Business Law in Russia

The development of business law in the pre-revolutionary period

The origins of the science of Commercial and Entrepreneurial Law originate in the writings of the most prominent Russian legal scholars of the 18th - early 19th centuries, who linked their life and work with Moscow University.

KD Ushinsky , who graduated from the Law Faculty of Moscow University, in his works (mid-19th century) for the first time in legal science substantiated the need to distinguish from Civil Law as an independent legal branch of Commercial Law . It should also be borne in mind that the problems of legal regulation of entrepreneurship in the Russian Empire were studied by scientists in the fields of civil, commercial, financial, land law, which testified to the complex nature of science and the field of business law.

In 1876, Professor N.O. Nersesov founded a department of commercial law at Moscow University for the purpose of a special study of the problems of legal regulation of entrepreneurial activity, and for the first time at the university he began to give lectures on commercial law, and later (in 1896) published the book "Commercial Law ".

A significant contribution to the formation of the ideas of business law was made by I. I. Yanzhul , in the late XIX - early XX centuries. A professor at Moscow University, who was educated in law, economics and finance in Moscow, London, Leipzig and Dresden, paid special attention to the legal regulation of entrepreneurship in the Russian Empire and, above all, in the field of industrial activity (late XIX - early XX c.), and also raised the question of the inextricable combination of private law and public law principles in the regulation of entrepreneurial (commercial, industrial, land, etc.) relations.

It should be noted that the scientific ideas of entrepreneurial law were also developed in the works of other great scientists, whose life and work are not related to Moscow University, but which must be mentioned: P. P. Tsitovich (“The Doctrine of Entrepreneurial Profit” (Kiev, 1889 ); “Essays on the Theory of Commercial Law” (St. Petersburg, 1902); G. F. Shershenevich (“The Course of Commercial Law” (M., 1908), as well as A. I. Kaminki (“Joint-Stock Companies. Legal Research” ( St. Petersburg. 1902); "Entrepreneurial unions (essays on cartel law") (St. Petersburg, 1909); "Fundamentals of rinimatelskogo rights "(Petrograd, 1917).

The development of entrepreneurial (economic) law in the Soviet period

Formation of a modern concept of business law

The modern concept of entrepreneurial law as a branch of law, a branch of law, science and academic discipline proceeds from the fact that the market in the classical sense and a state-regulated and socially-oriented market in modern conditions (namely, this is the task of creating a market economy) is not one and the same ^[2] . Proponents of the concept argue that in addition to private, there is and will continue to be entrepreneurial activity in the public sector of the economy. However, it is not only a matter of the existence of a special form of entrepreneurial activity — state entrepreneurship, which requires special legal regulation that goes beyond the traditional framework of private law. In modern conditions, a specific form of the relationship between the state and the market has formed, in which the regulation of entrepreneurial activity by private law methods (traditionally, therefore, within the framework of civil law) is simply impossible. The idea that this kind of relationship can be resolved within the framework of traditional private (civil) law, in legislative practice will inevitably lead to one of two consequences: the inclusion in the civil code of elements alien to it of a state, public law nature or the idea of ​​regulating state-owned business on non-market basis. From this we can conclude that since civil law, as well as commercial law specifically as private, does not organically accept the institution of a market-state economy, a state-regulated and socially-oriented market, therefore, objectively, the need arises for the emergence of entrepreneurial law.

Entrepreneurial law today is an integral part of the system of Russian law as a law of a market economy. However, the understanding of entrepreneurial law as an independent complex integrated branch of Russian law, and even more so with the tendency of its development into the main branch of law, was not always shared by all jurists. The question of the unity and differentiation of the legal regulation of property relations was debatable in Soviet times. The main disputes were between representatives of economic and civil law concepts. The essence of the first was the regulation by a single branch of economic law of relations on the regulation of economic activity (horizontal relations between legally equal entities) and relations on the management of this activity. Proponents of a civilistic approach defended the point of view according to which economic relations cannot be regulated by a single independent branch of law, but should be regulated by different branches of law (civil, administrative, financial, etc.).

The most consistent point of view, according to which business law cannot be isolated in a special branch of law, is upheld in the works of E. A. Sukhanov . At the same time, he recognizes “the isolation of the relevant legislative array, as well as the allocation of academic discipline devoted to the study of legal regulation of entrepreneurial activity, which are comprehensive in nature, encompassing both private law and public law constructions ^[3] ”.

Proponents of the concept of business law proceed from the fact that legislation in the field of entrepreneurship and the economy cannot be only private or only public. Due to their specifics, the corresponding spheres of society’s life do not imply the possibility of forming exclusively private or public legislation. In addition, the delineation of the right to industries and the justification of their independence is an important issue for legal science and the teaching of law. But this problem is more intra-legal, important for the legal scholars themselves. For society as a whole, the main thing is the completeness and effectiveness of the legal regulation of entrepreneurship in the Russian Federation.

The concept of business law as an integrated branch of law has been developed for many years in the Russian Federation and in foreign countries (the concept of “business law” or business law ). From these positions , V.K. Reicher 's conclusions made more than 60 years ago that complex branches of law must meet three conditions do not lose:

1. The totality of legal norms must correspond to a specific, specific circle of social relations, that is, have objective unity.
2. A specific circle of relations regulated by such an aggregate should have great social significance
3. The regulatory material forming such an aggregate should have an extensive volume ^[4] .

The most consistent position on the independence of business law as a branch of law is upheld in the works of V.V. Laptev , V.K. Mamutov , V.S. Martemyanov , although there are certain differences of a non-conceptual nature. So, V. S. Martemyanov defined entrepreneurial law as a branch of law that constitutes “a set of rules governing entrepreneurial relations and other closely related to them, including non-profit relations, as well as relations on state regulation of the economy in order to ensure the interests of the state and society” ^[5] .

The specifics of entrepreneurial law, as well as entrepreneurial law, finds expression in the combination, interaction of private law and public law interests, private law and public law tools. It should be noted that today it is difficult to attribute this or that branch of law only to private or only to public law. There is a rapprochement of private law and public law spheres of regulation, which is expressed, in particular, in a significant increase in the role of the court in resolving disputes arising in the field of entrepreneurship in the application of public law funds.

Thus, the most justified and adequately reflecting the reality of the current stage of development of the Russian law system seems to be the point of view according to which business law is an independent integrated branch of Russian law, which tends to grow into the main industry.

The legislation on entrepreneurship includes a significant part of the laws of various sectoral affiliations:

• Constitution of the Russian Federation (Articles 8, 34-37, 74, 75, etc.)
• Civil Code of the Russian Federation (Articles 1-5, 18, 23, 51, 67, Chapters 4-7, etc.)
• Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs", August 8, 2001
• Federal Law "On the Development of Small and Medium Enterprises" dated July 24, 2007 (there is a federal law more relevant than 2010)
• Federal Law "On Joint-Stock Companies" dated December 26, 1995
• Federal Law "On Limited Liability Companies" dated February 8, 1998
• Federal Law "On State and Municipal Unitary Enterprises" dated November 14, 2002
• Federal Law "On Production Cooperatives" dated May 8, 1996
• Federal Law "On Non-Profit Organizations" dated January 12, 1996
• Federal Law "On Foreign Investments" dated July 9, 1999
• Federal Law "On the Licensing of Certain Types of Activities" No. 99-FZ of May 4, 2011
• Federal Law "On Protection of Competition" dated July 26, 2006
• Federal Law "On the Securities Market" dated April 22, 1996
• Federal Law "On the Privatization of State and Municipal Property" dated December 21, 2001
• Federal Law "On Banks and Banking" of February 3, 1996
• Federal Law "On the Central Bank of the Russian Federation" dated July 27, 2002
• Federal Law "On Auditing" dated December 30, 2008
• Federal Law "On Insolvency (Bankruptcy)" of October 26, 2002
• Federal Law "On the contract system in the field of procurement of goods, work, services to meet state and municipal needs" dated 04.04.2013 N 44-FZ
• Federal Law "On Advertising" dated March 13, 2006
• Federal Law "On the Electric Power Industry" dated March 26, 2003
• Federal Law "On Subsoil" of February 21, 1992
• Decrees of the President.
• Government Decisions.

The complex nature of legislation on entrepreneurship is largely due to the fact that the state is constantly in search of a fair combination of public and private interests.

Systematization of legislation on entrepreneurial activity is an objective and logical process. In some market economies, business laws are codified, that is, Business Codes have been adopted .

The system when a business or trade code is adopted in the country at the same time as the civil code is called a dualistic system of private law . In other countries (including Russia), a monistic system has been adopted, meaning that only a civil code has been adopted ^[6] .

Russian legal literature discusses the codification of business legislation, that is, its transition to a dualistic system of private law. Proponents of the adoption of the Commercial Code of Russia propose to combine in it the norms of private and public law involved in the regulation of relations emerging in the process of entrepreneurial activity ^[7] . Proponents of a civilistic approach, say that private relations in business law (commercial law) should be included in the Civil Code. To date, the question of creating an Entrepreneurial (Economic) Code has not been fully resolved due to a dispute between business executives and civilists. The difference between the Civil and Economic Codes, from the point of view of business executives, is that the Civil and Economic Codes govern the same relations, with the difference that the Civil Code defines their external component, and the Commercial one determines its internal component. In the event of the adoption of the Entrepreneurial (Economic) Code of Russia, the following sections may enter into it:

Part 1. General business law

• Section 1. The main principles of managing
• Section 2. Business entities (registration, reorganization and liquidation of business entities, types (joint-stock companies, state unitary enterprises, institutions, etc.), forms of associations and joint activities (concerns, holdings), ownership and other property rights to business entities (privatization, nationalization )
• Section 3. Organization and management of the business entity (management, marketing, accounting, organizational contracts, paperwork)
• Section 4. State regulation in economic activities (lensing, standardization, certification, special business regimes)

Part 2. Commercial economic law (commercial law)

• Section 5. Competition (competition protection, tenders, natural monopolies)
• Section 6. Advertising
• Section 7. Trade (organization of trade and the provision of services, the rights of entrepreneurs and consumer rights)
• Section 8. Features of legal regulation in certain areas of management (commodity, exchange, financial, banking, gambling, restaurant, merchant shipping, etc.)

The adoption of the Entrepreneurial Code from the point of view of civilians is also possible, but it will include only private-public intraeconomic relations in organizations that are not affected by the Civil Code. There are other options for codification, in particular with the regulation of property and personal non-property relations in entrepreneurial activity, while the Civil Code regulates the same relations between ordinary entities.

• Business law of the Russian Federation
• The official website of the Department of Entrepreneurial Law of Moscow State University M.V. Lomonosova
• Gubin E.P., Lakhno P.G. Business Law of the Russian Federation . - M .: Lawyer, 2003.
• Batychko V.T. Lecture Notes . - Taganrog: TTI SFU, 2011.