Development economic freedom

Economic freedom, as an element of the economy, was first mentioned in our country during the period Soviet Union. Economic freedom in the USSR was practically absent, which was due to the form of government and the economic regime in force at that time. The restrictions led to the fact that the foreign economic policy was very meager, there was almost no product range on the market, however, there was stability, which modern market and economic freedom cannot be ensured.

The state in those days was a monopolist, that is, it made all decisions in the field of trade and the development of external and internal economic relations independently.

It should be noted that foreign relations in the Soviet Union were very limited, international trade was carried out only in certain areas, and imports into the country were generally at a minimum level. Because of this, the economic freedom of the population was very limited.

However, the Soviet-era government provided its citizens with a certain stability in terms of the economy and trade. It should be noted that stores and shopping centers had a limited range of goods, but goods were almost always available.

Freedom of conduct financial activities individual family in the USSR was poorly implemented. If some family began to get rich, provided that the strong economic changes did not happen, government authorities began to become interested in this fact, which could ultimately result in political problems or the return of illegally acquired property to the state, if such a fact was present.

During Russian times, the situation with economic freedom changed significantly. Today, all citizens of the country are considered completely free from government interference and regulation, only if this does not affect the legitimate interests prescribed, first of all, in the Constitution of the Russian Federation.

Conditions of economic freedom

Economic freedom is an important condition for the development of market and economic relations. The higher the degree of economic freedom a market entity has, the higher its productivity, as leading analysts and economists believe. That is, for the development of economic and market relations, this is one of the priority conditions.

Definition 1

Conditions of economic freedom are those circumstances and rules under which entrepreneurs can freely implement their ideas and preferences in the market for goods and services.

These conditions are:

• Absolute right to private property. Any entrepreneur must own this right and condition, otherwise market relations, and, consequently, commodity and economic relations in the market will not be implemented correctly;
• Absolute right to implement economic ideas and initiatives. That is, entrepreneurial activity is not placed within a specific framework; on the contrary, if a businessman has a number of ideas, then if they do not contradict the law, he has every right to implement them, which will provide a vector for the further development of his business and the market as a whole;
• The absolute right to create or, conversely, destroy coalitions within business. This right gives the entrepreneur the freedom to choose a business partner, so that the owner himself determines with whom he wants to cooperate and with whom he does not, regardless of opinion and advice, for example, government agencies. This allows for more productive development of business and trade relations.

These conditions of economic freedom of activity are mandatory, since if they are not fulfilled or partially fulfilled, freedom, as a fact, is lost and weakened, which can negatively affect entrepreneurial activity and economic relations.

Note 1

Through economic freedom, society can achieve high and productive results in the field of social and economic activities.

Economic freedom is characteristic mainly only in conditions of market relations; in other forms of the market it shows little of itself and is not such an important attribute of the economy. It should be noted that only the market has the right to give so much freedom to its subjects, since without it it is impossible to build the correct structure of relationships.

The manifestation of economic freedom gives many advantages to both the entrepreneur and the market itself, since freedom means new opportunities, creative ideas, movement forward and development. The released economic energy has a fruitful and positive effect on the development of society and business.

Principles of Economic Freedom

Economic freedom cannot be limited in any way:

• nor legislation;
• not the market;
• nor the economy.

Economic freedom does not arise on its own, it is endowed by the government of the country, it is capable of expanding the boundaries and possibilities of the market and entrepreneurial activity, and forming new views and ideas for doing business.

The principles, as such, of economic freedom have not been formed due to different approaches to the formation of freedom in the economy, even in conditions of market relations, in different countries.

Economic freedom adheres to the main basic operating principle based on the Constitutional right of man in the society and economy of the country.

This principle is based on the competent distribution and combination of the rights of economic freedom of entrepreneurs in the conditions of market relations and their implementation.

It is important to note here that the principle of economic freedom of an entrepreneur still limits his rights and obligations to a certain extent. The main thing is that, within the framework of economic freedom, the market subject does not violate the rules regarding:

• Health of citizens of the country and economic zone;
• The morality of citizens and society of the country, as well as individual market subjects;
• Legal rights of citizens and individual market entities;
• Interests of citizens and individual market entities, etc.

Thus, this principle of economic freedom limits freedom only within the framework of the current Constitution, which imposes certain prohibitions on entrepreneurs and their activities.

Constitution of the Russian Federation, Article 8, Part 1. establishes and guarantees the unity of the economic space of Russia. This concept covers the unity of the market, i.e. free movement of goods, services and financial resources, support for competition, freedom economic activity throughout the country, as well as the free movement of labor (i.e., the unity of the labor market, since labor still largely remains a commodity, although its legal regulation, conditions, etc. are not only economic in nature, but also have enormous social significance). The latter is not mentioned in this article, apparently because the right of everyone who is legally on the territory of Russia to move freely, choose a place of stay and residence as one of the fundamental rights (and freedoms) of a person and a citizen is spoken of in Art. 27, and about freedom and working conditions - in Art. 37 of the Constitution.

Violation, by decision of the authorities of many constituent entities of the Federation, of the unity of economic space by creating zonal or regional more or less isolated markets with a ban on the import or export of certain goods, the movement of labor, etc. represents, in essence, an explicit form of partial economic separatism or at least violation of the integrity of the state, as well as the equality and fullness of human and civil rights and freedoms on the territory of the Russian Federation (Part 2 of Article 6). A negative attitude towards these violations is expressed in Part 2 of Art. 19 of the Constitution, which establishes equality of rights and freedoms of man and citizen, regardless of place of residence (since the territory of Russia is one). Our country's experience in this regard is rich.

These phenomena have long historical roots. At least since the late 60s, several successive congresses of the CPSU discussed and emphasized the harmfulness of creating de facto customs borders between the republics of the USSR, territories and regions of Russia. Either Kursk and some other regions prohibited the “export” of potatoes or other products beyond their “limits” for years, then the leadership of the Tsentrosoyuz (consumer cooperation) complained about similar obstacles imposed by the republican, regional and other authorities in its production and marketing activities. At the end of the 70s, for several years, the party and state authorities of Smolensk, Pskov and some other regions prohibited consumer cooperative enterprises in other territories of the USSR from selling their products in these regions, which were in short supply there, and taking the cash proceeds to themselves, rather than handing them over to bank branches of the named regions. The sale of any publishing product that has undergone all types of censorship or other control in any republic, territory or region could be arbitrarily prohibited by the secretary of the local CPSU committee. Party Secretary General L.I. Brezhnev complained about such phenomena, but no one could change all this: the power of the “appanage princes” was strengthening.

Since the problem has not lost its relevance, it became necessary to enshrine in the Russian Constitution the principle of the unity of economic space, a single market for goods, services and finance. This need is expressed in Part 1 of the analyzed article and is specified, in particular, in Art. 71 (part 1, paragraph "g"), 74 of the Constitution.

The situation with the single free labor market is more complicated. In 1932 Soviet authority restored the system of internal passports, abolished by the Provisional Government, now associated with a permissive (mostly prohibitive) registration regime in cities and a similar one - extracts in rural areas, but without passportization rural population. This assignment of labor to state and collective farms, the creation of closed labor markets in cities continued in the 60-70s, after passports were issued to rural residents, because the requirement to comply with the passport regime (i.e., the obligation to live at the place of registration ) has become even tougher. Even after the conclusion of the USSR Constitutional Supervision Committee of October 11, 1991 (USSR Air Force, 1991, No. 46, Art. 1307) and a number of resolutions Constitutional Court, in particular, by the resolution of April 4, 1996 (VKS RF, 1996, No. 2, pp. 42-59), all regulations on the licensing procedure for registration, as well as related restrictions on the rights of owners to own, use and dispose of at their own discretion their housing and other property were declared unconstitutional, contrary to international human rights law and no longer valid - the situation has only partially changed. State authorities of a number of constituent entities of the Federation and local governments of several large cities continued to insist on maintaining administrative and economic measures (by establishing huge payments to local budgets even from citizens who have already bought apartments in these cities) preventing the free movement of citizens and their choice of place of stay and residence. But citizens must be free throughout the entire territory of Russia, with the exception of special areas or cases that can only be established by federal law.

Violations of the unity of economic space are associated with restrictions such as market competition, and freedom of economic activity even after the abolition of many Soviet administrative, legal and criminal legal measures directed against freedom of economic, especially private (primarily trade) activity. Therefore important economic task state power after the failure of the August 1991 putsch, the collapse of the USSR and the elimination of the monopoly dominance of the CPSU apparatus was the restoration of the unity of the economic space of Russia.

The Decree of the President of the RSFSR on the single economic space of the RSFSR dated December 12, 1991 (VVS RSFSR, 1991, No. 51, Art. 1830) was aimed at creating guarantees of this unity. According to the Decree, acts of bodies of “power and management” and decisions were to be declared invalid officials, restricting the movement of goods, works and services in the domestic market of Russia. Further development legal regulation of economic relations characteristic of this single space is associated primarily with the Constitution of 1993.

The unity of the economic space is ensured by the unity of legislative regulation of the economy. Legislation in the economic sphere should provide for generally binding rules for the functioning of the market, their recognition throughout Russia, the protection and protection of all forms and subjects of economic activity, unified financial, currency, credit and customs regulation. Legal support for the unity of economic space in Russia is largely carried out by the Civil Code Russian Federation.

The constitutional responsibilities of the state, its bodies and their officials cover the creation and maintenance of such a unity of economic space that corresponds to all its properties, arising not only from Art. 8 of the Constitution of the Russian Federation, but also from other provisions of the Basic Law. So, although the establishment of the legal foundations of the single market in Russia is mentioned only in Art. 71 of the Constitution of the Russian Federation, as one of the problems relating to the exclusive jurisdiction of the Russian Federation, all constitutional provisions on the economy describe precisely a single market economy with its freedom of economic activity within the entire country - both for citizens, according to Part 1 of Art. 34, and for all other owners equal to them (the Federation, its subjects, municipalities, enterprises, etc.).

But this freedom is not absolute. Constitution of a democratic, legal and social state, while recognizing, respecting and protecting this freedom, cannot allow it to be abused by anyone. Therefore, the Constitution of the Russian Federation not only directly prescribes freedom of economic activity within the framework of the single economic space of the country, not only establishes the basis for the delimitation of jurisdiction and powers between the Federation, its subjects and local governments in economic field(Part 3 of Article 11, Article 12, 71-73, 130-133), and partly the competence of some government bodies in the economic sphere (clauses “a” - “g”, “f” of Part 1 of Art. 144, Article 127), but also defines a number of restrictions on the freedom of all subjects of economic activity (Part 2 of Article 34).

These restrictions arise primarily from the content of human and civil rights and freedoms, as well as from the state’s obligation to recognize, respect and protect them (Articles 2, 17, 18). Since state policy is aimed at creating conditions that ensure a decent life and free development of a person, including in the sphere of labor and its payment (Article 7), it is clear that freedom of economic activity should not contradict state rules in this area.

If the Constitution prescribes (Article 9) that land and other natural resources must be used and protected as the basis of life and activity of the peoples living in the relevant territory, then it is obvious that economic activity so free that it would destroy this basis is unacceptable, as well as free possession, use and disposal natural resources on the part of their owners, if this causes damage to the environment or violates the rights and legitimate interests of other persons (Part 2 of Article 36).

If, according to Part 3 of Art. 35 of the Constitution, it is possible to forcibly alienate property for the needs of the state in judicial procedure and subject to certain conditions, one cannot help but admit that this is also some limitation of economic freedom and property rights.

Likewise, it is the duty of everyone to preserve nature and environment(Article 58), placing the protection of the latter and ensuring environmental safety under the joint jurisdiction of the Russian Federation and its constituent entities, as well as the right of everyone to a favorable environment, to reliable information about its condition and to compensation for damage caused by an environmental offense (Article 42 ), cannot but prevent abuse of freedom of economic activity, predatory use of natural resources, etc. Everyone has a duty to pay legally established taxes(Article 57) may contradict the right to free economic activity and even the right to property: excessively high taxes may be highly restrictive, although lower taxes may encourage formally free economic activity; optimal measure of taxation that would properly replenish the treasury and at the same time regulate different kinds economic activity in accordance with public interests, in some cases it has not yet been possible to find, although the tax legislation has taken a number of important measures in this direction.

The rights and freedoms of a person and citizen for economic activity may be limited, along with his other rights and freedoms, by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, and ensure defense and state security (part 3 of article 55). Rights and freedoms in the field of economic activity established in Art. 27 (freedom of movement, choice of place of stay and residence), part 1 of Art. 34 (free use by everyone of their abilities and property for such activities), Art. 35 (right of private property and inheritance), Art. 36 (ownership of land and freedom of possession, use and disposal of natural resources), Art. 37 (freedom of labor), art. 42 (the right to a favorable environment), etc., may be limited in a state of emergency (Article 56). For foreigners and stateless persons who enjoy rights and bear responsibilities on an equal basis with Russian citizens, additional restrictions may be established by federal law or an international treaty (Part 3 of Article 62).

In a number of cases, the Constitution only general form speaks of the possibility of prohibition by law (of the Federation or its subject) of certain types of economic activity. There are, for example, bans on the cultivation of plant materials for the production of drugs, on such production and on the trade in drugs containing drugs without special permission and control from the state. Economic activities of citizens and legal entities, enterprises, etc. generally must occur within the framework of their special legal capacity.

The unity of Russia's economic space requires the unity of legislation on the national economy. This legislation should provide for the recognition throughout the country of acts (documents) of state authorities and local governments of all levels. It must support competition, limiting monopolism, controlling and regulating its inevitable tendencies (primarily in the field natural monopolies), promoting the creation and development of new independent enterprises, in particular in already monopolized market sectors. The implementation of these ideas began in 1990-1992.

The need to create stable, generally binding rules for the functioning of free market economy, which do not contradict individual, collective and universal rights, freedoms and legitimate interests, I am largely satisfied with the adoption and implementation of the first three parts of the Civil Code. They regulate in detail and in accordance with the Constitution legal status individuals and legal entities, property rights and other property rights, general issues law of obligations and numerous individual types of obligations. Issues of civil law that are not included in these three parts (for example, copyright, invention law) have so far been regulated by the Civil Code of the RSFSR of 1964 and federal laws. In the same way, relations regarding the use and protection of natural resources and much more remain only partially regulated on the basis of the Constitution; It turned out to be especially difficult to legislatively solve the problem of the conditions of ownership, use and disposal of agricultural lands, which limit the right of ownership and, in particular, the market turnover of these lands, supposedly in order to ensure their highly efficient use both in the interests of the owners and in the general interests.

The economic role of a democratic legal social state in a market economy comes down mainly to the implementation of three functions:

1) legislative definition of the circle of subjects of law for certain types of economic activity, as well as its objects and the relationships between them, in other words, the legal rules by which economic activity is carried out;

2) encouragement, protection and protection of socially and economically feasible forms of this activity (the behavior of its participants), carried out mainly through regulatory measures of a predominantly economic nature (increasing or lowering tax rates, bank interest on loans provided by state or semi-state banks; increasing or lowering prices for products and services produced under government orders, etc.), but within certain limits and by governmental, non-economic measures, especially when addressing labor, environmental, health and some others social problems National economy;

3) prevention of unification in the hands of public authorities, i.e. state power or local self-government, two areas of activity - the inherent exercise of power with economic activities characteristic of enterprises, aimed at making a profit in one form or another, except in cases where this is directly and reasonably permitted by law.

Ensuring the unity of the economic space of Russia is of particular importance in connection with the desire to develop integration processes within the CIS, leading to the gradual unification of the economic space of Russia, Belarus and other sovereign states, in which there would be free movement of both goods, services and financial resources, as well as labor forces, harmonization of legislation and joint legal regulation of economic activities.

Text Art. 8 of the Constitution of the Russian Federation in current edition for 2020:

1. The Russian Federation guarantees the unity of the economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity.

2. In the Russian Federation, private, state, municipal and other forms of property are recognized and protected equally.

Commentary to Art. 8 of the Constitution of the Russian Federation

1. Part one of the commented article is due to the federal nature of Russia. Along with a certain independence of the subjects of the Federation, the federal state must ensure the unity of the economic space (unity of the market). It is one of the main elements of ensuring the integrity of a state of this type, since economic ties between individual regions are the strongest connecting elements.

In addition, the creation of separate regional markets, isolated from the federal one, is fraught with economic losses for all participants. Cases of economic separatism have already occurred in the practice of the USSR and the Russian Federation, which resulted in the adoption of the Decree of the President of the RSFSR of December 12, 1991 “On the Single Economic Space of the RSFSR” * (27), and subsequently the consolidation of this principle in the Constitution of the Russian Federation.

To ensure the unity of the economic space, the Constitution of the Russian Federation places the establishment of the legal foundations of a single market under the exclusive jurisdiction of the Russian Federation; financial, currency, credit, customs regulation, money issue, basics pricing policy; federal economic services, including federal banks(Clause “g” of Article 71 of the Constitution of the Russian Federation).

The principle of unity of economic space also determines the provision of a single financial policy, which includes a unified tax policy, unity tax system, equal tax burden and the establishment of tax exemptions only on the basis of the law * (28).

In addition, Art. 74 of the Constitution of the Russian Federation states that on the territory of the Russian Federation the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources is not allowed (Part 1), and restrictions on the movement of goods and services can be introduced in accordance with with federal law, if it is necessary to ensure safety, protect the life and health of people, protect nature and cultural values ​​(Part 2).

The principle of free movement of goods, services and financial assets develops the principle of unity of economic space and is implemented through a ban on federal and regional authorities to make decisions that impede the free movement of goods, services and capital, as well as the establishment of unity of standards, the metric system, statistics, accounting, monetary system.

In addition to the unity of the economic space, in a federal state the guarantees established by part of the first commented article are designed to ensure the free development of a market economy throughout Russia. Based on this, the Constitution of the Russian Federation provided for the principles of supporting competition and freedom of economic activity.

In accordance with the legislation of the Russian Federation, competition is the rivalry of economic entities, in which the independent actions of each of them exclude or limit the ability of each to unilaterally influence General terms circulation of goods to commodity market. In turn, monopolistic activity is the abuse by an economic entity, a group of persons of its dominant position, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inactions) recognized in accordance with federal laws as monopolistic activities * (29).

Competition between economic entities stimulates economic development, the emergence of new technologies, and the demand for manufactured goods, works and services both in the local (within a given state) and in the global (international) market.

In a market economy, supporting competition and preventing monopolistic activity is the most important function of the state, designed to ensure the effective functioning of the market. Free competition is the most necessary condition for freedom of economic activity. Antimonopoly legislation began to take shape in economic developed countries in the middle of the 19th century Russian legislation in the field of competition protection is just being formed. Currently, Federal Law No. 135-FZ of July 26, 2006 “On the Protection of Competition” is in force in Russia.

Freedom of economic activity can be considered in several aspects. First of all, this is the freedom to choose the type of economic activity, in particular, determining for each person whether to be an entrepreneur, an employee, or not to engage in any economic activity at all. When a decision is made to carry out entrepreneurial activity, freedom of economic activity is manifested in the freedom to choose the form of such activity (individually or jointly with other persons by creating a legal entity) and the sphere in which entrepreneurial activity will be conducted.

In addition, freedom of economic activity can manifest itself as freedom to acquire, own and dispose of objects of civil rights, freedom of contract, etc.

Let us note that the Constitution of the Russian Federation widely uses the term “economic activity” without disclosing its content. The list of types of economic activities is established by the All-Russian Classifier of Types of Economic Activities (OKVED) * (30). At the same time, the classifier notes that economic activity occurs when resources (equipment, work force, technology, raw materials, energy, informational resources) are combined into a production process aimed at producing products (performing work, providing services). Economic activity is characterized by production costs, the production process and output (performance of work, provision of services). In other words, economic activity is the activity of creating a socially useful product.

However, it should be borne in mind that freedom of economic activity is not absolute. It may be limited by federal law to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (Part 3 of Article 55 of the Constitution of the Russian Federation). For example, restrictions on freedom of economic activity are state registration business entities and licensing.

The listed principles are developed and supplemented in acts of the Constitutional Court of Russia and in current legislation RF. For example, the principles of justice, stability civil turnover, integrity, balance of private and public interests.

2. The Constitution of the Russian Federation distinguishes the institution of property among all elements of the economic system. This is due to the fact that it is property relations that form the foundation of any economic system and largely determine the features of its functioning in a particular state. The right of ownership as a subjective right is the first and main of the property rights that determine a person’s attitude towards things and people’s attitudes towards things.

In the late 80s - early 90s. XX century The Russian Federation has carried out a radical change in its economic system. Russia moved from a command-administrative economy to building a market economy. Despite the fact that the commitment of the authors of the Constitution of the Russian Federation to the idea of ​​a market economy was not directly reflected in the Basic Law, in contrast, for example, to the draft Constitution of the Russian Federation prepared by the Constitutional Commission of the Congress of People's Deputies of the Russian Federation * (31), its text enshrines the basic principles that define the implementation of this particular type of economic system and the impossibility of returning to the previously existing type of command-administrative economy.

Among the factors that distinguish market type economy from command-administrative, we can call it a variety of forms of ownership. It is noteworthy that the Constitution of Russia in the commented article not only proclaimed recognition of the existence of various forms of property, but also guaranteed their equal protection.

At the same time, it is obvious that various shapes properties cannot be equal to each other. In particular, there are types of property that can only be in state or municipal ownership. The methods of acquiring and terminating ownership rights are also different for different entities. Based on this, the Constitution of the Russian Federation does not speak about equality, but about “recognition and equal protection” of all forms of property.

The state's recognition of the existence of multiple forms of ownership means that they all have equal grounds for existence in a given economic system. Thus, giving one form of ownership priority over others will contradict Art. 8 of the Constitution of the Russian Federation.

The principle of equal protection of all forms of property is manifested in the fact that the same legal regime is established for all forms of property, and all the features of the acquisition and termination of ownership of property, possession, use and disposal of it, depending on whether the property is owned by a citizen or a legal entity , owned by the Russian Federation, its subject or municipality, can only be established by law.

The main, dominant form of ownership in a market economy is private (which is emphasized by the fact that in the Constitution of the Russian Federation it is listed first in the list of forms of ownership).

Private property is the property of citizens and legal entities. Any property may be privately owned, with the exception of individual species property that, in accordance with the law, cannot belong to these entities. Private property is the basis of the economic system. Depending on the modification of the market economic system of a particular state, private property occupies up to 90-95% of general structure property.

Nevertheless, in any state there is a certain part of the property owned by public entities. In the Russian Federation, such entities include the Russian Federation itself, its constituent entities and municipal entities. Since state authorities are separated from local governments (Article 12 of the Constitution of the Russian Federation), state property is also different from municipal property.

As can be understood from the name, the subject of state property, the owner, is the state. At the same time, the state in the commented norm means not only the Russian Federation itself, but also its subjects.

Thus, state property in the Russian Federation is property owned by the Russian Federation (federal property) and its constituent entities - republics, territories, regions, federal cities, autonomous regions, autonomous districts (property of a constituent entity of the Russian Federation).

The last form of ownership directly named in the Constitution of the Russian Federation, municipal, means property owned by right of ownership municipalities.

On behalf of the state authorities of the Russian Federation, its constituent entities and municipalities, the powers of the owner are exercised by state authorities and local self-government, respectively.

State and municipal property can be united by the concept of “public property”, which is used in the legislation of a number of foreign countries, but neither the Constitution of the Russian Federation nor current legislation contains such a term. If private property is the ownership of property by specific individuals or legal entities, then public property presupposes the ownership of property by all citizens constituting the state or all permanent residents of the settlement constituting a municipality.

It is noteworthy that the Russian Constitution leaves the list of forms of property rights open. Thus, the possibility of the existence of other forms is allowed, for example, mixed ownership of a public entity and a legal entity. In particular, among “other” forms of ownership, joint-stock ownership, property of public associations, church and Cossack property deserve mention. The establishment of an open list of forms of ownership seems justified, since the economic system of Russia is in its infancy, and therefore, Russian legislation should contain reserves for development and not limit the economy where this is not justified from the point of view of its development and growth. Meaning constitutional regulation in the conditions of the emergence of a market economy, obviously, should be reduced to consolidating the pluralism of forms of ownership, their equality and legislative guarantees of the rights of the owner.

At the same time real situation forms of ownership in the Russian economy are far from the ideal structure provided for by the Constitution of the Russian Federation. At different stages of development of the Russian economy, the state both sought to expand the private sector and revised its policies in favor of creating large state corporations. At the same time, the protection of private property through constitutional norms is significantly complicated due to the absence in the Constitution of the Russian Federation of real mechanisms for protecting the economic values ​​and views enshrined in it.

Constitutional provisions on freedom of economic activity are the basis legal status various entities (individuals and legal entities) engaged in economic activities. They include: 1) the right to freely use one’s abilities and property for entrepreneurial and other economic activities not prohibited by law; 2) the right of private property, including the right to own, use and dispose of property, both individually and jointly with other persons;

3) the right of citizens and their associations to own land in private ownership; 4) the right to freely use one’s ability to work, choose the type of activity and profession; 5) the right to association (including for the purposes of joint management); 6) the right to freedom of movement, choice of place of stay and residence on the territory of the Russian Federation in order to choose a territory for carrying out economic activities.

Freedom of economic activity is based on other principles of a market economy, as well as the rights reflected in Chapter 2 of the Constitution of the Russian Federation and implemented in economic sphere. Of particular importance in a market economy are two aspects of freedom of economic activity: the ability to choose and carry out the type of economic activity, as well as the limitation of government intervention in entrepreneurial activity (business sphere). The Constitution must guarantee, on the one hand, the creation by the state of favorable conditions for organizing and running a business, and on the other hand, the inadmissibility of the state imposing excessive and unreasonable burdens on economic entities. The Constitutional Court of the Russian Federation indicated that in the Russian Federation “the most favorable conditions must be created for the functioning of the economic system as a whole.” According to the Court, the state needs to stimulate free, based on the principles of self-organization economic activity entrepreneurs as the main subjects of a market economy and take special measures aimed at protecting their rights and legitimate interests in the implementation of state regulation of the economy and thereby achieving the constitutional goal of optimizing state intervention in the regulation of economic relations.

Limitations on government intervention in business affairs are established in the Federal Law of December 26, 2008 No. 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs when implementing state control(supervision) and municipal control". The principles enshrined in this law for protecting the rights of legal entities and individual entrepreneurs when exercising appropriate control (supervision) guarantee freedom of economic activity and facilitate efficient business conduct. These principles include (there are ten in total): predominantly the notification procedure for starting certain types of business activities; presumption of good faith of legal entities and individual entrepreneurs; openness and accessibility for legal entities, individual entrepreneurs of regulatory legal acts of the Russian Federation, municipal legal acts, compliance with which is verified during the implementation of state control (supervision), municipal control, as well as information on the organization and implementation of state control (supervision), municipal control, the rights and responsibilities of state control (supervision) bodies, municipal control bodies, their officials, with the exception of information the free dissemination of which is prohibited or limited in accordance with the legislation of the Russian Federation; carrying out inspections in accordance with the powers of the state control (supervision) body, municipal control body, and their officials; the inadmissibility of inspections of the execution of the same issues carried out in relation to one legal entity or one individual entrepreneur by several state control (supervision) bodies and municipal control bodies mandatory requirements and requirements established by municipal legal acts; the inadmissibility of the requirement for legal entities and individual entrepreneurs to obtain permits, opinions and other documents issued by state authorities and local governments in order to begin business activities, except for cases provided for by federal laws; responsibility of state control (supervision) bodies, municipal control bodies, their officials for violation of the legislation of the Russian Federation in the exercise of state control (supervision), municipal control; the inadmissibility of state control (supervision) bodies and municipal control bodies from collecting fees from legal entities and individual entrepreneurs for carrying out control measures; financing from the relevant budgets of inspections carried out by state control (supervision) bodies, municipal control bodies, including control measures; separation of powers federal bodies executive power in the relevant fields of activity authorized to exercise federal state control (supervision), government bodies of the constituent entities of the Russian Federation in the relevant fields of activity authorized to exercise regional state control (supervision), on the basis of federal laws and laws of the constituent entities of the Russian Federation.

1. The Russian Federation guarantees the unity of the economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity.

2. In the Russian Federation, private, state, municipal and other forms of property are recognized and protected equally.

Commentary on Article 8 of the Constitution of the Russian Federation

1. The constitutional principles contained in this article form the basis of the constitutional economic system. These principles underlie a large set of constitutional norms, united by logical-legal connections and therefore representing a certain unity, a subsystem of norms built using the concept of an “economic constitution.” Through the efforts of economists and lawyers in Germany, France, Spain, Italy, the USA, and Portugal, a theoretical structure has been created, built into the system of constitutional law, which tries to explain how the constitution regulates economic relations * (22). It made it possible to connect into a single whole such heterogeneous and contradictory phenomena as freedom of economic activity and state intervention in the economic sphere. Being coupled with the concept of a social state, the economic constitution turns into the constitutional and legal basis of a socially oriented market economy.

As a subsystem of constitutional and legal norms, the economic constitution covers:

1) the principles of the foundations of the constitutional system on freedom of economic activity, a single economic space, diversity and equality of various forms of ownership, protection of competition (Article 8), on the social character of the state (Article 7);

2) constitutional norms on fundamental economic rights and freedoms and fundamental rights of economic and constitutional significance, as well as on constitutional guarantees of entrepreneurship (Article 7, Part 2, Article 34, Part 1, Article 74, Part 2, Art. 75); on the meaning of generally recognized norms and principles of international law and norms contained in international treaties of the Russian Federation (Article 15);

3) norms establishing constitutional economic public order: a) constitutional principles of state regulation of economic activity; b) rules on the possibility of restricting fundamental economic rights; c) rules on the powers of federal and regional government bodies in the field of legal regulation of entrepreneurship. The provisions of the Constitution relating to finance and taxes are united by a common theme. Constitutional financial right is an independent part of the "economic constitution".

The principle of unity of economic space is of particular importance in federal states, the subjects of which have their own legislation (Article 5 of the Constitution). It is also related to the category of "state unity" used in the preamble of the Constitution. A number of constitutional provisions in ch. 3 of the Constitution "Federal structure" establishes guarantees of the economic integrity of the federal state.

The Constitutional Court of the Russian Federation applied the principle of the unity of economic space to justify tax centralization in the Russian Federation. The Decree of the Constitutional Court of the Russian Federation of March 21, 1997 N 5-P * (23), concerning the provisions of the Law of the Russian Federation of December 27, 1991 N 2118-1 “On the fundamentals of the tax system in the Russian Federation” (as amended on November 11, 2003), contains an important legal position, according to which the principles of taxation and fees in the part directly determined by the provisions of the Constitution, in accordance with its paragraph “a” of Art. 71 are under the jurisdiction of the Russian Federation. These include: ensuring a unified financial policy, which includes a unified tax policy, unity of the tax system, equal tax burden and the establishment of tax exemptions only on the basis of law.

The principle of a unified financial policy is enshrined in a number of articles of the Constitution, primarily in its Art. 114 (clause "b" part 1), according to which the Government ensures the implementation of a unified financial, credit and monetary policy.

These provisions develop one of the foundations of the constitutional system - the principle of the unity of economic space (Part 1 of Article 8), which means, among other things, that the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods is not allowed on the territory of the Russian Federation , services and financial resources (Part 1 of Article 74), and restrictions on the movement of goods and services may be introduced in accordance with federal law if this is necessary to ensure safety, protect the life and health of people, protect nature and cultural values ​​(Part 2 Art. 74).

From the above constitutional norms it follows, in particular, that the establishment of taxes that violate the unity of the economic space of the Russian Federation is not allowed. From this point of view, it is unacceptable both the introduction of regional taxes, which can directly or indirectly limit the consolidated movement of goods, services, financial resources within a single economic space, and the introduction of regional taxes, which allows the formation of budgets of some territories at the expense of tax revenue other territories or transfer the payment of taxes to taxpayers of other regions.

The unity of the economic space and, consequently, the unity of the tax system is ensured unified system federal tax authorities. Tax authorities, as related to federal economic services, in accordance with the Constitution are under the jurisdiction of the Russian Federation (clause "g" of Article 71); tax authorities in the constituent entities of the Russian Federation they are territorial bodies of federal executive authorities (Part 1 of Article 78), and not bodies of the constituent entities of the Russian Federation.

The Constitutional Court of the Russian Federation, in Resolution No. 5-P of March 21, 1997, noted that identifying the constitutional meaning of the right to establish taxes guaranteed by the Constitution to government bodies of the constituent entities of the Russian Federation is possible only taking into account the fundamental rights of man and citizen enshrined in Art. 34 and 35 of the Constitution, as well as the constitutional principle of the unity of economic space. Based on the need to achieve a balance between these constitutional values, tax policy strives to unify tax exemptions. This goal is also served by such a general principle of taxation and fees as an exhaustive list of regional taxes that can be established by government bodies of constituent entities of the Russian Federation, and the resulting restrictions on the introduction of additional taxes and tax payments.

Justified by the constitutional principle of the unity of the economic space and formulated by the Court, the principle of tax centralization, by virtue of which the constituent entities of the Russian Federation do not have the right to impose additional taxes, underlies the adopted Tax Code (Articles 12-14). In the Resolution dated 02/05/1998 N 22-O*(24), the Constitutional Court of the Russian Federation indicated that on the basis of the legal position developed in the Resolution dated 03/21/1997 N 5-P, local government bodies also do not have the right to establish additional taxes and fees without provided for by federal law. A different understanding of the meaning contained in Part 1 of Art. 132 of the Constitution, the concept of “establishment of local taxes and fees” would contradict the actual content of the Constitution (see Resolution of the Constitutional Court of the Russian Federation of June 17, 2004 N 12-P in the case of verifying the constitutionality of a number of articles of the BC * (25)).

The principle of the unity of economic space was used by the Constitutional Court to substantiate the requirements for the unity of financial policy: “from the Constitution of the Russian Federation, namely from the requirements for the unity of financial policy and financial regulation, the establishment of the legal foundations of the single market, the unity of the economic space, which were developed in federal laws, it follows that the functioning budget system of the Russian Federation aims to guarantee the foundations of the constitutional order, financial support rights and freedoms of man and citizen, which, in turn, predetermines the constitutional requirements for the proper regulation of the budgetary and legal status of the constituent entities of the Russian Federation and municipalities as participants in budgetary relations, including the maintenance of budget accounts"*(26). Based on principle of the unity of economic space, the Constitutional Court came to the conclusion that the subjects of the Russian Federation are not deprived of the authority to establish administrative responsibility, including in certain areas of financial and credit regulation(Definition dated 04/08/2004 N 137-O*(27)). In the Resolution of the Constitutional Court of the Russian Federation dated December 10, 1997 N 19-P “On the case of verifying the constitutionality of a number of provisions of the Charter (Basic Law) of the Tambov Region” * (28) with reference to paragraph “g” of Art. 71 of the Constitution notes that the principle of unity of economic space enshrined in it (Part 1 of Article 8) predetermines the implementation of a unified financial policy and, accordingly, the presence of a unified financial system, including budget and tax; at the same time, government bodies of the constituent entities of the Russian Federation participate in financial, currency and credit relations of general federal significance, to the extent and to the extent that this is provided for and permitted by federal laws and other legal acts of federal government bodies; the assignment of financial, currency, and credit regulation to the jurisdiction of the Russian Federation does not prevent government bodies of a constituent entity of the Russian Federation, within the limits of their powers, from implementing measures to mobilize and spend their own financial resources.

The Constitutional Court of the Russian Federation also explained that by specifying the state’s obligation to guarantee the unity of the economic space, the Constitution (clause “g” of Article 71) places the establishment of the legal foundations of the single market under the jurisdiction of the Russian Federation, since without ensuring the priority, direct effect of the laws enshrining these legal basis(Civil Code, laws in the area antimonopoly policy and protection of competition, pricing, financial, currency, credit, customs regulation, etc.), freedom of economic activity cannot be realized throughout the entire state (see Resolution No. 4-P *(29) dated March 4, 1997).

The constitutional principle of the free movement of goods, services and financial resources, as interpreted by the Constitutional Court, underlies a special constitutional and legal regime for the stability of economic turnover, which is based on the principle of maintaining trust in the law.

Paragraph 2, part 1, art. 9 Federal Law dated June 14, 1995 N 88-FZ "On state support small business in the Russian Federation" (as amended on 02/02/2006) it was provided that if as a result of a change tax legislation If less favorable conditions are created for small businesses compared to the previously existing conditions, then during the first four years of their activity these entities will be subject to taxation in the same manner that was in effect at the time of their state registration.

Provision of the Federal Law of July 31, 1998 N 148-FZ “On the Unified Tax on Imputed Income for Certain Types of Activities” (as amended on July 24, 2002) on the inadmissibility of further application of paragraph. 2 hours 1 tbsp. 9 of the Federal Law “On State Support of Small Business in the Russian Federation” cannot have retroactive effect and does not apply to ongoing legal relations that arose before the day of official publication of the new regulation, including the corresponding normative act of the legislative (representative) body of the subject of the Federation on the introduction of a single tax Such an interpretation of this provision is due to the constitutional and legal regime of stability of business conditions, derived from Part 1 of Art. 8, part 1 art. 34 and art. 57 of the Constitution, the Constitutional Court noted in its Ruling dated July 1, 1999 No. 111-O*(30).

Resolution of the Constitutional Court of the Russian Federation dated February 23, 1999 N 4-P "In the case of verifying the constitutionality of the provisions of part two of Article 29 of the Federal Law of February 3, 1996 "On Banks and banking"in connection with the complaints of citizens O.Yu. Veselyashkin, A.Yu. Veselyashkin and N.P. Nazarenko" * (31) allows us to deepen our understanding of the content of the constitutional principle of stability of economic turnover, derived from the principle of free movement of goods, money and financial assets (Part 1, Article 8 of the Constitution).

By virtue of this principle, the state is obliged to provide conditions for stable civil circulation and use legal regulation for this. Government regulation market relations is expressed in establishing the procedure for the creation and activities of their participants.

Legal regulation of the market should not violate the basic principles of a market economy: equality of participants in turnover, freedom of acceptance economic decisions and independent responsibility for their results, responsibility for the harm caused.

The relationship between depositors and the bank is part of civil transactions. The stability of these relations, in the opinion expressed by the Court, should be ensured by creating public law, mandatory rules limiting the formal freedom of contract.

The principle of free movement of financial resources can be considered as an independent legal phenomenon. A. A. Efremov draws attention to its dual essence: as a guarantee (condition) for the movement of goods and services, since their market turnover is possible only with simultaneous money circulation; and as an independent principle of legal regulation of relations arising during the circulation of financial resources outside the circulation of goods and services * (32).

This constitutional principle underlies the legal regulation of such a segment of the single market as financial market, which also includes the equity securities market.

State-guaranteed support for competition is a constitutional and legal instrument for creating a favorable economic environment. For these purposes, state intervention in the sphere of economic relations is justified. The state, bearing in mind the provisions of Part 2 of Art. 34 of the Constitution on the inadmissibility of economic activities aimed at monopolization and unfair competition, through the adoption of competition laws, must ensure support for fair competition between business entities, establishing the necessary restrictions (limits) on the freedom of economic activity. Thus, the constitutional principle of supporting competition fulfills the role of restrictions on this freedom contained in the Constitution itself.

Economic freedom, within the meaning of the Constitution, presupposes, first of all, freedom of enterprise. Freedom of entrepreneurial activity is a universal (integrated) principle of constitutional law, which combines several relatively independent principles of legal regulation of relations in the field of entrepreneurial activity (the principle of freedom of contract, the generally permissible principle, the principle of freedom of competition, etc.).

The Russian constitutional and legal model of relations between public authorities and business is built on the principle of economic freedom. It is based on the recognition of the objectively existing limits of regulation of business activities by public authorities.

The constitutional principle of freedom of economic activity, enshrined in the foundations of the constitutional system (Article 8 of the Constitution), is based on norms that establish the rights inherent in a society in which a market type of economy operates. They can be referred to as fundamental economic rights. These include:

The right to choose a type of activity or occupation means freedom economic choice: to be either an entrepreneur-employer or an employee (Article 37);

The right to move freely, choose a place of stay and residence means freedom of the labor market (Article 27);

The right to association - presupposes the corresponding right for joint economic activity, and therefore the freedom to choose organizational and legal forms of entrepreneurial activity and the formation of various business structures in the notification procedure (Part 1, Article 30);

The right to own property, own, use and dispose of it both individually and jointly with other persons (Part 2 of Article 35), freedom to own, use and dispose of land and other natural resources (Part 2 of Article 36), use of property for the purposes of entrepreneurial activity (Part 1 of Article 34) - means freedom to form the property base of entrepreneurship, use of property, freedom to sell manufactured goods on the market, including the right to freedom of contract;

The right to protection from monopolism and unfair competition (Article 34) presupposes freedom of competition.

The normative content of freedom of economic activity as a constitutional principle includes, as evidenced by the practice of the Constitutional Court of the Russian Federation, first of all, the adoption of economic decisions free from any influence.

The constitutional principle of freedom of economic activity served as the basis when the Constitutional Court of the Russian Federation adopted Resolution No. 21-P dated December 23, 1997 “In the case of verifying the constitutionality of paragraph 2 of Article 855 Civil Code of the Russian Federation and part six of Article 15 of the Law of the Russian Federation "On the Fundamentals of the Tax System in the Russian Federation" in connection with the request of the Presidium Supreme Court Russian Federation"*(33).

In the Resolution of the Constitutional Court of the Russian Federation of January 30, 2009 No. 1 in the case of verifying the constitutionality of the provisions of paragraphs 2, 3 and 4 of Art. 13 and para. second clause 1.1 art. 14 of the Federal Law “On the Turnover of Agricultural Land” in connection with the complaint of citizen L.G. Pogodina notes that the main principles listed in paragraph 1 of Art. 1 of the Civil Code of the Russian Federation, have constitutional significance, that is, they are constitutionally significant principles, which, due to this, can be considered as criteria in the implementation of judicial-constitutional control.

The rights of ownership, use and disposal of property, as well as freedom of entrepreneurial activity and freedom of contracts may be limited by federal law, but only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the country's defense and state security (Part 3 of Article 55 of the Constitution), which corresponds to the provisions of Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, regulating through civil legislation the entrepreneurial activities of commercial organizations, including joint stock companies, federal legislator in accordance with clauses “c” and “o” of Art. 71 of the Constitution must take into account that, within the meaning of the provisions of Part 3 of Art. 55 of the Constitution in conjunction with its art. 8, 17, 34 and 35 possible restrictions by federal law on the rights of ownership, use and disposal of property, as well as freedom of enterprise and freedom of contract, based on general principles of law, must meet the requirements of fairness, be adequate, proportionate, proportionate and necessary for constitutional protection significant values, including the rights and legitimate interests of other persons.

Resolution of the Constitutional Court of the Russian Federation of February 23, 1999 N 4-P explains that from the meaning of the indicated constitutional norms on freedom in the economic sphere (Articles 9, 34 and 35) follows the constitutional recognition of freedom of contract as one of the freedoms of man and citizen guaranteed by the state, which The Civil Code is proclaimed among the main principles of civil legislation (clause 1, article 1). At the same time, the constitutional freedom of contract is not absolute, should not lead to the denial or derogation of other generally recognized rights and freedoms (Part 1 of Article 55 of the Constitution) and can be limited by federal law, but only to the extent necessary to protect the foundations of the constitutional system, the rights and legitimate interests of other persons (Part 3 of Article 55 of the Constitution).

2. Protection of various forms of property is one of the main functions of the state. Its content varies depending on the nature of the economic system. IN Soviet period history, the priority constitutional value was the public type of property, and therefore public property was protected by the state as a priority. The current Constitution does not consider any form of property as the main one and, as a result, recognizes and equally protects various forms of property. The variety of forms of ownership characterizes the foundations of the economic system as a market one.

The state must develop economic policy, implement it in legislation based on the inadmissibility of creating unjustified advantages for any organizational and legal forms of entrepreneurial activity. In the field of criminal legislation, the constitutional principle in question found expression in a unified criminal legal protection of all forms of property, replacing the increased protection of state property that previously existed in the previous criminal legislation.

Under the direct influence of the constitutional principle of recognition and protection of equally different forms of property is the system of legal norms that determine the participation of the Russian Federation, its constituent entities and municipalities in relations regulated by civil legislation (Chapter 5 of the Civil Code), as well as relations that are administrative and legal in nature, related to the provision of government subsidies to ineffective enterprises.

The constitutional principle under consideration is intended to correct the relationship between government authorities and business. The content of this principle imposes additional restrictions on the authorities and the state. Power must be equidistant from various business structures and communities, otherwise unacceptable models of relations between government and business arise, fraught with conflicts of interest, unfair competition, and unequal protection of various organizational and legal forms of entrepreneurial activity. Violations of the principle of equal protection are cases where administrative levers are used to create preferential terms for conducting business activities by business structures affiliated with government authorities. In addition, this principle introduces for the state certain restrictions on the degree of intensity of “conducting” private enterprises.

The principle in question was the basis for the adoption of a number of decisions of the Constitutional Court of the Russian Federation, in particular, Resolution No. 33-O*(35) dated 02/08/2001 on complaints from several JSCs, which challenged the constitutionality of the provisions of paragraph 8 of Part 1 of Art. 33 of the Labor Code of the Russian Federation, included in the Code in the pre-constitutional period. According to this provision, an employment agreement (contract) concluded for an indefinite period, as well as a fixed-term employment agreement (contract) before its expiration, can be terminated at the initiative of the administration of an enterprise, institution, or organization if an employee commits theft at the place of work (including small) state or public property established by a court verdict that has entered into legal force or a resolution of an authority whose competence includes the imposition of an administrative penalty or the application of public sanctions.

The Constitutional Court came to the conclusion that the principle of equal protection should apply to all types of property enshrined in the Constitution to the same extent as it applied to state and public property before the Constitution came into force. Otherwise would mean that the employer's right to terminate employment contract with the employee is made dependent on what form of ownership the stolen property of the enterprise belongs to, which is not consistent with the requirements of the Constitution.

Dynamics of legal regulation of public property relations in last years was largely determined by new ideas about the constitutional principle of recognition and protection equally of all forms of property. The legislator’s new “reading” of this principle means that state property began to be considered in the unity of federal property and the property of the constituent entities of the Russian Federation. It is considered by the legislator as a single Property Complex the federal state as a whole, as the material basis of the Russian state, which should, according to the authors of the new interpretation, correspond to the state integrity of the Russian Federation and reinforce the unity of the system of state power. From our point of view, the authorship of this interpretation of the constitutional principle belongs to the developers of the Constitutional Code and the legislation on the division of powers. In their opinion, the constitutional principle enshrined in Part 2 of Art. 8, should predetermine the specifics of the legal regulation of public property, as well as determine the limits of the rights of constituent entities of the Russian Federation and municipalities as public owners. In particular, the protection of property of the constituent entities of the Russian Federation cannot be considered without taking into account the requirements of the Constitution and federal legislation, which express and enshrine in the form of general regulations the general will of the state as a whole regarding the functioning and protection of state property.

Ownership rights to funds of regional and local budgets in accordance with these views, they cannot mean complete freedom of economic activity of the relevant authorities of the constituent entities of the Russian Federation, exercising their powers on behalf of public owners.

In our opinion, these supposedly new views are a reminiscence of our previously existing ideas about a single fund of state property.

The new interpretation of the constitutional principle of Part 2 of the commented article, adopted by the federal legislator, led to a distortion in non-core laws of the basic legal principles underlying the legal regulation of property relations and enshrined in the Civil Code. Federal Law of July 4, 2003 N 95-FZ "On Amendments and Additions to the Federal Law "On general principles organizations of legislative (representative) and executive bodies state power of the constituent entities of the Russian Federation" (as amended on July 22, 2008) very clearly defined the property (its types) that can be owned by the constituent entities of the Russian Federation. From the content of Article 26.11 of this Law it follows that only that can be owned by the constituent entities of the Russian Federation property that is necessary for government bodies at the regional level to exercise their powers. Within the meaning of this article, any other property cannot be owned by constituent entities of the Russian Federation and is subject to alienation in the manner and within the time frame established by the legislation on privatization. In relation to municipal property, exactly the same property has been chosen approach. Federal Law N 131-FZ has determined an exhaustive list of property that may be owned by municipalities. The ability to have property in municipal ownership is determined by issues of local importance for which it is used, certain state powers for the implementation of which it is transferred, and the powers , the implementation of which is provided for by federal laws.

To what extent does the approach chosen by the legislator correspond to the constitutional principle of equality of all forms of property? Don’t these norms of two federal laws put private property in a dominant position in relation to public property, since they exclude the right of public owners to own any property that is not withdrawn from civil circulation and is not limited in circulation? How realistic and, most importantly, advisable is it to have lists of types of property necessary for the exercise of powers specified in paragraph 17 of Art. 1 of the Federal Law of July 4, 2003 N 95-FZ, which must be established by the laws of the constituent entities of the Russian Federation no later than January 1, 2005?

The new approach, according to which not any property can be in public ownership of the constituent entities of the Russian Federation and municipalities, but only that which directly serves as the material basis for the powers that are assigned to them, means enshrining in a non-core law that is not part of the civil legislation, the principle of strictly targeted nature of state property, i.e. the impossibility for public owners to be owners of certain types of property, which at the same time is not withdrawn from circulation. This principle is unknown to the current civil legislation, which contains rules on “the peculiarities of the acquisition and termination of ownership of property, possession, use and disposal of it”, depending on whether it is in private or public ownership (clause 2 of Article 212, Clause 1 of Article 214 of the Civil Code), i.e. about the peculiarities of the procedure for exercising property rights, but not about the possibilities of limiting the object composition of property belonging to the owners.

In paragraph 4 of Art. 212 of the Civil Code enshrines a norm arising from the constitutional principle, according to which “the rights of all owners are protected equally.” We believe that this norm is part of the normative content of the constitutional principle of inviolability of property, which, unfortunately, has not yet been fully identified either by science or practice.

The question arises to what extent the principle of inviolability of property should format the legal regulation of public property relations. From our point of view, from this constitutional principle follow the provisions enshrined in the Civil Code, according to which there is one single right of ownership, which assumes that all subjects of law recognized as owners have the same powers, and the state must ensure equal protection of the rights of all owners, including by abandoning unjustified restrictions on the object composition of property that may belong to public owners.

Subjects of the Russian Federation and municipalities are full owners. Only property relations based on equality can arise between such legal entities. Otherwise, when federal law allows for the “redistribution” of property of constituent entities of the Russian Federation in connection with the ongoing division of powers in the federal system, there is a violation of the requirements, imperatives, and prohibitions that form the content of the constitutional principle of inviolability of property.

In the Determination of the Constitutional Court of the Russian Federation dated November 2, 2006 N 540-O "At the request of the Government of the Samara Region to verify the constitutionality of Article 1, parts six and eight of Article 2 of the Federal Law "On Amendments and Additions to the Federal Law "On General Principles of the Organization of Legislative (Representative)" bodies of state power of the constituent entities of the Russian Federation" and Article 50 of the Federal Law "On the General Principles of the Organization of Local Self-Government in the Russian Federation" * (36) contains an important legal position based on the interpretation of Part 2 of Art. 8 of the Constitution, according to which the list of property in Art. 50 of Federal Law N 131-FZ does not prevent municipalities from using legally established methods of attracting Money to form own income local budgets, including having property rights and receiving subsidies from other budgets to resolve issues of local importance, as well as receiving subventions for the exercise by local governments of certain state powers, and therefore cannot be considered as not allowing the presence of other property in municipal ownership, having such a purpose, i.e. cannot be considered as a closed list of property.