Public Legal Entities Research Articles

Types of legal entities under public law in German doctrine and legislation

This article examines the concepts and types of legal entities under public law in German doctrine and legislation. The legal status of public legal entities is regulated by the provisions of the German Constitution, the German Civil Code, the Law on Administrative Procedures, the Law «On the Procedure for Consideration of Cases Under the Management of Administrative Bodies», the Law «On Administrative Courts». The author examines the issue of determining the criteria for the classification of legal entities, so legal entities under public law are created in an executive order, act to satisfy the public or public interest, have authority, operate in organizational and legal forms of an open type, are responsible for the activities of their officials, legal the regime of property has certain features, in particular, such property can be transferred for use by legal entities under public law. As a rule, legal entities under public law have a special scope of legal capacity, unlike legal entities under private law, in this regard, the article analyzes the doctrine of ultra vires. The author examines the procedure for creating legal entities under public law in Germany, the types of organizational and legal forms of legal entities under public law that carry out their activities in the form of a public corporation, public institution, public fund. The article considers the sources of property formation of legal entities under public law, in particular, it can be income from entrepreneurial activity, budget funds, contributions of members of public corporations, donations (for example, the German State Bank, the German Chamber of Commerce and Industry, the Prussian Cultural Heritage Fund). The article considers four types of public corporations: territorial, united, personal, real. A feature of the activity of public corporations in Germany is the presence of membership, unlike public institutions.

О возможности признания публично-правовых образований и лиц, выступающих по их специальному поручению, контролирующими должника и привлечении их к субсидиарной ответственности

One of the central legal concepts of insolvency (bankruptcy) as a complex branch of legislation in Russia is the so-called “controlling debtor”, which appears in disputes on bringing to subsidiary liability in bankruptcy proceedings. Traditionally, legal science and judicial practice consider as such individuals and legal entities that may determine the debtor’s behavior by virtue of legal or actual affiliation with the debtor. However, public-law entities and persons acting on their special instructions in the debtor’s management bodies escape from the field of view of doctrine and practice. In this connection, the authors in this article analyze the possibility of bringing public-law entities and persons acting on their special instructions to subsidiary liability within the framework of the Federal Law “On Insolvency (Bankruptcy)”. In the course of the study, the authors come to the conclusion that it is necessary to distinguish between subsidiary liability of public legal entities and persons acting on special instructions in the debtor’s management bodies. on special assignment in the debtor’s management bodies. In addition, the authors give a negative assessment of the possibility of bringing to subsidiary liability persons acting in the management bodies of the debtor by special order and on behalf of publiclaw entities, since there is no guilt - one of the mandatory elements of the offense. The relevance of the article consists in revealing the peculiarities of bringing to subsidiary liability of persons acting on special assignment on behalf of public-law entities.

Assessing the financial independence of the constituent entities of the Russian Federation

Subject. The article discusses the financial independence of the constituent entities of the Russian Federation. Objectives. The aim is to improve the methodology for assessing financial independence of constituent entities of the Russian Federation and its testing on the example of constituent entities of the Russian Federation included in the Volga Federal District. Methods. The study employs analytical, statistical, and comparative methods to analyze data on budget execution of constituent entities of the Russian Federation. Results. Based on the developed methodology, I assessed financial independence of constituent entities of the Russian Federation. It enabled to determine the dynamics and degree of differentiation of the level of financial independence of the constituent entities of the Russian Federation in 2020–2022. Conclusions. The offered methodology can be used to assess the financial condition of public legal entities to make informed management decisions.

The Russian Federation as a subject of financial law

The key characteristics of the legal status of public legal entities as subjects of financial law are publicity, authority, sovereignty, as well as the financial basis. Within the framework of financial activity, the unity of the system of public power and federally determined separation of powers between levels of government are combined. In this regard, it is especially important to determine the legal personality of public legal entities in financial law. Based on the analysis of the norms of the Constitution of the Russian Federation, as well as the norms of financial law, it can be concluded that of all types of financial legal relations, the Russian Federation independently participates only in budgetary legal relations. In budget law, the state has not only responsibilities for regulation, distribution and control, but also rights, among which the main thing is the right to its own budget. The federal budget is not the budget of any authority that drafted or adopted it, but represents a form of education and spending of funds throughout Russia, and in this context covers all subjects of law at the level: public entities, authorities, legal entities and individuals. Consequently, through budgetary powers, the Russian Federation interacts with all subjects of financial law, involving them, directly or indirectly, in legal relations regarding public funds.

Coordination by the Prosecutor of the Activities of State Bodies to Protect the Property Interests of the State

The article analyzes violations of laws detected by prosecutors that arise in the activities of state bodies authorized to carry out functions for the management, disposal and protection of state property, and suggests a mechanism for their resolution. Special attention is paid to the mechanism of interaction of the prosecutor with other state bodies, ways to increase the effectiveness of activities to protect the property interests of the state, in connection with which, based on the analysis of empirical material, in order to ensure consistency in the activities of authorized state bodies and strengthen the status of the prosecutor in the framework of protecting the property interests of the state, it is proposed to consolidate in the Federal Law of January 17, 1992. No. 2202-1 “On the Prosecutor’s Office of the Russian Federation” defines a new function of the prosecutor’s office in this area — “coordination of the activities of state bodies to protect the interests of the state in the field of property relations”, defining the concept of this legal definition, as well as formulations characterizing the subject, subjects and object of coordination activities. It is concluded that the implementation of this function in practice will contribute to the synchronization of the activities of all state bodies involved in protecting the property interests of the state and increase the efficiency of work on the recovery of property of public legal entities.

Механизм функционирования гражданского оборота

The work is devoted to identifying the ‘set’ of means through which the action of civil circulation occurs, in their unity forming the mechanism for the functioning of the latter as a legally significant sphere of society. It is noted that the understanding of this mechanism determines the effective legal regulation of this area, including ensuring its stability. Among such means, the following are highlighted: putting objects into circulation; actions of subjects of circulation to change the owners of objects; legitimation — acquisition of the status of independent participants in circulation by artificially created subjects (individual entrepreneurs, legal entities, public legal entities); primary identification as the registration of a specific subject in a certain information system (in the case of a circulation functioning partially or completely in the digital space). Taking this into account, the main popular areas of legislative work in terms of legal regulation of civil circulation are indicated.

Legal approaches to vindication of real estate by public legal entities

Legal approaches to vindication of real estate by public legal entities

Финансово-плановые акты как правовая форма финансовой деятельности публично-правовых образований

In the context of the development of modern science of financial law, it seems relevant to analyze financial planning acts as a legal form of financial activity of public legal entities. When distinguishing the forms of financial activity of public legal entities, two are traditionally pointed out: legal and non-legal. In the course of the research, both general scientific and private scientific methods were used: scientific abstraction, systematic, logical, analysis and synthesis, comparative legal and formal legal. Results are drawn that: a) the legal form is predominant, since it allows to give legitimacy to the financial activities of public legal entities; b) among the various elements of this form, the most specific are financial planning acts, understood as a type of legal acts containing plans for the formation of funds, the formation of their funds, the use of specific goals; c) along with the general features characteristic of financial planning acts, it is necessary to identify a number of specific features: regulation of an integral object, connection with the future, the presence of a special type of legal norm — planned. Discussion of the conducted research lies in the fact that it allows us to critically comprehend existing approaches to financial planning acts as a legal form of financial activity of public legal entities, and also contributes to the development of theoretical directions on this topic and the formation of educational materials devoted to the problem under consideration.

Formation of the Statehood of the Donetsk and Lugansk People’s Republics in 2014–2022 as a Factor of Legitimacy of Acts on Self-Determination of the Peoples of Donbass

The paper examines the process of formation and development of the Donetsk and Lugansk People’s Republics as public legal entities that arose after the self-determination of their peoples and the implementation of secession. The correlation of the principles of territorial integrity and the principle of self-determination is considered through the issue of the legal force of the decision taken at the referendum and its implementation. The paper analyzes the institutionalization of the results of the 2014 referendums and the acquisition of both public and international legal status by the republics through the exercise of full state power in the context of the loss of effective jurisdiction by the old power structures. To this end, the formation of public power in the republics is being investigated. The historical prerequisites for the formation of independent representative and legislative bodies, as well as their evolution, are considered. The implementation of effective control over the state of affairs in the republics with the consent and direct participation of the population is considered as in the case study of building executive power, developing its structure, the activities of courts, local governments, as well as the implementation of productive production activities within the DPR and LPR. It is concluded that the systemic interaction of educated institutions of government and society, their mutual trust, and the activities of directly elected institutions of representative democracy are the foundation of legitimate independent statehood and sovereignty of the republics

Участие публично-правовых образований в цивилистическом процессе: актуальные проблемы

The article examines the procedural aspects of the participation of the state, its subjects and municipalities, state authorities and local governments, officials as a party in civil and arbitration proceedings. It is shown that in a number of cases public legal entities exercise power within the framework of private law relations. At the same time, the civil procedural and arbitration procedural forms do not contain special rules for the consideration of disputes with their participation as a party to the case or a third party. The forms of participation of public entities in civil and arbitration proceedings are differentiated based on the nature of their interest in the case.

Tax control as a tool to curb the shadow economy

Subject. Numerous scientific works in the field of tax administration are devoted to the problems of tax regulation, the imperfections of current tax legislation, as well as the identification of the causes of the functioning of the shadow economy and ways of tax evasion. However, the issues of economic security of the state and tax control in its provision have been little studied today, despite the entry into force in the legal field more than six years ago of the Decree of the President of Russia dated May 13, 2017 No. 208 "On the Strategy of Economic Security of the Russian Federation for the period up to 2030". Thus, the object of the study is tax control, the subject is the effectiveness of on–site tax control as a factor in identifying and suppressing shadow activities in order to ensure the economic security of the country and its public legal entities. Purposes. To summarize approaches to the definition of the term "shadow economy", to distinguish methods for identifying factors of business fragmentation and optimizing the tax burden. Based on the data obtained, we propose an approach to the tax administration process that allows us to quickly respond to "risk signals" in the process of selecting candidates for tax control measures and further conducting tax audits, with a high probability of their effectiveness.Relevance. Tax control is an important regulator of the economic security of the state. The issues of its improvement in order to increase its efficiency and effectiveness have been important at all times. Currently, issues related to the shadow economy are one of the urgent problems affecting the economic development of the country and the functioning of tax systems. Understanding the term "shadow economy" and developing effective counteraction methods are important for tax authorities and society as a whole.Methodology. In the existing conditions of the study, the analysis of the database of tax authorities is carried out (without providing information about taxpayers), the analysis of judicial practice, and methods of logical and statistical analysis are also used. Thus, in the course of the study, the works of foreign and domestic authors were analyzed in order to study the terms "shadow economy" and "business fragmentation". The data of statistical reporting of tax authorities are analyzed, the dynamics of efficiency and effectiveness of on-site tax control are analyzed. The arbitration practice of court cases on the application of business fragmentation schemes by taxpayers has been studied and analyzed, which made it possible to identify a number of distinctive features of business fragmentation from its optimization in order to ensure the sustainable development of organizations (taxpayers) and, based on these indicators, propose a methodology for identifying tax evasion schemes in order to select candidates for on-site tax control.Conclusions. The conducted research allows us to develop the theoretical aspects of such concepts as "shadow economy" and "business fragmentation". Having analyzed the works of domestic and foreign researchers, the author substantiates his definition of the concept of "business fragmentation". The author provides a system of the most significant indicators that can be fully taken as the basis for risk benchmarks signaling the use of fictitious tax optimization schemes by the taxpayer.

К вопросу о реализации принципов контрактной системы: современный взгляд

The modern development of the Russian Federation is characterized by the search for a balance between effective functioning and optimization of costs for the implementation of functions assigned to public legal entities. One of the tools of such a balance is the implementation of the principles of the contract system, ensuring the satisfaction of state and municipal needs, which is associated with problems caused by both imperfection of legal norms and the dynamics of socio-economic development. In order to improve the application of norms that enshrine the principles of the contract system, the article analyzes certain basic ideas of public procurement, which demonstrated the difficulties of implementing legislative guidelines. The study allowed us to formulate a conclusion about the need to amend certain provisions of Federal Law No. 44-FZ dated April 5, 2013 "On the Contract System in the field of Procurement of Goods, works, and Services for State and Municipal Needs", which enshrine the principles of the contract system.

Participatory budgeting in Russia in conditions of economic instability

Subject. The article considers theoretical and methodological aspects of participatory budgeting development in Russia. Objectives. The aim is to substantiate the effects of using the participatory budgeting under economic instability. Methods. The study draws on general scientific methods of cognition (analysis, synthesis, induction, deduction, comparison, and analogy), and special methods of cognition (comparison of theoretical and practical material, expert method, systematization, and classification). Results. Changes in methodological aspects of budget planning significantly affected the implementation of budget policy. Budget planning is influenced by internal and external factors, and by entities with which public legal entities have to interact at the subnational level. The paper focuses on financial aspects of participatory budgeting, like the total amount of funding for participatory budgeting projects, the average cost per project, the number of funded projects, sources of funding. I investigated options for including participatory budgeting in the budget process of Russian regions and municipalities and identified two main ones used by public legal entities. Conclusions. The study substantiates why participatory budgeting is advisable to apply in conditions of economic instability and uncertainty. It highlights the effects of the development of participatory budgeting practices and specifics of their implementation at the municipal level. The findings can be useful for public authorities, local governments, and those involved in participatory budgeting.

The content of teaching law students to compile international legal documents during the integrated course

Importance. The integrated approach (subject-language integrated learning) creates methodological conditions for the formation of students in non-linguistic areas of training within the framework of an integrated course of two types of competencies simultaneously: foreign language communicative competence and professional competencies. The content of teaching foreign-language oral and written speech to law students is traditionally focused on Russian legislation. At the same time, graduates of the state legal profile in the course of their professional activities face the need to compile international legal documents. However, the selection of the content of teaching law students to compile international legal documents during the integrated course in a professional foreign language is not the subject of a separate study. In this regard, the purpose of the study is to select the content of teaching law students to compile international legal documents.Research Methods. The research is conducted on the basis of studying and summarizing materials of methodological works on the use of a foreign language for special purposes and subject-language integrated learning in teaching students of the field of Law, published in scientific journals of the Higher Attestation Commission of the Russian Federation’s list (K1, K2), as well as other scientific sources: monographs and textbooks on legal English.Results and Discussion. The content of teaching law students to compile international legal documents has been developed, including: a) claims and complaints to international organizations; b) bilateral agreements between two states; c) cooperation agreements between a state body of the Russian Federation and a state body of a foreign state; d) statements of claim, claims and petitions in protecting the interests of an organization (or public legal entities) in foreign courts; e) agreements on cooperation between domestic and foreign legal entities; f) purchase and sale and lease agreements with non-residents of foreign countries; g) import contracts.Conclusions. The relevance of the research lies in the content selection of teaching law students to compile international legal documents. The results obtained can be used in the development of curricula and educational materials for an integrated course for law students.

Волезамещающее решение суда по делам о предоставлении земельного участка, находящегося в государственной или муниципальной собственности

The article analyzes the procedure for obtaining possession of land plots in public ownership, on which a building or structure is located. The article presents the existing restrictions of contractual freedom when registering the specified land plot for use. Using the example of specific judicial acts, the author shows how judicial practice actually changes the provisions of land legislation, in connection with which it is concluded that it is necessary to make appropriate changes to it, in particular, regarding the consolidation of the obligation, and not the right of the rightholder of a building, structure or premises in them to issue a lease right to a land plot, the owner of which is public law education. It is necessary to summarize that the will-substituting decision is aimed at satisfying the legitimate interests of public legal entities and must comply with the imperative prescriptions of the law.

Deprivatization: current judicial practice

The article considers the legal framework and trends of judicial practice in claims for the recovery of previously privatized assets. The purpose is to identify risk factors for the deprivatization of enterprise property, as well as circumstances affecting the prospects of possible litigation. The authors used such research methods as logical, theoretical-prognostic, formal-legal, system-structural and legal modeling methods. The methodological apparatus consists of the following dialectical techniques and methods of scientific cognition: analysis, abstraction, induction, deduction, hypothesis, analogy, synthesis, typology, classification, systematization and generalization. The authors analyzed relevant legal cases within the context of legal regulation and doctrinal approaches to the interpretation of civil legislation. It is concluded that violation of the privatization procedure means the absence of the will of the public owner to property alienation. As a result, the public owner has the opportunity to claim property even from a bona fide purchaser. Shares in the authorized capital of companies, and individual objects (buildings, structures, movable property) are subject to deprivatization. The basis for the claim of property in favor of the state is most often the privatization of property classified as federal property, with the approval of only regional authorities as well as the privatization of property in respect of which prohibitions and restrictions are established. It is stated that the courts reject references to the expiration of the limitation period, at the same time, judicial practice regarding the application of objective limitation periods has only begun to form. Considering the specifics of the participation of public legal entities in civil turnover, the authors conclude that it is necessary to clarify the established practice of applying law by the Constitutional Court of the Russian Federation.

Current Issues of the Legal Regulation of Administrative Liability of Legal Entities

Introduction: the paper deals with the study of the conceptual rules of bringing organizations to administrative liability in the administrative tort legislation. There is a defect of their developing in the administrative legislation norms, which ultimately leads to the negative results of law enforcement. Attention is drawn to the various approaches of theorists and law enforcement officers on the issues under study. The alternative models of bringing organizations to administrative liability are proposed. Methods: the work uses the general scientific and specific scientific methods of cognition. Among them are the methods of interpreting legal norms, problem-theoretical, comparative law, systemic, structural, formal legal, functional, and intersectoral methods. Results: the contradiction between the conceptual rules governing the administrative liability of organizations and the general provisions of the administrative legislation, as well as their inconsistency with the general principles and goals of administrative punishment is revealed. The specific proposals are formulated to modernize the institution of administrative liability of organizations, which can be perceived by the legislator to improve it. Conclusions: the scientists have been using the term of public legal entity since the pre-revolutionary times. The nature, goals, and processes of creation, reorganization, and liquidation of private and public legal entities differ significantly. In this regard, it is necessary to introduce the concept of a public legal entity into the administrative legislation. Abandoning the behavioral concept of guilt of an organization in favor of a behavioral-psychological one will lead to the possibility of establishing the forms of guilt of a legal entity, as well as allow avoiding objective imputation when bringing them to justice.

Civil Law Analysis of the Category «Public Legal Entity»: A Case Study of such Legal Entities as Public Authorities

The paper analyzes the possibility of applying the categories «public legal entity» or «legal entity of public law» in civil law. The application of this category to legal entities — public authorities — can be explained by the problem of dualism of their legal status. This dualism is manifested in the fact that, participating in civil legal relations as independent entities, legal entities-public authorities do not cease to be part of the public authority mechanism, which affects the independence of their volition and expression of will, calls into question the existence of their independent interest, different from the interest of the entire public legal entity. Under certain circumstances, legal entities-public authorities may participate in civil law relations on behalf of and in the interests of the entire public legal entity. This complicates the differentiation of such forms in practice and requires its resolution in the science of civil law. As the type-forming features of public legal entities, the author highlights their inherent connection with the public legal entity that created them and the specifics of the legal regime of their property regulation. Applying an extensive set of methods, including comparative legal and formal legal methods and from the standpoint of a systematic scientific approach, the author comes to the conclusion that it is necessary to exclude the possibility of granting public authorities the legal status of legal entities and defining the public legal entities themselves — the Russian Federation, its constituent entities and municipalities — as public legal entities instead of the legal status sui generis. The paper provides a valuable description of the risks of such an innovation caused by an incorrect understanding of the essence of a public legal entity.

Правовые основы финансовой деятельности государства в контексте конституционной экономики

The existence of constitutional provisions on the financial activities of the state is an important element of the legal policy of any State. An analysis of domestic normative legal acts of public legal entities indicates that: a) the Constitution of the Russian Federation contains groups of norms regulating directly or indirectly regulating financial activities; b) Constitutions (Charters) of subjects of the Russian Federation are represented by several types of acts: reproducing the provisions of the Constitution of the Russian Federation; containing a separate chapter related to financial aspects of a particular territory; evidence of a scientifically sound approach to the legal support of financial activities.

Implementation of External Budgetary Control over Business Partnerships and Entities with Regional Participation in Constituent Entities of the Russian Federation

The paper analyzes the reasons for external state financial control over the activities of business partnerships and business entities with participation of the constituent entities of the Russian Federation, as well as the specifics of inspections of such business entities performed by regional control and accounting authorities. Based on the study of federal and regional regulatory legal acts, acts of the control and accounting bodies of the constituent entities of the Russian Federation, the practice of courts and the activities of control and accounting bodies, the author defines the problems of such control and analyzes the arguments of the audited entities used to protect their rights during control and the assessment of these arguments by the courts. The author concludes that it is necessary to include a list of objects controlled by sub-federal control and accounting bodies in Federal Law No. 6‑FZ dated 07.02.2011 «On General Principles of Organization and Activities of Control and Accounting Bodies of Constituent Entities of the Russian Federation, Federal Territories and Municipalities» in order to unify the approach to external budget control. The paper substantiates that finances, property and activities of these legal entities are subject to control exercised by regional bodies of external budget control due to the importance of these resources in the process of generating budget revenues of the relevant public legal entities, and the inspectors act primarily as representatives not of the shareholder or participant, but of public legal entities protecting public interest. It also gives them the opportunity to suggest ways to improve the regulatory framework of the region and the management processes of individual legal entities.