Les contrats entre les personnes publiques russes et les entreprises privées

Abstract

In Russia, contractual relations between public and private entities are a recent occurrence : they did not exist in the Soviet era. Firstly, Soviet Law did not recognize thefree will of parties to an agreement. Only the Rule ofLaw could create rights and duties. Secondly, as public authorities, economie operators were only an emanation of the State and were not autonomous legal entities. The only relations were authoritarian and vertical (i.eplanification). The transition to a Constitutional State and to a market economy led to agreements thatgave rise to rights and duties. Constitutional Law decentralized the Russian State into various state-institutions and local govemments with separate powers. At the same time, civil legislation recognized private property and free enterprise and authorized collective entrepreneurship by non-state companies. Nevertheless, an analysis of various contracts with public entities shows the ambivalence of their position in the new legal system. The identification of the contracting party is sometimes difficult : is it a private or public entity ? is it a business or a non-business entity ? Moreover, under the current pricniple - as a reaction against the previous state-controlled System — property-relationships are a matter of civil law and are therefore governed by the principle of equality. But, when public entities enter into contracts with private companies, they fulfill their public functions and use special powers. Therefore, perfect equality with their contracting private parties is impossible to achieve. In order to identify and analyze the elements which form the general regime of these contracts, it is necessary to identify the contracting parties and the object of the contract.