Anachronism in using the notion of “an entrepreneur” to refer to a mandatory participant of a public contract

Abstract

According to the author, some of the norms of civil law, in particular the provisions regulating the procedure for concluding a public contract are objectively obsolete. Because of this the objective of the article is to study the concept of “an entrepreneur” through the prism of modern legal terminology.
 Based on the analysis of the relevant requirements of civil law, it has been indicated that the types of activities within the framework of a public contract may be carried out only by entrepreneurs. At the same time, taking into account the nature of entrepreneurship (commercial economic activity), the author has established the subjects of its implementation: legal entities of state and non-state forms of ownership, as well as individuals (individuals-entrepreneurs).
 For more detailed elucidation of the content of the term “an entrepreneur”, the author has considered certain types of commercial economic activity, which is carried out on the basis of a public contract. Thus, it has been noted that in case of retail trade, legal entities and individuals-entrepreneurs directly enter into a public contract only if their individual, independent and original economic activity involves the exchange of goods of an industrial and technical nature or intended to meet the personal needs of society to another specific commodity – money. The author has also determined that de jure public shipment by public transport means may be carried out only by legal entities publicly, but de facto public transport services of this kind are also carried out by individuals-entrepreneurs. The operator or provider of telecommunications – business entities that have the right to conduct activities in this sphere is determined as the subject of providing telecommunication services.
 The emphasis has been placed on the existence of a number of outdated terms in civil legislation concerning the conclusion of public contracts that contribute to the emergence of terminological confusion and complicate the understanding of these normative provisions both for ordinary citizens and for lawyers. In order to bring the provisions on public contracts of the Civil Code of Ukraine in line with other normative and legal acts in this area, the author has offered certain legislative changes.