ Agreement on alienation of property - the content of contracts of sale, exchange, donation, etc. is regulated.
17)Intermediary- reveal the content of legal or actual actions in the interest of others.
offer- this is an offer to conclude an agreement, and acceptance- acceptance of this proposal.
Thus, important has a date for fulfillment of certain duties. Therefore, in civil law norms, incl. terms are usually divided into:
Imperative and dispositive;
Definite and indefinite;
General and private;
Defined by time intervals and in the form of a “point in time”.
Speaking about the form of concluding an agreement, it is necessary to emphasize that in economic life, as a rule, written ones are common, which in turn are divided into simple and notarial. In accordance with the Civil Code of the Republic of Kazakhstan, mandatory written form of transactions is established for the following cases:
Carried out in the process of entrepreneurial activity;
Exceeding 100 monthly calculated indicators (hereinafter referred to as MCI);
In other cases provided for by law or agreement of the parties.
Besides, the transaction (agreement) may be invalid at:
Lack of consent of at least one of the parties, i.e. under the influence of delusion, violence, threat, deception;
Failure to comply with the form established by law or the content contradicting the requirements of the law;
Violation of the subjective composition of participants, i.e. participants are persons who do not have the right to do so;
Lack of license;
Pursuing the goal of unfair competition and the presence of intent to commit a crime.
IN general view any contract must include three main parts: introductory, substantive and concluding.
^ Introductory part and details of the contract :
The drawing up of any contract must begin with its details, i.e. indicating the type of contract, which individualizes and facilitates its interpretation. Next, it is necessary to establish its number, date and place of signing, which are the criterion for assessing the legal capacity and capacity of the persons who made the transaction, and determining the form of the agreement.
The water part of the agreement defines the entities entitled to enter into an agreement. Here the full names of the counterparties' companies are indicated, under which they are entered in the unified register of state registration, i.e. the legal status of the parties, as well as their conventional abbreviated names under which they appear in the text of the contractual obligation (for example, “Seller” and “Buyer”, “Supplier” and “Recipient”, “Lessor” and “Tenant”, etc.) .
Particular attention should be paid to the official status and powers of the persons signing this agreement. In addition, in the introductory part of any contract it is mandatory to indicate the name of the document from which the authority of the official to sign the contract follows.
Based on the charter, the heads of companies, enterprises and organizations have the right to conclude contracts without a power of attorney. Other persons - deputy managers, vice presidents, heads of branches and representative offices - must act on the basis of an issued and properly executed and certified power of attorney.
^ Contents of the agreement , in relation is the most important section of the contract; it can be noted that its volume, structure and essence depend on the type and competitive circumstances of the transaction. In other words, the contract has a subject - something about which an agreement is concluded between the parties.
^ In the final part It is mandatory to indicate:
Conditions for changes and additions, terms of validity and extension of the contract.
The number of copies drawn up by the parties to the agreement and their storage location;
Number and content of annexes to the agreement;
Legal addresses, payment details and signatures of the parties.
All contracts concluded (by the manager or on his behalf by another employee) must promptly undergo an approval procedure by the relevant services (lawyer, accountant, economist, etc.) before they are signed. It is advisable to formalize the approval procedure and the list of experts by order of the head of the enterprise. Moreover, all contracts signed for execution must be registered in the registration journal
^ Legal regulation of advertising activities
The main legislative act regulating relations arising in the process of production, placement and distribution of advertising is the Federal Law of July 18, 1995 “On Advertising” (hereinafter referred to as the Advertising Law). It regulates relations arising both in the commodity and in the financial market. The Advertising Law does not apply to political advertising.
Requirements for advertising of certain types of goods and services are contained not only in the Law “On Advertising”, but also in other acts. Thus, advertising of medicines is carried out in accordance with Art. 16 of the Law on Advertising and Art. 44 of the Federal Law of June 22, 1998 “On Medicines” Advertising of pesticides and agrochemicals is carried out in accordance with Art. 17 of the Federal Law of July 19, 1997 "On the safe handling of pesticides and agrochemicals." The requirements for advertising on the securities market are determined by Ch. 9 of the Federal Law "On the Securities Market". Order No. 410 of the Ministry of Internal Affairs of the Russian Federation of July 7, 1998 approved the Instructions on the placement and distribution of outdoor advertising on vehicles
a) distributed in any form (oral, written, using pictures, graphs, etc.);
b) distributed through any means (mass media, vehicles, etc.);
c) about an individual or legal entity, goods, ideas, undertakings;
d) which is intended for an indefinite number of persons;
e) the purpose of which is to form or maintain interest in the physical, legal entity, goods, ideas, initiatives;
f) which, as a result of increased interest in goods, ideas, and undertakings, contributes to their implementation
advertiser - a person who is a source of advertising information for the production, placement, and subsequent distribution of advertising.
advertising producer - a person who fully or partially reduces advertising information to a form ready for distribution.
advertising distributor - a person who places and (or) distributes advertising information by providing and (or) using property, including technical means radio broadcasting, television broadcasting, as well as communication channels, airtime, and other means
consumers of advertising, that is, legal entities or individuals to whose attention advertising is or may be brought to the attention of which results in or may result in a corresponding impact of advertising on them
Advertising must be understandable to a consumer who does not have special knowledge.
Advertising must be recognizable without the use of technical means as advertising at the time of its presentation.
Since the advertisement is addressed to an indefinite number of people, it must be distributed in Russian on the territory of the Federation. Advertising may be additionally distributed in the state languages of the republics and the native languages of the peoples of the Russian Federation, at the discretion of advertisers.
If the advertiser's activity is licensed, the advertisement must indicate the license number and the authority that issued it.
Advertising of goods subject to mandatory certification must be accompanied by an appropriate mark.
Advertising of goods prohibited for production and sale on the territory of the Russian Federation is not allowed.
The use of objects of exclusive rights in advertising is permitted only in the manner prescribed by the legislation of the Russian Federation.
Advertising should not incite violence, aggression, incite panic, or encourage dangerous actions.
Advertising that violates the interests of minors is not permitted. In addition, in accordance with the provisions of the Law on Advertising, inappropriate advertising is not allowed, that is, advertising that violates the requirements for its content, time, place and method of distribution, in particular unfair, unreliable, unethical, deliberately false, hidden advertising
Unreliable is an advertisement that contains information that does not correspond to reality regarding various characteristics, properties, qualities of a product; its availability on the market; delivery options, warranty repairs, etc.
^ Unethical advertising - is an advertisement containing any kind of information that violates generally accepted norms of humanity and morality by using offensive words, comparisons, images in relation to race, nationality, profession, social category, age group, gender, language, religious, philosophical, political and other beliefs of individuals persons Unethical advertising defames works of art that constitute national or world cultural heritage; state or religious symbols, national currency.
^ Deliberately false advertising - one with the help of which the advertiser (advertising producer, advertising distributor) deliberately misleads the advertising consumer.
^ Hidden advertising- advertising that has an unconscious effect on consumer perception. Such information may be present in programs and publications that are not officially advertising. Hidden advertising can be distributed through the use of special video inserts (double audio recording) and other methods
^ State regulation of advertising activities can be divided into normative and organizational.
Regulatory regulation is carried out through the establishment in acts of competent state bodies of rules for carrying out advertising activities and responsibility for violating these rules.
Organizational regulation is carried out by competent government bodies, among which the Ministry of Antimonopoly Policy and Entrepreneurship Support should be mentioned first of all.
^ Responsibility in the field of business activity
The activities of an entrepreneur are associated with the obligation to fulfill obligations specified in contracts and other documents, as well as the rules for conducting business activities established by law.
Liability for violation of obligations is regulated by the Civil Code (Chapter 25). If one of the parties refuses to fulfill obligations, claims for recovery of losses, penalties and debts are resolved in the economic court
Violation of the rules for conducting business activities established by law is regarded as an administrative violation
The only law regulating liability for administrative offenses is the Code of the Republic of Belarus on Administrative Offenses (CAO). The norms of other legislative acts providing for administrative liability are subject to inclusion in the Code of Administrative Offenses
The Code of Administrative Offenses determines which acts are administrative offenses, establishes the grounds and conditions of administrative liability, and establishes administrative penalties that can be applied to individuals who have committed administrative violations, as well as to legal entities found guilty and subject to administrative liability in accordance with the Code
Administrative liability is expressed in the application of an administrative penalty to an individual or legal entity
The main administrative penalties are:
Warning (applies to individuals only)
Fine
Correctional labor and administrative arrest
The following can be used as the main and additional ones:
Deprivation of special rights
Deprivation of the right to engage in certain activities
Deportation
The following are additionally used:
Confiscation
Recovery of the cost of the subject of administrative penalty
Administrative offenses in the field of entrepreneurial activity are regulated by Chapter 12 of the Code of Administrative Offenses and provides for liability that can most seriously affect the activities of the business entity held accountable, up to and including ruin (bankruptcy).
Under innovation(innovations) understand final result creative activity, implemented in the form of a new or improved product (work, service).
^ Innovation activities - this is the activity of developing and implementing innovations. It includes research and development work, personnel training, production organization, marketing research and organization of the sales market, intermediary and other activities aimed at creating or improving goods (works, services). The goal of innovation is to increase production efficiency, gain advantages in competition and, as a result, receive additional profit
Depending on the innovation sphere, that is, the sphere of activity of entrepreneurs, innovations are distinguished in industry and in service sectors. There are two types of innovation in industry:
product, that is, implemented in the form of a technologically new or improved product, whose characteristics (functional features, design, additional operations, materials and components used) or intended use are fundamentally new or significantly different from similar previously produced products;
process, that is, implemented in the form of a technologically new or improved production method, for example, a method of organizing the production process.
^ Sources of financing for innovation activities serve:
own funds of organizations, including profit, inclusion of costs in the cost of products, works, services;
borrowed funds;
raised funds, for example, received from the sale of securities;
funds from the corresponding budget;
funds from extra-budgetary funds (Russian Fund for Technological Development, Conversion Fund, Economic Stabilization Fund);
funds from international organizations.
^ Object of innovation activity are all types of innovations that can be embodied in goods, works, services so that these products can be considered new or improved, that is, they acquire the status of innovations. Objects of innovation activity can be: objects of intellectual property (inventions, utility models, industrial designs, etc.); means of individualization of persons and goods (company name, trademark, service mark, name of place of origin of goods); results of completed research, development, technological work and experimental developments and etc.
The legislator took a differentiated approach to resolving the issue of the moment of emergence and the grounds for the protection of intellectual property objects and means of individualization equal to them under the legal regime. There are three systems of legal protection:
registration system - operates in relation to those objects in which the substantive element of creativity comes first: inventions, utility models, industrial designs, brand names, trademarks, etc. Since this is not a unique result of creativity, it can be repeated, and therefore, for legal protection to arise, it is necessary to conduct an examination, issue a special act of a state body (register), issue a title document (patent, certificate);
creative system - lies in the fact that the right to these objects arises due to the very fact of their creation, giving an objective form, and legal protection - from the moment of creation. This system legal protection applies to copyrighted objects;
confidentiality system - when the basis for protection is the need to keep the object secret and protected from unlawful interference by third parties. This system is used, for example, to protect know-how.
One legislative act There is no definition yet that defines the concept, types of innovation, and the procedure for carrying out innovative activities. By-laws of different levels regulate certain aspects of the innovative activities of organizations. For example, Resolution of the State Statistics Committee of Russia dated August 3, 1998 No. 80 (as amended on March 30, 2000) approved the form of federal state statistical monitoring of technological innovations of an enterprise (organization) and instructions for filling it out, and Resolution of the Government of the Russian Federation dated July 24, 1998 No. 832 approved the concept of innovation policy of the Russian Federation for 1998-2000. The role of acts of the Russian Agency for Patents and Trademarks is great.
^ Legal basis of the innovation process currently is the legislation in the field of intellectual property. Special laws have been adopted defining the legal regime of inventions, utility models, industrial designs, computer programs and databases, topologies of integrated circuits, trademarks, service marks, appellations of origin of goods. Legal regime some objects of innovation activity are formulated only in the form general concepts norms of general legislation (company name, trade secret) or not defined at all Russian legislation(discoveries, rationalization proposals).
Innovative relations are also regulated by international treaties and agreements (Paris Convention for the Protection of Industrial Property, Eurasian Patent Convention, etc.).
Basic legal form government regulation are legal acts. These are numerous legal acts regulating the procedure for the creation and implementation of innovations, as well as other acts aimed at creating a market innovation infrastructure
Entrepreneurship is the expedient activity of citizens and their associations,
aimed at the production and sale of goods and services and making a profit from these activities. Business rights and responsibilities are regulated by state laws. Laws define rights and obligations, and also define the competence of the state in all areas of activity and the limits of its intervention in the work of the enterprise. The use of state control and influence is rational in those areas, industries, regions, situations and phenomena of the socio-economic life of the country where problems have arisen or may arise that are not automatically resolved by the enterprises themselves, while the solution to these problems is urgently necessary for the normal functioning of the economy in in general and enterprises in particular; maintaining social stability in society.
All enterprises (private, cooperative, joint-stock, commercial and non-profit, etc.) are not exempt from state control, which is exercised over:
1) income of the enterprise and payment of taxes by it;
2) the sanitary condition of production;
3) the purpose of the product and its technical level;
4) compliance with standards and technical conditions of production;
5) legal protection of hired personnel;
6) some other aspects of the enterprise’s activities.
Economic and legal control, and very strict control, is carried out in all countries of the world. The legislation stipulates that the enterprise bears full responsibility for all types of its activities, including:
1) for observing the interests of the state and the rights of citizens;
2) for compliance with laws;
3) for the safety of the environment;
4) for increasing the property entrusted to him by the state or shareholders;
5) for increasing production efficiency.
It is stipulated that the activities of the enterprise should not violate the normal operating conditions of other enterprises and organizations, worsen the living conditions of citizens in the adjacent territory, or worsen the working conditions of personnel. In this case, the state or government body, as a rule, is not liable for the obligations of the enterprise. Enterprises, in turn, are not liable for the obligations of the state and other bodies.
The administration of the enterprise is obliged to create normal conditions labor for staff. Decisions on social and economic issues must be made with the participation of the workforce, directly or through trade unions. A labor agreement is concluded between the enterprise and the workforce, which sets out mutual obligations:
1) according to sanitary conditions;
2) on work safety;
3) the operating conditions of the enterprise and its divisions, including work shifts and the duration of one shift;
4) the duration of vacations and the amount of their payment;
5) conditions and forms of remuneration for various categories of workers, etc.
Local authorities and Not commercial organizations, as well as other commercial organizations, do not have the right to interfere in the implementation of the internal economic and administrative functions of the enterprise. They can only act as
bodies monitoring the legality of the economic activities of the enterprise, make their proposals and demand that the management of the enterprise comply with the current legislation.
