Legal regulation of economic relations concept. Regulation of economic relations in the Russian Federation. Constitutional principles of regulation of economic relations in the Russian Federation

LEGAL REGULATION OF ECONOMIC RELATIONS

1.1. Economic relations as a subject legal regulation

At its core, law is the regulator of social relations. Its purpose is to streamline the life of society, to ensure its normal functioning and development. However, not all social relations, not all spheres of society are equally subject to legal regulation. It should be remembered that before law and with it, customs and traditions, morality, religion, which also act as the most important regulators of social relations, existed and still exist. And only together they can ensure the normal development of society. And in various fields the life of society, the role of each of these social regulators is not the same.

There are such spheres of the life of society, in the regulation of which the law does not play the leading role. And there are also such relations that are not subject to legal regulation at all (these are, first of all, deeply personal, intimate, relationships: love, friendship, etc.).

As for the economy, it refers to those areas in which the role of law is traditionally significant. Economic relations have always - of course, from the moment the law appeared - have been the subject of legal regulation. Naturally, this regulation had its own specifics in different historical epochs and under different economic systems. It has its own characteristics and legal regulation of economic relations in the conditions market economy.

At first glance, it may seem that a market economy does not need legal regulation at all - after all, one of the cornerstones

this economic system is freedom economic activity. However, it would be a big mistake to think so. Life itself, practice shows the failure of such a view of the market economy.

First, the legal regulation of the market economy is necessary in order to protect the interests of society and the state. The experience of almost all countries with a market economy shows that "absolute economic freedom" is always associated with abuses - the appearance on the market of low-quality goods, works and services, sometimes posing a danger to the life and health of consumers, the emergence of fraudulent business structures that "irrevocably" attract citizens' savings and many other "costs".

One of the most dangerous consequences of such "freedom" is the disappearance of free competition and the dominance of monopolies. Competition is one of the most important mechanisms that ensure the efficiency of a market economy. Monopolies, on the other hand, allow individual producers to make super profits without worrying about production efficiency, product quality, etc. This state of affairs is beneficial for monopolists. For consumers, for society as a whole, for the state - it is a danger that is difficult to overestimate. Therefore, in all civilized countries, the most important element of the mechanism for regulating a market economy is antimonopoly legislation.

On the other hand, the legal regulation of economic relations in a market economy is necessary to ensure the rights and interests of entrepreneurs themselves. Indeed, genuine, and not imaginary, freedom of economic activity does not exclude, but presupposes its certain regulation.

Entering into various relationships among themselves, with consumers, with the state, entrepreneurs are interested in ensuring that these relationships are orderly, predictable, built in accordance with certain rules. Without using the potential of law, it is impossible to achieve this. Thus, there is every reason to assert that the legal regulation of economic relations is a necessary condition for the normal functioning of a market economy.

1.2. The concept and signs of entrepreneurial activity

In a market economy, the bulk of economic relations are relations that develop in the process of doing business. Let's see what she

represents.

The definition of entrepreneurial activity from the point of view of the law is given in Art. 2 of the Civil Code of the Russian Federation. In accordance with this article, entrepreneurial activity is an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.

From this definition, one can the following signs entrepreneurial activity:

1) independence;

3) risky nature;

4) registration in the manner prescribed by law of persons carrying out this activity.

Let us dwell on these signs in more detail. Independence as a sign of entrepreneurial activity includes organizational independence and property independence of the entrepreneur.

Organizational independence is manifested in the fact that the entrepreneur himself - without any instructions "from above" - decides what and how to produce, from whom to purchase the necessary raw materials and materials, to whom and at what prices to sell the manufactured products, etc.

Property independence implies that the entrepreneur has a separate, i.e. it is his own property, which he uses in the implementation of entrepreneurial activities. Not always such property is the property of the entrepreneur. There are business entities that own property on the right of economic management or

the right of operational management (this will be discussed in more detail in the next chapter of the textbook). An entrepreneur can own some part of the property, for example, on a leasehold basis. But in any case, the entrepreneur has the opportunity to independently use such property. The property independence of the entrepreneur is the basis of his organizational independence.

The risky nature of entrepreneurial activity lies in the fact that it does not always give the expected results. Due to a variety of reasons, both subjective (mistakes, miscalculations of the entrepreneur) and objective (changes in market conditions, default, natural disaster) nature, an entrepreneur can not only not receive the planned profit, but also go bankrupt, crash. It was the risky nature of entrepreneurial activity that led to the emergence of the institution of insolvency (bankruptcy) in civil law.

Focus on systematic profit - perhaps the most significant feature of entrepreneurial activity. Both from the point of view of everyday consciousness and from the point of view of science, entrepreneurial activity is, first of all, an activity whose purpose is to make a profit. Other signs of entrepreneurial activity are, in a certain sense, secondary, derived from this sign. At the same time, it should be borne in mind that from the point of view of the law, in order to qualify an activity as an entrepreneurial one, it is not necessary that as a result of its implementation, a profit was actually received. What matters is the purpose

to receive it. Whether there will actually be a profit or not is important for resolving other issues, in particular taxation issues.

On the other hand, to be considered entrepreneurial, the activity must be aimed not just at obtaining, but at the systematic receipt of profit, that is, carried out more or less regularly. Therefore, transactions aimed at a one-time profit cannot be considered as entrepreneurial activity.As for such a sign of entrepreneurial activity as the registration of persons engaged in this activity (state registration), it is not always included among the main ones. Some authors regard it as formal, pointing out that if there are three other signs listed above, the activity will be entrepreneurial, even if it is carried out without registration.

Such a view of state registration as a sign of entrepreneurial activity is not entirely correct. Indeed, from the point of view of the economic content of entrepreneurial activity, the presence or absence of state registration is not significant. But from the point of view of law, this sign is very significant. In case of its absence, illegal entrepreneurship will take place - an offense for which administrative, and under certain conditions, criminal liability is provided.

And one more important remark. Entrepreneurial activity, being dominant in a market economy, does not exhaust the entire economic life of society. As we will see later, among economic entities there are those for which entrepreneurial activity is of secondary importance (for example, foundations, religious organizations), and those that do not carry out entrepreneurial activity at all, while being participants in economic legal relations (many housing and construction , garage cooperatives, etc.).

This means that the concepts of "entrepreneurial activity" and "economic activity" are not identical even in market conditions. The second concept is broader and includes the first as a part. Therefore, in a number of cases - if the subject of conversation is not specifically limited to entrepreneurial activity - it is correct

it is impossible to talk about subjects of economic, not entrepreneurial activity, about economic, not entrepreneurial legal relations, about economic, not entrepreneurial law.

1.3. Economic law and its sources

Economic law is a set of legal norms that regulate relations that develop in the process of implementation economic activity.

It is important to keep in mind that business law is not a separate, independent branch of law along with, for example, civil, labor and other branches that you know from the course of the fundamentals of law, but the so-called complex branch of law, which includes the norms of several branches: constitutional, civil, financial, administrative and some others.

This point is important to take into account, in particular, when characterizing the sources of economic law.

As you know, sources of law are understood as ways of expressing, fixing and existence of legal norms. At different times and in different countries, legal custom, legal precedent, normative legal act, normative contract acted and act as sources of law. Currently, in our country, as in most other countries of the world, the main source of law is normative legal acts - official documents adopted by the competent authorities in the prescribed manner and containing the rules of law.

Regulatory legal acts are divided into two large groups (two types):

1) laws that have the highest legal force;

2) subordinate normative legal acts adopted on the basis of and pursuant to laws.

In turn, each of these groups has its own hierarchy of legal acts.

As for laws, at the top of the pyramid of these legal acts is the Constitution - the Basic Law of the country. Then follow federal constitutional laws, ordinary federal laws and laws of the subjects of the federation.

Each of the lower laws in this pyramid cannot contradict the higher one.

Among ordinary laws, codified acts deserve special attention - sectoral codes, which are the main sources of law for the respective industries.

As for the by-laws, the decrees of the President of the Russian Federation and the Government's decrees have the greatest legal force. Russian Federation.

This is followed by departmental regulations (orders, instructions, etc., documents from various ministries and departments), local (regulations of local government bodies and local self-government) and local (intraorganizational) regulations (i.e. e. acts issued and in force within individual enterprises, institutions, organizations).

Among the sources of economic law, we find normative legal acts belonging to all groups and subgroups of the system of normative legal acts and located on all levels of their hierarchy. Let's characterize the most important of them.

The most important, fundamental norms of Russian economic law are enshrined in the Constitution of the Russian Federation. They can be regarded as the principles of economic law, that is, the fundamental principles from which all other norms of economic law proceed. These include:

Unity of economic space;

Free movement of goods, services and financial resources;

Support for competition;

Variety of forms of ownership;

Freedom of economic activity, including the right of everyone to entrepreneurial activity.

The next most important source of economic law in our country after the Constitution of the Russian Federation is the Civil Code of the Russian Federation.

It contains the legal norms regulating such important relations for economic activity participants as property relations, obligation relations, including contractual (purchase and sale, supply, contract, capital construction etc.) and others.

Among the codified acts, in addition to the Civil Code of the Russian Federation, the Tax Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Criminal Code of the Russian Federation can be considered as sources of economic law. They also contain legal norms that directly relate to business entities, establishing penalties for offenses in this area.

The most important sources of economic law include a number of federal laws regulating certain aspects of economic activity: “On joint-stock companies”, “On banks and banking”, “On Accounting”, “On Insolvency (Bankruptcy)” and many others.

Decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation play an important role in regulating economic relations in our country. In their meaning they are sometimes comparable to laws. However, it should be remembered that for all their importance, these are still by-laws, and they should not contradict the Constitution of the Russian Federation and federal laws. Their main purpose is to ensure the implementation of the provisions of the Constitution and laws.

Normative legal acts of ministries and departments determine the forms and mechanisms for the implementation of laws, decrees of the President and resolutions of the Government of the Russian Federation. So, for example, the instructions of the tax department contain instructions on the application of tax legislation.

The norms of economic law may also be contained in some regulatory legal acts of local governments. As a rule, they relate to the property of municipalities and determine the procedure for its use.

Some local (intra-organizational) regulations may also contain business law norms. Any economic entity can, in its local regulatory legal acts, establish the norms of economic activity that are mandatory for all employees of this entity (of course, if these norms do not contradict laws and higher by-laws).

Finally, speaking about the sources of economic law, it must be borne in mind that, in accordance with Art. 15 of the Constitution of the Russian Federation as part of the Russian legal system are generally recognized principles and norms of international law and international treaties of the Russian Federation. Therefore, international treaties of the Russian Federation in the sphere of economy should also be attributed to the sources of economic law in Russia. In practice, most business entities rarely turn to such sources of economic law. Nevertheless, every entrepreneur should remember that in case of discrepancy between the rules of the law and the rules of the international treaty of Russia, priority is given to the rules of the international treaty.

Questions to study:

Sources of law governing economic relations in the Russian Federation

Signs of entrepreneurial activity. The concept of profit

Importance of Entrepreneurship

Question No. 1 Sources of law governing economic relations in the Russian Federation

The most important regulatory legal acts regulating business relations in Russia are:

Constitution of the Russian Federation. For entrepreneurship, those constitutional norms that enshrine the principles of legal regulation of the sphere of entrepreneurship are of particular importance.

So, in Art. 8, 34 of the Constitution of the Russian Federation, the principle of freedom of entrepreneurial activity is enshrined, according to which “everyone has the right to free use of his abilities and property for entrepreneurial and other economic activities not prohibited by law.”

This principle was further developed in the Civil Code of the Russian Federation and in other legislative acts.

Of great importance is the constitutional principle of recognizing the diversity of forms of ownership, the legal equality of forms of ownership and their equal protection, enshrined in Art. 8 of the Constitution of the Russian Federation. According to this principle, the legislation cannot establish any privileges or restrictions for entities conducting business activities using state, municipal or private property.

The same articles of the Constitution establish the provision that the Russian Federation guarantees “free movement of goods, services and financial resources”, supports competition and does not allow economic activity aimed at monopolization and unfair competition. Restrictions on the principle of a single economic space may be introduced only in accordance with federal law, if it is necessary to ensure security, protect human life and health, protect nature and cultural values.

Civil Code Russian Federation(GK RF).

This act contains many norms governing entrepreneurship, ranging from the very concept of entrepreneurial activity, the organizational and legal forms of its implementation, the legal regime of property of entrepreneurs and to the consolidation of structures certain types business contracts.

In addition to the Civil Code of the Russian Federation, the leading role in the system of sources of business law is played by federal laws, classification of which can be presented in the form of scheme 1.

Sub-legislative acts play an important role in the regulation of entrepreneurial activity. Among them, first of all, it is worth mentioning:

Decrees of the President of the Russian Federation And Decrees of the Government of the Russian Federation. A significant number of business law norms are contained in regulations federal bodies executive power, operating directly in economic sphere such as the Ministry of Finance of the Russian Federation (Minfin of Russia), the Ministry economic development and Trade of the Russian Federation (Ministry of Economic Development of Russia), etc. In some areas of business, for example, in the accounting and reporting statistical reporting, the most detailed regulation of relations is provided precisely by acts of this level.

A number of normative legal acts of the USSR - V if they are not canceled and do not contradict the current legislation of the Russian Federation.

Scheme 1 Federal Laws Regulating Entrepreneurship

NORMATIVE LEGAL ACTS OF THE FEDERAL LEVEL
Constitution of the Russian Federation establishes the fundamental principles of business law
Civil Code of the Russian Federation contains a definition of entrepreneurial activity, norms on the legal status of business entities, the legal regime of entrepreneurs' property, on obligations arising from contracts applied in the course of entrepreneurial activity
federal laws (laws of the Russian Federation, Laws of the RSFSR)
Laws that determine the state of the market, for example, the Federal Law “On the market valuable papers”, Law of the Russian Federation “On Competition and Restriction of Monopolistic Activities in Commodity Markets”	Laws regulating the procedure for carrying out certain types of business activities, for example, the Federal Law “On Advertising”, the Federal Law “On Communications”
Laws governing legal status entities engaged in entrepreneurial activities, e.g., the Federal Law "On Joint-Stock Companies", the Federal Law "On Financial and Industrial Groups"
Other laws regulating business relations, for example, the Federal Law “On Insolvency (Bankruptcy), the Federal Law “On the Privatization of State Property and on the Basics of Privatization of Municipal Property in the Russian Federation”
Scheme 2? Sources of business fundamentals
By-laws
decrees of the President of the Russian Federation, for example, the Decree “On streamlining state registration enterprises and entrepreneurs on the territory of the Russian Federation”, Decree “On measures to streamline state regulation prices (tariffs)"
Decrees of the Government of the Russian Federation, for example, the Decree “On federal program export development”, Resolution approving the “Regulation on licensing certain types of audit activities in the Russian Federation”
Acts of federal executive authorities, for example, “Regulations on maintaining accounting and financial statements in the Russian Federation, approved. Order of the Ministry of Finance of the Russian Federation, "Rules for certification of works and services in the Russian Federation", approved. Decree of the State Standard of the Russian Federation
REGULATORY AND LEGAL ACTS OF THE SUBJECTS OF THE RUSSIAN FEDERATION
Legislative acts, eg. Law of the City of Moscow "On the Fundamentals of Small Business in Moscow", Law of Khanty-Mansiysk autonomous region“On the regulation and control of prices in the Khanty-Mansiysk a. O."
Acts of the highest executive authorities, e.g., the order of the Mayor of Moscow “On approval of the regulation on the Register of small businesses of Moscow”, Decree of the Government of Moscow “On approval of the Regulation on the procedure for applying economic sanctions for violation of the procedure for applying prices and tariffs and conditions restricting them”
Normative acts of other executive authorities (departments, chambers, committees, etc.), e.g., Letter of the Moscow Licensing Chamber “On the list of activities that are licensed by the Moscow Licensing Chamber”

Scheme 3. Regulatory legal acts

Due to the federal structure of our state and in accordance with the Constitution of the Russian Federation, many areas of public life are regulated by regulatory legal acts of subjects of the Russian Federation. Local self-government bodies also issue economic and legal acts, based on Ch. 8 of the Constitution of the Russian Federation, the Federal Law "On general principles organizations of local self-government in the Russian Federation”.

great role and local regulations, taken by economic entities themselves in order to regulate their own business activities.

In addition to regulatory legal acts, the sources of business law are business practices. In accordance with Art. 5 of the Civil Code of the Russian Federation, the custom of business turnover is a rule of conduct that has developed and is widely used in any area of business activity, not provided by law, regardless of whether it is recorded in any document. Business customs are applied along with the legislation and in cases where there is a gap in it (mainly in foreign trade turnover, maritime transport, etc.).

Finally, an integral part of the legal system of the Russian Federation are generally recognized principles and norms of international law and international treaties of the Russian Federation, both bilateral (on trade, economic cooperation) and multilateral. The Civil Code of the Russian Federation prevents possible conflicts between international and national legislation, while the issue is resolved in favor of the first.

Question number 3 Signs of entrepreneurial activity. The concept of profit

For a complete picture of entrepreneurial activity, we will consider all its features and compare these features with the features of another type of production (economic) relations - wage labor relations.

Signs of entrepreneurial activity are:

independence;

focus on systematic profit;

risky nature.

independence entrepreneurial activity is manifested in its:

a) organizational independence

The entrepreneur in the sphere of his economy has no other power over himself than his own, does not depend on government agencies from no other persons. No one has the right to dictate his will to him, but no one is obliged to assist the entrepreneur in his activities: provide him with work, create normal working conditions, etc.

A hired worker is obliged to obey the employer:

Comply with the VTR rules established by the employer;

observe working hours and rest;

comply with labor standards, etc.

An employer is obliged to provide an employee with work, tools, a workplace and, at the same time, create appropriate working conditions that meet the norms of labor legislation.

b) initiative

The word "entrepreneur" originated in Russian and means to start, to decide to do something new.

The entrepreneur, on his own initiative, determines the direction in his economic activity and the means of its implementation.

c) self-sufficiency (economic independence)

Organizational independence and initiative are possible only under the condition of economic independence, which gives the entrepreneur the possession of the means of production (land, production facilities, machinery, equipment, transport, raw materials, etc.)

The means of production may belong to the entrepreneur on the right of ownership or on the right of lease.

The hired worker does not possess the means of production, because he does not have sufficient funds to acquire them, or simply does not wish to acquire them. Therefore, he is forced to be hired by an entrepreneur, the owner of the means of production, who provides him with the indicated means of production.

Thus wage labor is labor dependent but subordinate to the will of the owner. An employee does not work for himself, but for the employer, although he receives wages for his work.

focus on systematic profit

The main goal of entrepreneurial activity is to obtain such income that would exceed production costs (production costs, or prime cost), i.e., profits.

Profit is the sum of the difference between income and the cost of obtaining it (or surplus value).

Entrepreneurial activity should be aimed at obtaining systematic profit, that is, carried out in the form of fishing as a permanent source of income for entrepreneurs.

A one-time profit will entail entrepreneurial activity (sale of an apartment, shares). It is impossible to get profit from one production of goods.

This definition refers to making a profit from the sale of goods, and not from their production.

If the goods are produced for sale, that is, for the purpose of making a profit, such activity, of course, is entrepreneurial.

risky nature

Entrepreneurial activity is carried out by the entrepreneur at his own risk.

Due to various circumstances beyond the control of the entrepreneur, his business expenses may not be justified, at best it will not receive wages, at worst it will go bankrupt due to losses incurred. The offensive of such adverse effects and constitutes its risk.

The activity of an employee on other principles.

An employee is always entitled to claim wages, even if:

manufactured products will not be in demand or sold;

non-fulfillment of labor duties is associated with downtime, making a marriage through no fault of his.

Behind him is kept wage in full or in the amount of at least two-thirds of the tariff rate (salary) (Articles 155-157 of the Labor Code of the Russian Federation).

Question #4 Importance of Entrepreneurship

The fact is that a necessary condition for success, and hence the profitability of any business, is its competitiveness. Since many business entities can be engaged in the same type of activity, this leads to the fact that offer relevant goods (works, services) on the market is gradually aligned with demand on them. As a result, prices fall: in order to sell goods, entrepreneurs are forced to reduce them. When the production of a given commodity becomes unprofitable, there is an outflow of entrepreneurs from this sphere of economic activity and a redistribution of their personal energy and capital to another sphere that is not yet so saturated with goods (works, services). Another way is also possible. By rationalizing and reducing the cost of production, using less expensive raw materials and work force the entrepreneur achieves that his costs of manufacturing the same product are reduced.

As a result, he gets the opportunity to sell his goods at a lower price than other entrepreneurs, but to get the same or even more profit from this. Or vice versa: an entrepreneur, through the use of advanced technologies, new materials, etc., improves the quality of the goods he produces in comparison with other similar goods and thereby ensures an increased demand for it. And with an increase in demand, prices increase, and hence profits, which serves as the main incentive for further improving the quality of the goods produced. From the above examples, illustrating the well-known economic law-law supply and demand, it can be seen that in entrepreneurial activity with its initiative, free competition and the desire for profit, the most important mechanism is laid self-regulation market economy.

Thus, in modern society Entrepreneurial activity is not only a means of personal enrichment of entrepreneurs, "the pursuit of profit." Such an understanding would be very simplistic, one-sided and far from the truth. Entrepreneurial activity is a necessary condition for continuous economic development, saturation of the market with goods necessary for the population, scientific and technological progress and, finally, strengthening the positions of the state as a whole in the international arena.

In addition, the taxation of entrepreneurial activity brings considerable income to the state, which then redistributes the funds received for social needs, the payment of salaries to public sector employees, etc. Therefore, the solution of these, as well as many other important economic and social tasks, is possible only if the right approach to business regulation.

Economic relations as a subject of legal regulation Law is the regulator of social relations. Its purpose is to streamline the life of society, to ensure its normal functioning and development. It should be remembered that before law and with it, customs and traditions, morality, religion, which also act as the most important regulators of social relations, existed and still exist. There are also such spheres of the life of society, in the regulation of which the law does not play the leading role. And there are some relationships that are not subject to legal regulation at all.

Concepts and signs of entrepreneurial activity In a market economy, the bulk of economic relations are relations that develop in the process of entrepreneurial activity. In accordance with the article of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in accordance with the procedure established by law.

From this definition, the following features of entrepreneurial activity can be distinguished: 1) independence; 2) focus on systematic profit; 3) risky nature; 4) Registration in the manner prescribed by law of persons carrying out this activity.

1) Independence as a sign of entrepreneurial activity includes organizational independence and property independence of the entrepreneur. Organizational independence is manifested in the fact that the entrepreneur himself - without any instructions "from above" - decides what and how to produce, from whom to purchase the necessary raw materials and materials, to whom and at what prices to sell the manufactured products, etc. Property independence implies that the entrepreneur has a separate, i.e. it is his own property, which he uses in the implementation of entrepreneurial activities.

2) The focus on systematic profit is the most essential feature of entrepreneurial activity. Both from the point of view of everyday consciousness and from the point of view of science, entrepreneurial activity is, first of all, an activity whose purpose is to make a profit.

3) The risky nature of entrepreneurial activity lies in the fact that it does not always give the expected results. It was the risky nature of entrepreneurial activity that led to the emergence of the institution of insolvency (bankruptcy) in civil law.

4) Registration in the manner prescribed by law of persons engaged in entrepreneurial activity. Some authors consider this sign as formal, pointing out that if there are three other signs listed above, the activity will be entrepreneurial, even if it is carried out without registration.

Economic law is a set of legal norms that regulate relations that develop in the course of economic activity. At present, in our country, as in most other countries of the world, the main source of law is regulatory legal acts - official documents adopted by the competent authorities in the prescribed manner and containing rules of law.

Normative legal acts are divided into two large groups: 1) laws that have the highest legal force; 2) by-laws normative legal acts adopted on the basis of and in pursuance of laws. As for laws, at the top of the pyramid of these legal acts is the Constitution - the Basic Law of the country. Then follow federal constitutional laws, ordinary federal laws and laws of the subjects of the federation. With regard to by-laws, the decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation have the greatest legal force.

The most important, fundamental norms of economic law in Russia are enshrined in the Constitution of the Russian Federation. They can be considered as principles of economic law, i.e. fundamental principles from which all other norms of economic law proceed. These include: - the unity of the economic space; - free movement of goods, services and financial resources - support for competition; - Variety of forms of ownership; -Freedom of economic activity, including the right of everyone to entrepreneurial activity;

UDC 340(075) BBK 67ya723

Federal target program"Culture of Russia" (subprogram "Support for Printing and Book Publishing in Russia")

Arakcheev IN. C, Ph.D., Associate Professor - Ch. 5 (co-authored with V. I. Mikhalev, V. A. Pankin, D. O. Tuzov); §§ 1-3 Ch. 7 (co-authored with V. A. Pankin, D. O. Tuzov); ch. 8 (co-authored with V. I. Mikhalev, D. O. Tuzov); ch. 9 (co-authored with L. M. Artamonov, D. O. Tuzov); ch. ch. 10, 11 (co-authored with V. A. Pankin, D. O. Tuzov); ch. ch.12, 13; Artamonov L. M., Associate Professor - Ch. 9 (co-authored with V. S. Arakcheev, D. O. Tuzov); Mikhalev V.I., Art. teacher - chap. 5 (co-authored with V. S. Arakcheev, V. A. Pankin, D. O. Tuzov); ch. 6 (co-authored with D. O. Tuzov); ch. 8 (co-authored with V. S. Arakcheev, D. O. Tuzov);

Pankin V. A., Ph.D. n., associate professor - ch. 5 (co-authored with V. S. Arakcheev, V. I. Mikhalev, D. O. Tuzov); §§ 1-3 Ch. 7, ch. ch. 10, 11 (co-authored by V. S. Arakcheev, D. O. Tuzov); Simonenko A. V., Art. teacher - ch. 14 (co-authored with D. O. Tuzov); Tuzov D. O., Ph.D. n., associate professor - ch. ch. 1-4; ch.5 (co-authored with V. S. Arakcheev, V. I. Mikhalev, V. A. Pankin); ch.6 (co-authored with V. I. Mikhalev); SCH 1-3 ch.7 (co-authored with V. S. Arakcheev, V. A. Pankin); § 4 ch. 7; ch. 8 (co-authored with V. S. Arakcheev, V. I. Mikhalev); ch.9 (co-authored with V. S. Arakcheev, L. M. Artamonov); ch. ch.10, 11 (co-authored with V. S. Arakcheev, V. A. Pankin); ch. 14 (co-authored with A. V. Simonenko).

Reviewers:

V.V. Smooth- head. Department of Civil Law of the Law Institute of Irkutsk State University, Doctor of Yu. n., professor; N.D. Titov- Judge Tomsky regional court(civil collegium) Ph.D. n.

P68 Legal support professional activity: Textbook / ed. D. O. Tuzova, V. S. Arakcheeva - M.: FORUM: INFRA-M, 2004. - 384 p. - (Series "Professional Education"),

The textbook is written in accordance with the state educational standard of secondary vocational education, Sample program academic discipline and is intended for students of technical schools and colleges. When writing the textbook, the latest Russian legislation as of January 1, 2003 was used.

UDC 340(075) BBK67ya723

ISBN 5-8199-0056-1 (FORUM) ISBN 5-16-001151-0 (INFRA-M)

FOREWORD

The textbook for the course "Legal support of professional activity" was prepared taking into account the requirements of the second generation of state educational standards for secondary vocational education and is intended for students of technical schools and colleges studying in economic and technical specialties. Its content is fully consistent with the Exemplary Curriculum of the Academic Discipline "Legal Support for Professional Activities", which was first introduced into the curricula of institutions of secondary vocational education. This course is based on the knowledge gained by students in the study of the discipline "Fundamentals of Law".

As a result of studying the discipline, the student must:

have an idea:

On the legal status of subjects of legal relations in the sphere
professional activity;

know:

Legislative and other normative legal acts regulating legal relations in the process of professional activity;

The rights and obligations of employees in the field of professional

activities; be able to:

Protect your rights in accordance with applicable civil and labor laws.

The manual consists of three sections.

Law and economics.

Labor and social protection.

Administrative law.

The first section discusses the legal status of business entities - legal entities and citizens ( individual entrepreneurs), characterizes the main types of civil law contracts and describes the procedure for their conclusion, reveals ways to protect civil rights. The second section is completely devoted to the consideration of labor law issues, the third one is designed to give students basic knowledge of administrative law.

All normative material in the book is given taking into account recent changes that occurred in the current legislation of the Russian Federation.

Each section is divided into chapters, which sequentially reveal the main provisions of the course. For effective assimilation of the content of the chapter and individual paragraphs, control questions are offered. The book is equipped with diagrams that help to better understand the voluminous theoretical material.

The textbook uses the following abbreviations:

BNA - Bulletin of normative acts of federal executive bodies (until July 1996 - Bulletin of normative acts of ministries and departments) (USSR, RSFSR, RF);

Air Force of the Russian Federation (RSFSR, USSR) - Bulletin of the Supreme Soviet of the RSFSR (USSR), Bulletin of the Congress of People's Deputies and the Supreme Soviet of the Russian Federation (RSFSR, USSR);

SAPP - Collection of acts of the President and the Government of the Russian Federation;

NW RF- Assembly legislation of the Russian Federation;

Arbitration Procedure Code of the Russian Federation - Arbitration Procedure Code of the Russian Federation;

Civil Code of the Russian Federation - Civil Code of the Russian Federation;

Code of Civil Procedure of the Russian Federation - Civil Procedure Code of the Russian Federation;

Code of Administrative Offenses of the Russian Federation - Code of the Russian Federation on administrative offenses;

Tax Code of the Russian Federation - tax code RF;

Labor Code of the Russian Federation - Labor Code RF;

Criminal Code of the Russian Federation - Criminal Code of the Russian Federation.

SECTION I. LAW AND ECONOMY

CHAPTER 1. LEGAL REGULATION OF ECONOMIC RELATIONS

Law is intended to regulate relations between people. But these relationships - they are called public, or social, are so diverse that it is impossible to enumerate them even approximately. Among them there are those that are not amenable to legal regulation or do not allow legal regulation for moral and ethical reasons (for example, friendly, intimate relations), as well as those in the regulation of which the state is simply not interested. Therefore, not all social relations constitute the subject of legal regulation.

Public relations of undoubted interest to the state and traditionally regulated by law include production (economic) relations, i.e., relations between people that develop in the process of production of certain goods, including material ones, and the movement of the produced product from the producer to the consumer. From this definition It follows that relations of production are not only directly related to production goods or other benefits (manufacture of things, performance of work, provision of services), but also arising in the field distribution these benefits and their exchange(transport, trade, etc.) 1 . The totality of production (economic) relations that take shape in a society (in a country, in a region, in a separate organization) is called economy.

Economic relations are very diverse. First of all, they differ depending on subject production activity, i.e. from the sector of the economy in which this activity is carried out. So, we can distinguish production relations in the sphere of industry, agriculture

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1 Sometimes production relations are understood not as all economic relations, but only those that are directly related to the production of economic goods (but not to their distribution and exchange). In this textbook, the terms "relations of production" and "economic relations" are used interchangeably.

economy, construction, transport, trade, consumer services, etc. But within each industry, production activity itself is far from homogeneous in terms of its nature, foundations, and principles of implementation. In this regard, in the system of economic relations, one should distinguish between relations in the sphere of entrepreneurial activity and relationships wage labor 1 .

It should be noted that this division of production relations is characteristic only for market economy, that is, an economic system based on the recognition and full protection of the right to private property and freedom of enterprise. Outside the free market, secured by private ownership of the means of production, entrepreneurial activity is impossible.

Our country has abandoned the planned economy that dominated the Soviet era, which was almost entirely based on state ownership and administrative-command methods of management 2 . And although modern economy Russia cannot yet be called a market economy in the true sense of the word, very significant steps have been taken in this direction. Created economic background and the legal framework for entrepreneurship, and it is developing quite intensively, as well as relations on the use of hired labor 3 .

1 This is, of course, not an exhaustive classification of industrial relations and production activities. For example, the labor of members of a production cooperative is neither hired nor entrepreneurial. However, it is entrepreneurship and wage labor that are the most important types production activities, in connection with which they are the basis for the classification of the relevant economic relations.

2 The essence of the planned economy was that enterprises in a centralized
the order prescribed that they should produce, from whom they should
to buy raw materials and equipment, to whom to sell finished products etc. etc.
prices and other conditions of relations between enterprises are also established
lis the state. For violation of planned targets for business entities
fines were imposed. What all this led to is well known. Even in relatively
stable periods of its development, the planned economy reached high
results only in some sectors of the economy.

3 Let us note that labor legislation, despite modern
tendencies, avoids the use of the term "wage labor". Hired is considered
labor, the conditions of application and payment of which are determined by free agreement
the decision of an employee who, at his own discretion, "sells" his abilities, and
an employer who also freely evaluates them. At the same time, the state only
establishes certain guarantees for more weak side these relationships
worker. This is exactly what is characteristic of modern Russian labor law.

Chapter 1. Legal regulation of economic relations 7

What are entrepreneurial activities and hired labor? The law gives the following definition of them.

Entrepreneurial activity-

this is an independent activity carried out at one’s own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (Article 2 of the Civil Code of the Russian Federation).

hired labor- this is the performance by an employee, on the instructions of the employer, for a fee of a labor function (i.e., work in a certain specialty, qualification or position) with submission to the internal labor regulations in force at the employer, while ensuring the latter proper working conditions in accordance with labor law (Article 15 TKRF).

To make up more full view about business activities,

it is necessary to consider separately all
signs that have found consolidation in the above legal definition. For

for a better understanding of them, given that entrepreneurial activity, as a rule, is based on the work of an entrepreneur, it is advisable to compare these signs with signs of another type of production relations - wage labor relations.

The necessary features of entrepreneurial activity, as follows from the above definition, are:

1) independence;

3)risky nature.

Let's consider each of these signs separately.

The independence of entrepreneurial activity is manifested in its:

organizational independence. Unlike an employee, who is obliged to obey the internal labor regulations established by the employer, i.e. follow the employer’s instructions, observe the working hours and rest periods, comply with labor standards, etc.,

1 The subject of independent analysis of these relationships will be in the next section of this textbook.

8 Legal support of professional activity

The entrepreneur has no other power over himself in the sphere of his economy than his own. He is his own "owner", he decides what and when to do, what products to produce and how to sell it. In this regard, the entrepreneur does not depend either on state bodies or on any other persons. No one has the right to dictate and impose his will on him. But at the same time, no one is obliged to assist the entrepreneur in his activities: provide him with work, create normal working conditions, etc. The concern for all this lies with the entrepreneur himself. An employee is a different matter: the employer is obliged to provide him with work, as well as everything necessary for its implementation (tools, materials, workplace), while creating appropriate working conditions that meet the norms of labor legislation;

initiative. Initiative - back side independence. Both of these signs presuppose each other and cannot exist separately. In Russian, the word “undertake”, from which the name of the activity in question comes from, means to start, decide to do something new 1. Being independent in his economic activity from anyone else, the entrepreneur himself, on his own initiative, determines its directions and means of implementation;

self-sufficiency (economic independence). Organizational independence and initiative are possible only under the condition of independence economic, which gives the entrepreneur the possession means of production land, production facilities, machinery, equipment, transport, raw materials, etc. The indicated means of production "may belong to the entrepreneur on the basis of the right of ownership or other right that implies their independent use (for example, on the right of lease). The employee does not own the means of production - either because he does not have sufficient funds to acquire them, or simply because of unwillingness.Therefore, in order to receive the income necessary to satisfy his needs, he is hired to work for an entrepreneur - the owner of the means of production, who provides him with these funds, but does not for independent use, and for implementation with their help subordinate i.e. dependent from the will of the employer, labor.

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1 See: Dal V. Explanatory Dictionary of the Living Great Russian Language: In 4 vols. T. 3. M., 1990. S. 388.

Chapter 1. Legal regulation of economic relations 9

Thus, hired labor, in contrast to entrepreneurial activity, is labor dependent, subject to the will of the owner or other possessor of the means of production. In this sense, the hired worker, although he receives wages for his work, does not work for himself, but for the employer. Thus, a citizen who has the right to govern vehicle, may be engaged as a business activity in private transportation if he has his own bus or the funds necessary to purchase it. Otherwise, he is hired by the owner or lessee of the bus as a driver and carries out the same activity (transportation of passengers) not independently, but on behalf of the employer and under his control, for a predetermined

wages.

The main goal of entrepreneurial activity is

value is the receipt of such income that would exceed the costs incurred in connection with the implementation of this activity ( production costs, or cost price). In the very general view the sum of the difference between income received and production costs and is profit. For example, to make and sell a table, an entrepreneur spends: 1.5 thousand rubles. for the purchase of materials, 300 rubles. for the wages of a carpenter and 200 rubles. for electricity, delivery of goods to the place of sale, wages of a hired seller, etc. (in total amount 2 thousand rubles). Therefore, in order to profit from the sale of this table, the entrepreneur must sell it at a price exceeding 2 thousand rubles. Otherwise, he will have a loss. If, for example, an entrepreneur sells a table for 3 thousand rubles, his profit will be 1 thousand rubles, and if, due to the lack of demand for such products, he manages to sell the table for only 1 thousand rubles, then, accordingly, 1 thousand . rub. will be a loss of 1.

It would seem that the sign of a focus on making a profit does not significantly distinguish entrepreneurial activity from hired labor. An employee, just like an entrepreneur, works for the purpose of earning income, remuneration for his labor, which

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1 However, it should be taken into account that the profit or loss is calculated, as a rule, for a certain period, and from all sales as a whole. Therefore, the loss from the sale of one product is covered by the profit from the sale of other goods, or vice versa.

Legal support of professional activity

depending on the specialty and qualifications of the employee, it can be very high, and sometimes even exceed the income of the average entrepreneur. However, the salary of an employee, no matter how high, cannot be considered as profit. Profit is the difference between income and the cost of obtaining it, or, in other words, surplus value. The employee does not incur any costs, does not produce any of his own material costs. He simply “sells” his labor at the prevailing market price or at the price set by the state (for public sector employees). In the first case, the value of labor, which in a market economy is a commodity, is entirely determined by the demand for it. Therefore, low-skilled workers, of which there are quite a lot, cannot count on high salary. Overproduction of specialists in any one area leads to the same result. On the contrary, highly skilled workers or workers with rare specialties are in demand and, therefore, can claim higher wages for their work. But whatever the amount of wages, it usually reflects the real, market value labor efforts expended by the employee (of course, if, when setting the amount of remuneration, there was no discrimination on grounds not related to the business qualities of the employee, such as gender, race, nationality, place of residence, etc.). Thus, by giving his labor to the employer, the employee receives for this a monetary equivalent determined by the contract - wages. Since at the same time the employee does not produce any material costs, he simply cannot have either a profit or a loss.

But let's get back to business. According to the above legal definition, it must be directed for profit. This means that in order to qualify an activity as entrepreneurial, it is not necessary that as a result of its implementation, a profit was actually received. What is important is only the goal, the direction of the will of the person to receive it. Whether there will actually be a profit or not is important for resolving other issues, in particular taxation issues.

Further, in order to be considered entrepreneurial, the activity must be aimed not just at obtaining, but at systematic making a profit, i.e. carried out in the form fishing, as a more or less permanent source

Chapter 1. Legal regulation of economic relations 11

entrepreneur's income. Therefore, there will be no entrepreneurial activity aimed at making a one-time profit, albeit in a very large size(for example, a profitable sale by a citizen of his shares or an apartment).

Please note that, in accordance with Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an activity aimed at systematically making a profit from use of property, sale of goods, performance of work or provision of services. This definition says nothing about production of goods. Does this mean that such activities cannot be considered entrepreneurial? Of course no. The fact is that it is impossible to get profit from the production of goods alone. The product is also needed sell. That is why the legal definition of entrepreneurial activity refers to making a profit from sales goods, not from their production. But if the product is produced sale, i.e. for the purpose of making a profit, such activity, of course, is entrepreneurial.

risky nature

The third feature contained in the legal
definition of entrepreneurial activity is that the latter is carried out by the entrepreneur on your risk. Due to various
circumstances beyond the control of the entrepreneur (change
market conditions, depreciation national currency, bankruptcy of partners, disappearance from the market of goods necessary for doing business, hostilities,
government measures that restrict the economic environment
mouth, etc., etc.), his commercial calculations may not be justified, and at best he will not receive the planned profit,
and at worst, it will go bankrupt as a result of the losses incurred. Burden
such unfavorable consequences lies with the entrepreneur himself, and the possibility of their occurrence constitutes his risk 1 .

The activity of the hired worker is built on other principles. Subject to the conscientious performance of their labor

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1 The possibility of insuring business risks on the basis of contracts with insurance organizations, provided for by the current legislation, does not mean that if an entrepreneur concludes such an agreement, his activity loses the element of risk. Firstly, the object of insurance is a very specific business risk associated with a specific operation, and not all business activities in general. Secondly, an insurance contract is always concluded for a certain amount, and only within this amount, if the risk is justified, will the entrepreneur be paid insurance compensation. However, it is not always possible to predict in advance what losses may follow from a failed enterprise.

12 Legal support of professional activity

duties, he has the right to claim wages, even if the products he produced turned out to be unclaimed and were not sold. Even in the event that an employee fails to fulfill his labor duties, downtime, manufacturing a marriage, if this happened through no fault of his, he retains his salary - in full or in the amount of at least 2/3 of the tariff rate (salary) (Articles 155-157 of the Labor Code of the Russian Federation ).

Despite all the differences noted between entrepreneurship and wage labor, both of these types of production activities are closely related. And the point here is not only in their general focus on the manufacture of goods, the performance of work or the provision of services. Production is rarely carried out directly by the entrepreneur himself. The so-called "individual labor activity' is typical for small businesses. Most often, an entrepreneur attracts hired labor into the sphere of his production. In this case, dependent (subordinate) labor of employees V aggregate is considered as an independent activity of the entrepreneur himself, i.e. as entrepreneurial activity.

Significance of state registration

In the definition of entrepreneurial activity contained in Art. 2 of the Civil Code of the Russian Federation, another sign is indicated - implementation of this

activity by a person registered in

as an entrepreneur in the manner prescribed by law. It is unlikely, however, that this feature characterizes entrepreneurial activity itself; rather it refers to legal status its subject, to his official recognition as an entrepreneur. Indeed, a person who intends to independently, at his own risk, carry out activities aimed at the systematic receipt of profit (ie entrepreneurial activity) must register as an entrepreneur, otherwise his activity will be illegal. At the same time, the absence of state registration cannot affect the entrepreneurial nature of the activity itself, and the citizen who carries out it is not entitled to refer to the transactions concluded by him that he is not an entrepreneur. Such transactions will be subject to the rules governing entrepreneurial activity (see paragraph 4 of article 23 of the Civil Code of the Russian Federation).

Chapter 1. Legal regulation of economic relations 13

Any state is interested in the proper economic development of its country. However, regardless of the state economic policy and applied methods of managing the economy, the universal regulator of production relations always remains the right . This applies equally to planned and market economies; another thing is that in the first and second cases, the methods of legal influence differ significantly, which will be discussed further below.

The nature of legal regulation also depends on the specific type of regulated economic relations. So, labor relations since the beginning of the 20th century. are traditionally regulated in Russia by labor law, the main source of which is the Labor Code (formerly the Code of Labor Laws). In a market economy, more and more dispositive principles appear in labor law, and the freedom of the parties becomes more and more employment contract- employer and employee - in determining their mutual rights and obligations. In other words, contractual regulation of labor relations comes to the fore. Despite this, the main objective legal impact on labor relations remains the same - to protect the interests of the employee from possible abuse by his economically stronger counterparty - the employer. This goal predetermines the nature of the legal regulation of labor relations, which in its main features, despite many innovations of the recently adopted Labor Code of the Russian Federation, has not changed.

The situation is more complicated with entrepreneurial activity, the implementation of which is possible only in market conditions. It must be said that law is intended to regulate only those social relations that in a particular period in a particular society are considered socially useful and are recognized by the state. The law does not regulate or protect socially harmful relations. It only punishes their participants, providing for the composition of the relevant offenses and establishing sanctions for the latter. Entrepreneurial activity has not always been encouraged in our country. For a long time it was banned by the state, and its occupation was considered a criminal offense and was severely punished 1 . This is quite understandable

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1 The Criminal Code of the RSFSR of 1960 contained elements of such crimes as private entrepreneurial activity and commercial mediation (Article 1S3), as well as speculation (Article 154). These crimes were punishable by up to ten years in prison with confiscation of property.

14 Legal support of professional activity

from the positions of Soviet law, which ensured the socialist economic system, the main principles of which were state ownership of the means of production and planned regulation of production activities with its administrative-command methods. Only in the second half of the 80s. the law for the first time, within very limited limits, allowed citizens to engage in entrepreneurial activities based on their personal labor, which was called individual labor activity. At present, the state not only recognizes the right of citizens and private organizations to engage in entrepreneurial activities, including with the involvement of hired labor, but also stimulates and encourages it in every possible way. Why is this happening? After all, the purpose of entrepreneurship is to make a profit. What benefit does it bring to society, being a means of enriching individual individuals?

The fact is that a necessary condition for success, and hence the profitability of any business, is its competitiveness. Since many business entities can be engaged in the same type of activity, this leads to the fact that the supply of relevant goods (works, services) on the market is gradually leveling off. with demand for them. As a result, prices fall: in order to sell goods, entrepreneurs are forced to reduce them. When the production of a given commodity becomes unprofitable, there is an outflow of entrepreneurs from this sphere of economic activity and a redistribution of their personal energy and capital to another sphere that is not yet so saturated with goods (works, services). Another way is also possible. Through the rationalization and cheapening of production, the use of less expensive raw materials and labor, the entrepreneur achieves that his costs for the manufacture of the same product are reduced. As a result, he gets the opportunity to sell his goods at a lower price than other entrepreneurs, but to get the same or even more profit from this. Or vice versa: an entrepreneur, through the use of advanced technologies, new materials, etc., improves the quality of the goods he produces in comparison with other similar goods and thereby ensures an increased demand for it. And with an increase in demand, prices increase, and hence profits, which serves as the main incentive for further improving the quality of the goods produced. From the examples given, illustrating the well-known economic law - the law of supply and demand , it can be seen that in entrepreneurial activity with its initiative, free competition and the desire for profit, the most important mechanism for the self-regulation of a market economy is laid.

Chapter 1. Legal regulation of economic relations 15

Thus, in modern society, entrepreneurial activity is not only a means of personal enrichment of entrepreneurs, "the pursuit of profit." Such an understanding would be very simplistic, one-sided and far from the truth. Entrepreneurial activity is a necessary condition for continuous economic development, saturation of the market with goods necessary for the population, scientific and technological progress, and finally, strengthening the position of the state as a whole in the international arena.

In the system of Russian law there is no
an industry specifically designed to regulate entrepreneurial activity and the social relations that develop in connection with its implementation.

The function of such regulation is performed by the norms of the most various industries law: constitutional, international, civil, administrative, labor, financial, environmental, land, etc. The totality of such norms related to the regulation of entrepreneurship is often combined under the general name “business law.” This does not mean, of course, that we have an independent a legal branch that exists along with civil, administrative law, etc. This set consists of heterogeneous norms relating to different branches of law, both private and public. But since these norms regulate a relatively isolated group of social relations - relations in the field of entrepreneurial activity, it is sometimes advisable to consider them in a single complex which is called business law.

16 Legal support of professional activity

Thus, business law - this is a set of norms of various branches of Russian law that regulate social relations in the field of entrepreneurial activity.

Of particular importance in such regulation are constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Thus, at the constitutional level, the necessary prerequisite for free entrepreneurship is established - the universal entrepreneurial legal capacity of citizens 1 . In addition, recognizing the right to private property, including land and other Natural resources, The Constitution of the Russian Federation establishes the most important economic guarantee for entrepreneurial activity (Articles 35, 36).

Nevertheless, the main role in the regulation of entrepreneurship belongs to the norms civil and administrative rights. Civil law determines the legal status of individual entrepreneurs and legal entities in property circulation, regulates property relations and contractual relations. The norms of administrative law establish the procedure for state registration of business entities, the procedure for licensing certain types of entrepreneurial activity, etc. At the same time, civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is public law.

Leading role in mechan