State corporations reasons for creation and features of functioning. State corporations in Russian legislation. State corporations, state-owned companies and state-owned enterprises: the relationship of concepts

State corporation as an organizational and legal form of a legal entity.

State corporations in Russian legislation.

7) after making a property contribution to a state corporation, the Russian Federation loses ownership of this property, which passes to the state corporation as a legal entity.

The Russian Federation, as the founder of a state corporation, does not have obligatory claims to its property. When a state corporation is liquidated, the property remaining after satisfaction of the creditors' claims is directed to the purposes provided for by the law on the liquidation of the state corporation.

The Russian Federation has only the rights to participate in management, including control, in relation to a state corporation.

On the use of the concepts “corporation” and “state” to designate state corporations.

In the legal literature, quite often in relation to state corporations it is pointed out that the concepts “corporation” and “state” are used incorrectly to designate them.

In relation to the first concept, this is due to the fact that state corporations do not have membership and are not an association of persons or capital, and in relation to the second concept, this is due to the fact that state corporations, unlike state enterprises and institutions, themselves, as legal entities, are owners of your property.

However, in relation to the concept of “corporation”, it is necessary to take into account that in Russian legal science today there is no consensus of opinion both regarding the content of the concept “corporation” and regarding the range of legal entities classified as corporations.

This concept means:

Associations of persons on the basis of membership;

Associations of both persons and capital;

Associations of capital only.

In this regard, it is possible to determine what is meant by the concept of “corporation” in each specific case only based on the context.

This is due, first of all, to the fact that the content of this concept differs in both the continental and Anglo-Saxon systems of law.

In European continental law, there is a division of legal entities according to the criterion of membership into corporations and institutions.

However, this classification is most often derived from German law. In some national legal systems of European countries (for example, in France), the concept of “corporation” is not used at all when defining the forms of legal entities.

In the states of the Anglo-Saxon legal system, the concept of “corporation” essentially means what in Russian law is designated as a “legal entity.” In this regard, corporations themselves are divided into individual corporations and associations.

The system of insurance of citizens' deposits in banks of the Russian Federation was built on the basis of the experience of the American deposit insurance system, and the Agency for Restructuring of Credit Institutions, and then the Deposit Insurance Agency, were created in the image of the Federal Deposit Insurance Corporation. This is where such an organizational and legal form as a state corporation, which is a one-person corporation, emerged.

In this case, one could say that the Russian legal system, which belongs to the continental system of law, includes an element that is not characteristic of it.

However, here it is necessary to take into account that the division of legal entities according to the criterion of membership into corporations and institutions has not received legislative support in Russian law.

Firstly, institutions are traditionally recognized as an independent organizational and legal form, and not as a type of legal entity. The same can now be said about corporations.

Secondly, for example, business companies established by one founder cannot be considered as any kind of association.

Thirdly, the concept of “membership” in Russian legislation is used mainly in relation to non-profit organizations (consumer cooperatives, public and religious organizations, associations and unions, non-profit partnerships, communities of indigenous peoples), and from commercial organizations - only in relation to production cooperatives (Article 107 of the Civil Code of the Russian Federation). In addition, membership exists in peasant (farm) holdings, which are not recognized as legal entities (Clause 3, Article 1, Article 14 of the Federal Law “On Peasant (Farming) Farming”).

From this point of view, it turns out that, for example, business companies that are associations of capital cannot be classified as corporations.

In addition, a state corporation is also a form of association, only of a special kind. It represents one of the legal forms of public-private partnership, i.e. interaction between the state and subjects of private law. In this case, the state creates the property base for the activities of the corporation, and the corporation is required to take the initiative in achieving certain goals. In other words, the state does not directly finance certain programs, but indirectly (through an intermediate link that itself determines the direction of use of property in order to achieve the goals of its activities).

As for the concept of “state”, in relation to state corporations it also has a different meaning than in relation to state unitary enterprises and institutions. In this case, this concept means: created by the will of the state and on the basis of its property.

The proposed replacement of the concept “state” with “public” to designate state corporations is also not an ideal option.

Firstly, in Russian law there is no legislative division of legal entities into private and public. In this regard, all legal entities are subject to the rules of private (civil) law. Thus, government bodies that are given the status of a legal entity in order to participate in property turnover, as a rule, in the form of a state institution, are also subject to the corresponding rules of civil law.

State corporations do not necessarily have to be endowed with power. Therefore, if legal entities are divided into private and public, then most of the state corporations will fall into an intermediate group, different from both legal entities of private law and government agencies.

Thus, the doctrinal classification of legal entities according to the presence of a public element (i.e., activities in the interests of the whole society) in Russian law will have a three-fold division:

1) legal entities of private law (act in their own interests);

2) mixed legal entities (act for certain purposes of a public nature and may be vested with separate powers for this purpose);

3) legal entities of public law (perform the functions of public authorities).

Secondly, the term “public property” is used to combine the concepts of state (federal and constituent entities of the Russian Federation), as well as municipal property, which will further distort the essence of a state corporation established only at the expense of federal property.

Thus, we can conclude that the classifications into which they are trying to place state corporations are of a purely doctrinal nature and are not enshrined in Russian law.

Accordingly, state corporations have every right to exist in Russian law precisely in the sense of a separate organizational and legal form. However, it would be better if such corporations were called federal rather than state.

Features of consolidating the legal status of state corporations.

In relation to each state corporation, a separate federal law is adopted, the provisions of which take precedence over the provisions of the legislation on non-profit organizations as special ones. In particular, this follows from clause 4 of Article 7.1 of the Federal Law “On Non-Profit Organizations”, according to which the provisions of this Federal Law apply to state corporations, unless otherwise provided by the law providing for the creation of a state corporation. Accordingly, it turns out that general legislation on non-profit organizations applies to state corporations only to the extent not regulated by a special law.

In turn, the legislation on non-profit organizations is special in relation to the provisions of the Civil Code of the Russian Federation.

It should be noted that the provisions of the Civil Code of the Russian Federation as a codified act, although this is directly enshrined in its paragraph 2 of Article 3, cannot enjoy unconditional priority in relation to the provisions of other federal laws, since this contradicts the Constitution of the Russian Federation. According to the legal position of the Constitutional Court of the Russian Federation, “Article 76 of the Constitution of the Russian Federation does not and cannot define the hierarchy of acts within one type,” that is, one federal law, which is the Civil Code of the Russian Federation, cannot always be higher in legal force other others (see paragraph 8, paragraph 3 of the reasoning part of the Determination of the Constitutional Court of the Russian Federation of November 5, 1999 N 182-0 “At the request of the Moscow Arbitration Court to verify the constitutionality of paragraphs 1 and 4 of part four of Article 20 of the Federal Law “On Banks” and banking activities").

The special nature of the provisions of federal laws on state corporations is also manifested in the fact that in accordance with paragraph 3 of Article 7.1 of the Federal Law “On Non-Profit Organizations”, in the law providing for the creation of a specific state corporation, in addition to the name of the state corporation, the purposes of its activities and location must be determined:

The procedure for managing its activities (including the governing bodies of the state corporation and the procedure for their formation, the procedure for appointing officials of the state corporation and their dismissal);

The procedure for reorganization and liquidation of a state corporation and the procedure for using the property of a state corporation in the event of its liquidation.

Thus, in order to reorganize or liquidate the Deposit Insurance Agency, the adoption of a special federal law on this is required (Article 26 of the Law).

The same applies to reorganization and liquidation:

3) budget funds.

In particular, in 2007, in accordance with Article 2.1, paragraph 1 of Article 135.1 and Article 135.2 of the Federal Law “On the Federal Budget for 2007”, it was decided to use funds from the Stabilization Fund of the Russian Federation (Vnesheconombank , State Corporation "Rosnanotech"), funds received from the open joint-stock company "Oil Company "YUKOS" to pay off tax debts (Fund), funds from the federal budget (Vnesheconombank, State Corporation "Rosnanotech");

4) federally owned securities.

For example, provision is made for the transfer to Vnesheconombank of federally owned shares of the development bank and the specialized Russian Export-Import Bank (clause 2, clause 1, article 18 of the Law);

5) rights of claim under contracts.

Thus, from the date of state registration of the Olimpstroy Group of Companies, all rights and obligations under government contracts concluded on behalf of the Russian Federation by the federal state unitary enterprise “United Directorate of the Federal Target Program “Development of Sochi as a Mountain Climatic Resort (2 Years)” are transferred to it (p .2 Article 22 of the Law).

It should be taken into account that cases of transfer of the property contribution of the Russian Federation into the ownership of state corporations are not covered by the Federal Law “On the privatization of state and municipal property” (clause 8, clause 2, article 3).

Such a transfer differs from privatization in that the property is provided free of charge, is used for public purposes, and can be returned to federal ownership upon liquidation of the state corporation.

Thus, the transfer of the property contribution of the Russian Federation into the ownership of state corporations should be recognized as a separate method of terminating state property rights, along with a number of such methods to which the privatization legislation does not apply and which are listed in clause 2 of article 3 of the Federal Law “On the privatization of state and municipal property."

Since the transfer of property complexes of federal state unitary enterprises to state corporations is recognized as a special way of terminating unitary enterprises as legal entities, in this case also Article 34 of the Federal Law “On the Privatization of State and Municipal Property” is not subject to application, according to which the transformation of a unitary enterprise into an organization of a different organizational legal form is carried out in accordance with the legislation on privatization.

Disposal of property of state corporations.

The state corporation, as the owner, has the rights to own, use and dispose of its property, as well as, at its discretion, to take any actions in relation to this property that do not contradict the law and other legal acts (Article 209 of the Civil Code of the Russian Federation). The main limitation established by law, as already noted, is the obligation of state corporations to use property only to achieve the goals of their activities.

Federal laws do not establish any other restrictions in comparison with the already mentioned list of sources of formation of property of non-profit organizations contained in clause 1 of Article 26 of the Federal Law “On Non-Profit Organizations”.

Accordingly, state corporations, in accordance with the goals of their activities, have the right to:

Organize the production of goods, performance of work, provision of services;

Purchase and sell shares, bonds and other securities;

Make deposits in credit institutions;

Alien property owned by them;

Rent out property for rent, temporary use and trust management, etc.

In addition, state corporations have the right to participate in business societies and limited partnerships as an investor, create non-profit organizations, as well as join associations and unions, which involves paying membership fees (clauses 2 and 4 of Article 24 of the Federal Law "On non-profit organizations").

In addition, a state corporation can acquire property and act as a customer of works and services to achieve its activities and ensure its own functioning. Moreover, the list of property that may be owned by state corporations is also open (Clause 1, Article 25 of the Federal Law “On Non-Profit Organizations”, Clause 1, Article 213 of the Civil Code of the Russian Federation).

However, these possibilities were not fully taken into account when establishing the procedure for making decisions on the execution of property transactions by state corporations corresponding to these types of activities, which, in essence, boils down to the fact that decisions on this should be made by the supervisory boards (boards of directors) of state corporations, and in some cases - the Government of the Russian Federation.

In this case, there is no uniform approach to legal regulation.

At the same time, the procedure for making such decisions should be one of the main elements of ensuring the intended use of property by state corporations.

In particular, in relation to the activities of the Deposit Insurance Agency, such a procedure is established only in terms of determining the directions, procedure, conditions and maximum amount of placement (investment) of funds from the deposit insurance fund, which are determined annually by the Board of Directors (clause 2 of Article 38 of the Law). Transactions with other property, as well as participation in the creation of non-profit organizations and payment of membership fees to them, are excluded from this procedure.

The same situation arises with the Fund in relation to its temporarily free funds (clause 1 of Article 21 of the Law).

The State Corporation "Rusnanotech" has similar rules covering participation in other organizations, the alienation of property (clauses 9 and 14, clause 1, article 11 of the Law), and the investment of temporarily available funds (clause 3, clause 3, article 6 , clause 2 of article 20 of the Law). However, deposits and transfer of property to other persons on the terms of repayment still occur.

In addition, the use of the concept of “investment” raises the question of which transactions of state corporations fall under the concept of investment (Article 1 of the Federal Law “On investment activity in the Russian Federation, carried out in the form of capital investments”). In particular, making deposits in credit institutions or money in mutual funds, i.e., professional financial intermediaries, is not an investment. Also, they cannot include, for example, the issuance of guarantees.

A similar situation arises in the State Corporation “Rostechnologies” (clause 5, clause 1, article 7, clause 14, clause 1, article 12 of the Law).

In relation to the Olimpstroy Group of Companies, it is additionally provided for the Supervisory Board to make decisions on making contributions (clauses 10, 14, 15 and 16, clause 1, article 12 of the Law). However, other problems still remain.

The Rosatom State Corporation has the same situation as the Rosnanotech State Corporation and the Russian Technologies State Corporation (clauses 14-16, clause 1, article 24 of the Law), with one exception. For the Rosatom State Corporation, the Government of the Russian Federation must approve a list of property, transactions with which are subject to approval by it (clause 3 of Article 17 of the Law).

In addition, Rosatom State Corporation itself is entrusted with control over the execution of transactions by organizations subordinate to it (clause 15, clause 1, article 39 of the Law).

The only exception is Vnesheconombank, for which these issues are regulated more clearly.

Thus, the Supervisory Board of Vnesheconombank makes decisions on the approval of transactions or several interrelated transactions related to the acquisition, alienation or possibility of alienation by Vnesheconombank of property, the book value of which is 10 percent or more of the amount of Vnesheconombank’s own funds (capital) as of the last reporting date preceding the date of adoption decisions on concluding such transactions, and also makes decisions on the creation of legal entities (clauses 6 and 12, clause 1, article 12 of the Law).

The main directions and quantitative restrictions on the investment and financial activities of Vnesheconombank are established in the Memorandum on the financial policy of Vnesheconombank, approved by the Government of the Russian Federation (clause 6 of Article 4 of the Law).

In order to avoid the problems listed above, it is necessary to use a unified system of concepts and unified criteria for identifying transactions to designate transactions of state corporations in the cases listed above.

The meaning of enshrining in law the order according to which decisions on the execution of certain transactions by state corporations are made by their supervisory boards (boards of directors), and in some cases by the Government of the Russian Federation, is that the presence of such decisions should be checked by the other party to the transaction, and their absence will mean the nullity of transactions made by a state corporation (clause 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 01/01/01 No. 9 “On some issues of application of Article 174 of the Civil Code of the Russian Federation when the bodies of legal entities exercise powers to make transactions”).

In addition, state corporations are subject to Article 27 of the Federal Law “On Non-Profit Organizations”, which regulates the procedure for making interested party transactions. When making such transactions, interested parties are recognized as the head (deputy head) of a non-profit organization, as well as a person who is part of the management bodies of a non-profit organization or supervisory authorities over its activities, if these persons are in labor relations with the organizations or citizens with whom the transactions are made , are participants, creditors of these organizations or are in close family relationships with these citizens or are creditors of these citizens.

These transactions must be approved by the governing body of the state corporation. Such a body is the Management Board, since its competence should include the resolution of all issues not directly within the competence of the highest management body of the state corporation. Failure to comply with this rule makes such transactions voidable (Clause 4, Article 27 of the Federal Law “On Non-Profit Organizations”).

Cases of alienation of property by state corporations are also not covered by the Federal Law “On the Privatization of State and Municipal Property”, since in these cases we are talking about the alienation of property owned by state corporations, and not by the state.

Also, in cases where a state corporation, at its own expense, acquires property, acts as a customer of work or services, the Federal Law “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” is not subject to application, since in these cases it is already is not about the use of budget funds.

In terms of the use of funds by state corporations, there is a procedure for making decisions on their use, which is no longer associated with the approval of specific transactions. It lies in the fact that supervisory boards (boards of directors) of state corporations make decisions on the use of their profits, as well as reserves and funds, where they are formed, i.e. on the directions of use of funds (clause 8 of article 21 of the Law , clause 5 clause 1 of Article 12 of the Law, clause 8 and 20 clause 1 of Article 11 of the Law, clause 1 of Article 7 of the Law, clause 8 and 21 clause 1 of Article 12 of the Law, clause /clauses 13 and 15, clause 1, article 12 of the Law, clauses 4, 5 and 10, clause 1, article 24, clause 5, article 20 of the Law).

Procedure for managing state corporations.

Each state corporation has an individual structure of governing bodies and the procedure for their formation.

What they have in common is a three-tier system of controls:

1) the highest governing body – the supervisory board or the board of directors;

Moreover, in the latter case, the state had the choice to assign the right to insure citizens’ deposits either to a state corporation or to transfer this right to commercial insurance organizations.

However, the risks of insuring citizens' deposits at that time were so high that this type of insurance was of no interest to commercial insurance organizations. Therefore, even when creating a functioning deposit insurance system of a non-commercial nature, banks were allowed into it only after checking their financial stability.

In this regard, in relation to deposit insurance, the first option was chosen, but, for example, when creating a system of compulsory civil liability insurance for vehicle owners, when these factors were absent, the second option was chosen.

The result is two examples for comparison.

Currently, the deposit insurance system has long been debugged, it increases the amount of insurance compensation, and raises the question of expanding its scope to individual entrepreneurs and non-profit organizations.

But in relation to the system of civil liability insurance for vehicle owners, the search for the optimal option for interaction between the subjects of insurance relations is still underway. In particular, from March 1, 2008, the next amendments to the Federal Law “On compulsory civil liability insurance of vehicle owners” begin to come into force (introduced by the Federal Law of December 1, 2007 N 306-FZ), significantly changing the procedure for interaction between subjects of this type insurance.

The significant number of legal disputes with insurance organizations regarding the receipt of insurance compensation is also not in favor of the system of civil liability insurance for vehicle owners.

This does not mean that the first option is inherently better. It’s just that in relation to the deposit insurance system, due to the current crisis situation, the state did not have time to debug this system for several years, deal with cases of non-fulfillment of obligations by insurers, which are inevitable in this situation, etc.

The state’s choice in favor of creating a commercial organization in the form of a joint stock company, in addition to the commercial nature of the activity, may be to create the ground for further privatization of shares or development by attracting private investment through additional issue of shares. Such organizations were created by the state in the field of railway transportation and energy.

State and state unitary enterprises, which are commercial organizations, from the point of view of functioning differ from state corporations in the following:

They can be created only in strictly defined areas, as a rule, affecting issues of state security or related to the use of property withdrawn from circulation or of limited circulation (Clause 4, Article 8 of the Federal Law “On State and Municipal Unitary Enterprises”);

More stringent management carried out directly by the state body (Article 20 of the Federal Law “On State and Municipal Unitary Enterprises”);

Greater constraint in the use of property, since their powers to dispose of property of a certain type are either limited by the need to obtain the consent of the owner or are generally prohibited (Articles 18 and 19 of the Federal Law “On State and Municipal Unitary Enterprises”).

Privatization of newly created state unitary enterprises, as a rule, is not expected in the near future. Examples of areas where such enterprises have been created are: air traffic management and shipbuilding.

When choosing from among the organizational and legal forms of non-profit organizations, the following must be taken into account.

Institutions, unlike state corporations, act on the instructions of the owner (clause 1 of Article 296 of the Civil Code of the Russian Federation), alienation of property assigned to them is not allowed (clause 1 of Article 298 of the Civil Code of the Russian Federation), and are liable for their obligations only in cash , in connection with which the owner bears subsidiary liability for these obligations (clause 2 of Article 120 of the Civil Code of the Russian Federation). Accordingly, they are not given the opportunity to take initiative in achieving the goal.

Funds in their legal status are very close to state corporations, but they are established by citizens and (or) legal entities on the basis of voluntary property contributions. It cannot be created by decision of the state without the participation of other entities. It turns out that funds differ from state corporations in that their founders can be individuals and legal entities, while in state corporations - only the Russian Federation.

The issue of ownership is also important.

Thus, the legal status of the Bank of Russia is similar to state corporations.

However, since the Bank of Russia is in charge of, for example, gold and foreign exchange reserves, funds in the accounts of government bodies, etc., its authorized capital and other property are federal property.

Accordingly, the Bank of Russia has a special organizational and legal form, existing in a single copy - the Central Bank of the Russian Federation (Bank of Russia).

This approach fits into the current legislation, since the list of organizational and legal forms of non-profit organizations is open and can be supplemented by federal laws (see paragraph 3 of Article 50 of the Civil Code of the Russian Federation, paragraph 3 of Article 2 of the Federal Law “On Non-Profit Organizations”).

Directions for improving legislation on state corporations.

Based on the above, we can conclude that there is a certain inconsistency between the laws governing the activities of individual state corporations. In particular, this is manifested in the lack of uniform approaches to resolving key issues in the activities of state corporations.

The result is a paradoxical situation from a legal point of view: legal entities of the same organizational and legal form act according to different rules and, conversely, organizations that designate themselves as corporations have nothing to do with state corporations.

In this regard, it is legally necessary, at a minimum:

Prohibit the use of the term “corporation” in the names of organizations that, by their organizational and legal form, are not state corporations;

Prohibit state corporations from producing goods, performing work and providing services, participating in the creation of commercial organizations, as well as alienating and transferring their property for temporary use free of charge;

Introduce quantitative restrictions on the use of income received by state corporations (except for the Deposit Insurance Agency) to ensure their activities;

If a state corporation is vested with power, then a state body must be identified that applies related measures of state legal coercion;

Develop a unified approach to the procedure for approval by the highest management bodies of state corporations of certain transactions, as well as the establishment of quantitative restrictions on the attraction and placement of funds, including through the use of a unified system of concepts and criteria for identifying transactions;

Introduce the mandatory holding of public auctions when concluding transactions higher than the amount specified by law;

Extend the control of the Accounts Chamber of the Russian Federation to all state corporations;

To establish a rule on the automatic termination of the right of representation in the highest management body of a state corporation when a person leaves his position in the body of which he was a representative;

Establish that members of the highest management bodies of state corporations act on a voluntary basis;

Develop and legislate criteria for resolving the issue of the advisability of creating state corporations in certain areas, taking into account the provisions of the Constitution of the Russian Federation.

Until these issues are resolved legislatively, the creation of new state corporations must be stopped.

Associate Professor, Department of Business Law

State University – Higher School of Economics,

Candidate of Legal Sciences.

For more information about this, see “The procedure for resolving conflicts in Russian law.” SPS "Consultant Plus". Section "Legislative Comments".

On the distinction between these contributions and tax payments, see: A. Kurbatov “On insurance of deposits of individuals in banks of the Russian Federation”, “Economy and Law”, 2004, No. 4, p. 29 or “Division of mandatory payments”. Article in the collection “Fiscal fees: legal features and regulation”. Edited by. M., 2003, p. 64.

Today, the most important role in the Russian economy is assigned to state corporations. They serve as the largest employers who ensure the full development of entire industries. Some of the state corporations (Roscosmos, for example) have a position close to a monopoly. That is why they are practically indispensable subjects for the development of the country’s economy. It is advisable to consider the main characteristics, history of appearance and the list of state corporations currently known.

The concept of a state corporation

A state corporation is a non-profit institution whose assets are owned by the Russian Federation. It is created to implement functions that are especially significant for society. Among them, for example, is the fair distribution of financial resources. In practice, the presented function can be expressed in the fact that one of the orders of the state corporation Rosatom, for example, approves the possibility of providing jobs with satisfactory wages. This stimulates the growth of people's purchasing power. Or, for example, the fact that such structures are the largest customers for private businesses. This contributes to the development of entrepreneurship in the country. State corporations are institutions that act as an incentive for monetization and growth of the economy as a whole, and also contribute to the emergence and further expansion of connections at the international level.

State corporations, state-owned enterprises and state-owned companies

Next, it is advisable to consider the similarities and distinctive features of these structures. State-owned companies and state-owned corporations are two types of non-profit institutions. They are similar in some ways, but different in others. It is worth noting that their activities are regulated through the same legal source - the Law “On Non-Profit Organizations”. In accordance with the provisions of this act, a state company should be understood as an NPO that does not have membership, formed on the basis of property investments for the provision of public services and the implementation of other functions, subject to the involvement of state property complexes in the form of management on a trust basis. The State ATM Corporation is also an NPO that does not have a membership, formed on the basis of a property contribution, however, to achieve goals that are significant for society and to perform socially important functions, as noted above. Both types of government institutions are created on the basis of the issuance of federal laws.

It is worth keeping in mind that state corporations have even more pronounced differences. The former are endowed with the status of subjects that are established by the country's power system. And state-owned enterprises do not have to be established by the state, but they own the largest part of state shares. You need to know that even private individuals can act as co-owners of state-owned enterprises.

The differences between state-owned enterprises and corporations are quite difficult to trace regarding organizational and legal forms. The reason is that state corporations are the same economic societies as state-owned enterprises. They can be open or closed. Some lawyers believe that it is correct to classify state corporations as a number of organizations. For example, to the Federal State Unitary Enterprise of the State ATM Corporation. State-owned enterprises can only exist as business entities. This means that the unitary form is absolutely not characteristic of them. Today there are experts who distinguish between the concepts of federal state unitary enterprises and state corporations. This is due to the fact that the latter are almost completely uncontrolled and do not report to government agencies. The only exception may be the need to periodically provide some information regarding the activities being implemented to the Government of the country. State structures have much more powers regarding the management of FSUE branches. This does not apply to state ATM corporations.

Today it is widely believed that a state corporation can be represented in absolutely any organizational form. Examples of state-owned enterprises are structures such as Russian Railways, Rosneft or Rostelecom. Examples of unitary-type enterprises are Mosgortrans, Russian Post and the TASS agency. State corporations, state-owned companies and state-owned enterprises need to be distinguished at least based on their mechanism of establishment. It, in turn, is predetermined by the peculiarities of the legal regulation of the relevant structures.

Legal regulation of the activities of state corporations

Next, we will study the legal aspect of the work of state corporations in ATM. State corporations belong to the branch of civil law. In other words, in transactions and legal relations of a different nature, they play the role of subjects who are legally equal to their partners. Nevertheless, the legal status of such structures is endowed with a number of features. Thus, state corporations on the territory of the Russian Federation are established on the basis of a published federal law. The main aspect of the activities of the relevant structures is that they are not obliged to bear responsibility for the obligations of the Russian Federation that may arise. And vice versa, the state is in no way responsible for the activities of state corporations (Aeronavigation, Rostec, Rosatom, and so on). An exception may be scenarios in which certain types of mutual liability are described in law.

What privileges do state corporations have?

Another notable aspect of the activities of branches of state corporations in the field of air traffic management is the exclusion of the application of legislative provisions that regulate bankruptcy. In addition, institutions have some privileges in terms of reporting: they do not have to disclose information regarding activities in the same way as economic societies are required to do; they have no obligation to submit reports to government bodies, with the exception of a number of government agencies; state corporations have the right to conduct competitions within the framework of the public procurement mechanism based on the rules that they independently establish. These rules do not have to coincide with the standards approved in the legislation regarding public procurement.

It is important to pay attention to how the bodies that manage state corporations are created. As a rule, a corresponding order of state corporations is issued, which stipulates that the head is a manager who acts according to the standards determined by a separate legislative act. Thus, in accordance with the provisions of a number of legal acts, most often the heads of state corporations are appointed directly by the President of the Russian Federation.

History of origin

State corporations, being subjects of civil law, began to appear after certain adjustments were made on 07/08/1999 to the Law that regulates the work of non-profit organizations. Thus, a basis emerged for legalizing the activities of these structures. It is believed that the first state corporation on the territory of the Russian Federation was an agency called ARCO. It was engaged in the reconstruction of banking-type institutions. The structure was registered in 1999. Nevertheless, after the establishment of the represented agency, state corporations did not immediately become a popular organizational and legal form of business in Russia, subject to the participation of the state. Since 2007, the popularity of these institutions has begun to gain momentum.

List of state corporations

The list of state corporations founded on the territory of the Russian Federation today is not very large. However, it is closed. In accordance with the tasks that individual government structures and the state as a whole set for themselves, new organizations of the type under consideration can be formed, as well as existing ones can be abolished. The largest state corporations currently include the following structures:

• State Corporation "Rosatom".
• State Corporation "Vnesheconombank".
• State Corporation "Rosnato".
• State Corporation "Rostec".
• State Corporation DIA.

It should be noted that the state corporation Olympstroy was responsible for the construction of Olympic facilities in Sochi. In addition, the Housing and Communal Services Fund is a significant state corporation in terms of the scale of its activities.

Prospects for State Corporations

What are the prospects for the further development of state corporations? There are different opinions and points of view here. Over the past 2-3 years, more and more notifications have appeared that the form of enterprise activity in question will soon be abolished. In particular, one concept regarding the improvement of the current legislation that regulates the activities of legal entities on the territory of Russia included provisions on the need to transform state corporations into other organizational and legal forms of institutions. At the same time, the current privileges that state corporations have today must be cancelled.

Despite such relative plans, today state corporations successfully fulfill their functions (state corporations Rosatom, Russian Technologies, Housing and Communal Services are currently developing increasingly large-scale activities). True, their work is under serious control by government agencies. The reason is the desire of the Government of the country to increase the efficiency of the activities of the structures in question. In particular, there is a fairly active adjustment of the current remuneration systems for employees of state-owned enterprises. There are, for example, proposals regarding linking compensation payments to employees of relevant institutions to the actual results of work. There are initiatives according to which the powers of employees of state corporations are planned to be brought closer to those characterizing the activities of civil servants. By analogy, there is an idea about the need to impose additional restrictions on specialists of state-owned companies, especially those related to the ability to conduct commercial activities.

Industry features of the development of state corporations

Today there are theses that the work of state corporations should be regulated in accordance with the specifics of a certain segment of their activity. Thus, financial state corporations are compatible to a greater extent with legal provisions that strictly regulate their activities. Innovative public corporations will likely not need such stringent regulation. By analogy, the sectoral approach can be adapted to the work of other institutions. As a result, state corporations remain relevant in terms of a popular form of activity and, according to analysts, have good prospects for development.

Features of foreign state corporations

After a full study of the characteristics of the activities of state corporations of the Russian Federation, it is advisable to move on to considering the specifics of the work of the corresponding types of enterprises abroad. Naturally, the presence of institutions of the type under consideration is presupposed not only by our political system. State corporations operate in almost all countries of the world. For example, in the USA, one of the largest structures is Amtrak. This company provides services in the field of railway transportation. It was established back in 1971, much earlier than state corporations appeared in Russia. It is interesting that American and Russian institutions of this type are somewhat similar in such an aspect as formation: state corporations in both countries are created on the basis of regulations that have been adopted. Thus, Amtrak was established by an act of the US Congress.

Another largest US government corporation is OPIC. This structure invests in foreign projects. It was created back in 1971, just like Amtrak. Many experts consider it an agency reporting to the US government. It is in this aspect that the distinctive features of Russian organizations of the corresponding plan from American ones are clearly visible.

Summary

So, we have studied the essence and features of the term “state corporations”. In addition, relevant examples and their characteristics were studied both on the territory of the Russian Federation and in foreign countries. What conclusions can be drawn from this? To begin with, you should understand that a state enterprise and a state corporation are completely different things. Close in meaning to state-owned corporations is the term “state-owned companies”. In particular, regulation of both types of organizations is carried out through the provisions of the same legislative act.

However, it is worth keeping in mind that all three of the concepts explored today are often synonymous. Of course, from a legal perspective this is not entirely correct, but in general synonymy is acceptable due to the fact that the terms presented are actually very close in meaning. State corporations in Russia, the list of which undergoes regular adjustments, in accordance with the dynamics and priorities of lawmaking of state structures, are, despite the provisions regarding the possibility of abolishing the type of legal entities in question, a rather promising form of activity. The successful development of state corporations on the territory of the Russian Federation depends on the quality of the current legislation regulating this issue, especially in the field of determining performance criteria.

The phenomenon of Russian state corporations lies in the search for means of implementing the idea of ​​public-private partnership. One of the target areas for the creation of state corporations is the solution of systemic strategic socio-economic problems of national and public importance, the solution of which requires huge capital, exceptional organizational efforts, significant time frames and administrative powers. In addition, solving these problems assigned to state corporations does not have a quick commercial return. At the same time, it is characteristic of currently existing state corporations that, based on the goals of creation and the specifics of their activities, they differ not only from other commercial and non-profit organizations, but also from each other, they have different procedures for management, reorganization and liquidation, use of property and reporting forms.

The emergence of a new organizational and legal form of a legal entity - a state corporation - is associated not only with the need to create an optimal model for managing state property, but also with the development of the country's economy as a whole as a high-tech, innovative, progressive, knowledge-intensive system.

Currently, the features of the legal status of state corporations, the goals of their activities, the procedure for management, appointment of officials, use of property, powers, functions and other issues relating to the creation and organization of activities and responsibilities of state corporations are regulated separately by federal laws adopted specifically for these purposes.

Laws on public corporations:

• Federal Law of December 1, 2007 N 317-FZ “On the State Atomic Energy Corporation Rosatom”;
• Federal Law of November 23, 2007 N 270-FZ “On the State Corporation “Russian Technologies”
• Federal Law of October 30, 2007 N 238-FZ “On the State Corporation for the Construction of Olympic Facilities and the Development of the City of Sochi as a Mountain Climatic Resort” (Olympstroy State Corporation);
• Federal Law of July 21, 2007 N 185-FZ “On the Fund for Assistance to the Reform of Housing and Communal Services”;
• Federal Law of July 19, 2007 N 139-FZ “On the Russian Nanotechnology Corporation”;
• Federal Law of May 17, 2007 N 82-FZ “On the Development Bank” (Bank for Development and Foreign Economic Affairs (Vnesheconombank));
• Federal Law of December 23, 2003 N 177-FZ “On insurance of deposits of individuals in banks of the Russian Federation” (Deposit Insurance Agency);
• Federal Law of July 17, 2009 N 145-FZ “On the State Company “Russian Highways” and on amendments to certain legislative acts of the Russian Federation”;
• Federal Law of September 28, 2010 No. 244-FZ “On the Skolkovo Innovation Center.”
• The activities of state corporations are also regulated by normative legal acts of the President of the Russian Federation and the Government of the Russian Federation adopted in accordance with the above laws.

General issues relating to property, obligations, and liability of state corporations are regulated by Chapter II of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations” (Article 7.1). This law defines the concept of a state corporation, which is understood as a non-profit organization that does not have membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions.

The law also provides that property transferred to a state corporation by the Russian Federation is the property of the state corporation. The state corporation is not liable for the obligations of the Russian Federation, and the Russian Federation is not responsible for the obligations of the state corporation, unless otherwise provided by the law providing for the creation of the state corporation.

The Law on Non-Profit Organizations establishes restrictions on the use of state corporation property: a state corporation has the right to use its property exclusively for the purposes specified by the law providing for its creation.

A state corporation can carry out entrepreneurial activities only insofar as it serves to achieve the goals for which it was created and is consistent with these goals.

The state corporation is obliged to annually publish reports on the use of its property. Annual financial statements are subject to a mandatory audit conducted by an audit organization selected based on the results of an open competition. The annual report is published and posted on the official website of the state corporation, taking into account the requirements of the legislation on state secrets. The strategy of the state corporation’s activities should also be posted on the official website of state corporations. The annual report published and posted on the Internet must contain information on the implementation of this strategy for the activities of the state corporation.

The law provides for the possibility of investing the free funds of state corporations on the principles of repayment, profitability and liquidity of the assets acquired by it (investment objects). At the same time, the procedure and conditions for investing temporarily free funds of state corporations, as well as the forms of investment reports and the procedure for disclosing these reports, are established by the Government of the Russian Federation. The maximum amount of available funds to be invested and the procedure for making decisions on investment are determined by the supreme governing body of state corporations, which is provided for by a special law on a specific state corporation. Thus, the Law on Rosatom provides that the highest management body of this state corporation is the supervisory board, which includes representatives of the President of the Russian Federation and the Government of the Russian Federation. The general director of a state corporation is appointed and dismissed by the President of the Russian Federation on the proposal of the Chairman of the Government of the Russian Federation.

The Accounts Chamber exercises control over the activities of state corporations. Special laws on state corporations provide that state corporations are not subject to the federal law “On Insolvency (Bankruptcy).”

From an analysis of the current legislation, it is clear that a state corporation is understood as a special type of legal entity that accumulates certain property transferred to it by the state for use for its intended purposes. The state corporation acts as a cash management body that has a strictly targeted focus. In addition, when carrying out economic activities, a state corporation is authorized to increase the amount of funds transferred to it by the state through the effective placement of fund assets. Regulation of the activities of state corporations is carried out through its highest governing body - the supervisory board, which makes all key decisions and includes representatives of the President of the Russian Federation and the Government of the Russian Federation.

Thus, a state corporation is endowed with a special status, located at the intersection of public and private law, since it is created by the state in an administrative manner, formalized by a special law, is a bearer of rights and obligations of a public nature, is endowed with authority, as a result of which it acts as a bearer of state will and state rights and responsibilities. A state corporation has separate property for solving public problems and realizing public interests, bears public legal responsibility, has special target legal capacity and assumes a primary focus on the implementation of public, national interests; the tasks of state corporations are enshrined at the legislative level.

However, today there is no consolidation of the special status of a state corporation, which has the characteristics of a public legal entity, in the legislation of the Russian Federation.

Thus, at the moment there is a need to reform the legislation on state corporations. The adoption of the law on state corporations alone will not allow their independent status to be fully consolidated in law. In the case of legislative registration of this type of legal entity, state corporations should be removed from the composition of non-profit organizations, since their main functions do not coincide with their main criteria.

At the same time, at present, in law-making activities, there are trends towards the development of civil legislation in the Russian Federation, and some legislative initiatives have been proposed. Thus, the Council under the President of the Russian Federation for the codification and improvement of civil legislation on the basis and in pursuance of Decree of the President of the Russian Federation dated July 18, 2008 No. 1108 “On improving the Civil Code of the Russian Federation” prepared and published a draft amendment to the Civil Code of the Russian Federation (the draft was reviewed State Duma in the first reading). This draft proposes to establish a closed list of organizational and legal forms of non-profit organizations, maintains the division of legal entities into commercial and non-profit, and also introduces a new division into corporate and unitary organizations. Legal entities whose founders have the right to participate in the management of their activities are corporate organizations (corporations). These include business partnerships and societies, production and consumer cooperatives, public organizations of citizens, associations and unions. Legal entities whose founders do not become participants and do not acquire membership rights in them are unitary organizations. These include state and municipal unitary enterprises, foundations, institutions, as well as religious organizations. Thus, participants in corporations, unlike participants in unitary organizations, have the right to participate in the management of the organization’s activities (the right of membership). Moreover, the division into commercial and non-profit for corporations will remain, and unitary organizations will exist only in the form of non-profit legal entities. Non-profit organizations are proposed to be given the name “Non-profit corporate organizations” and “Non-profit unitary organizations”, the first of which is supposed to include consumer cooperatives, public organizations of citizens, associations and unions (with detailed regulation of their status), and the second - foundations, institutions and religious organizations.

The draft amendments to the Civil Code of the Russian Federation abolish additional liability companies (ALS). Instead of an open joint-stock company (OJSC) and a closed joint-stock company (CJSC), the following are proposed: a joint-stock company and a public joint-stock company. According to the proposed amendments to Article 97 of the Civil Code of the Russian Federation, a joint stock company will be recognized as public if its shares and securities convertible into its shares are publicly placed (by open subscription) and publicly traded on the terms provided for by the securities law. There are special requirements for the creation and operation of such companies (to the size of the authorized capital, maintaining a register of shareholders, etc.).

It is proposed to replace the Laws “On Limited Liability Companies” and “On Joint-Stock Companies” with the Law “On Business Companies”.

At the same time, as we see, the establishment of the institution of state corporations is not envisaged in the new draft of the Civil Code of the Russian Federation. In the closed list of non-profit organizations provided for by the Draft Amendments to the Civil Code of the Russian Federation, a state corporation as one of the forms of non-profit legal entities is absent.

Thus, today there are two directly opposite trends: on the one hand, the Council under the President of the Russian Federation has developed a “Concept for the development of civil legislation”, which states the need to analyze and correct such organizational and legal forms of legal entities as “state corporation” and “state company” . However, in the Draft Amendments to the Civil Code of the Russian Federation, sent by the Council under the President of the Russian Federation for the codification and improvement of civil legislation to the State Duma for discussion, this type of legal entity is not fixed. Legal entities with a special status, such as Rosatom, Russian Technologies, Olympstroy, Skolkovo Foundation, etc., still remain outside the regulation of civil legislation, since the developers of the draft amendments to the Civil Code of the Russian Federation ignored This type of legal entity has a special status. At the same time, state corporations are regulated by separate laws adopted solely for the purpose of securing the special status of these legal entities.

Consequently, the previous procedure for legislatively consolidating the unique status of state corporations in laws specifically adopted for these purposes remains. Since in the final version of the draft legislation changes in the Russian Federation there was no place to explain the special legal status of state corporations. Currently in the Russian Federation there is a need to officially consolidate the status of state corporations in legislation at the level of the Civil Code of the Russian Federation and the adoption of the federal law “On State Corporations”: today state corporations exist in the Russian Federation “de facto” in the form of special forms of legal entities, they operate on the basis of separate federal laws in the form of funds, innovation centers, corporations, etc. However, they are unlikely to be abolished in the near future or transformed into more traditional organizational and legal forms for civil legislation. These forms of legal entities do not fit into any of the existing forms of commercial or non-profit organizations provided for by the Civil Code of the Russian Federation.

APPROVED
decision of the Government Commission
on high technologies and innovations
dated August 3, 2010, protocol No. 4

TRANSPARENCY
joint stock companies with state participation, state corporations, federal
state unitary enterprises developing innovative development programs

Group 1- companies in respect of which monitoring of the development and implementation of innovative development programs is carried out by the Government Commission on High Technologies and Innovations

Group 2- companies in respect of which monitoring of the development and implementation of innovative development programs is carried out by federal executive authorities

Public corporations are created to perform various functions; the activities of each are regulated by a separate federal law, which defines the goals of the corporation, the general principles of the management structure, the specifics of property management, and the specifics of public reporting and auditing. At the same time, there is no liability for state corporations’ failure to post information required by law.

State Corporation "Deposit Insurance Agency"

Year of creation: 2004.

Base: Federal Law of December 23, 2003 No. 177-FZ “On insurance of deposits of individuals in banks of the Russian Federation.”

Target: ensuring the functioning of the deposit insurance system, as well as performing the functions of a bankruptcy trustee (liquidator) in the event of bankruptcy of credit institutions.

Controls: board of directors, management and general director. The highest governing body is the board of directors.

Number of staff:

CEO:
Isaev Yuri Olegovich

State Corporation "Bank for Development and Foreign Economic Affairs (Vnesheconombank)"

Year of creation: 2007.

Base: Federal Law of May 17, 2007 No. 82-FZ “On the Development Bank”.

Target: ensuring increased competitiveness of the economy of the Russian Federation, its diversification, stimulation of investment activity by carrying out investment, foreign economic, insurance, consulting and other activities provided for by law for the implementation of projects in the Russian Federation and abroad, including with the participation of foreign capital, aimed at developing infrastructure, innovation, special economic zones, environmental protection, to support the export of Russian goods, works and services, as well as to support small and medium-sized businesses.

Controls: supervisory board, board and chairman. The highest governing body is the supervisory board, headed by the Chairman of the Government of the Russian Federation.

Chairman:
Gorkov Sergey Nikolaevich

State Corporation - Fund for Assistance to Reform of Housing and Communal Services (Housing and Communal Services Fund)

Year of creation: 2007.

Base: Federal Law of July 21, 2007 No. 185-FZ “On the Fund for Assistance to the Reform of Housing and Communal Services.” The state corporation was supposed to cease operations on January 1, 2013, but the completion date was repeatedly postponed. In October 2017, the State Duma once again extended the terms of the Fund’s activities until January 1, 2019.

Target: creating safe and favorable living conditions for citizens and stimulating the reform of housing and communal services, the formation of effective mechanisms for managing the housing stock, the introduction of resource-saving technologies by providing financial support from the Fund, carrying out outreach and other activities aimed at educating citizens in the field of housing and public utilities, assistance in training personnel in the field of housing and communal services.

Controls: supervisory board, board, general director.

Number of staff: as of 01/01/2017 - 257 people.

CEO:
Tsitsin Konstantin Georgievich

State Corporation for Promoting the Development, Production and Export of High-Tech Industrial Products "Rostec"

Year of creation: 2007.

Base: Federal Law of November 23, 2007 No. 270-FZ “On the State Corporation “Russian Technologies””.

Target: promoting the development, production and export of high-tech industrial products by providing support in the domestic and foreign markets for Russian organizations - developers and manufacturers of high-tech industrial products, organizations in which the corporation due to a predominant participation in their authorized capital, or in accordance with agreements concluded between them, or otherwise has the opportunity to influence the decisions made by these organizations by attracting investments in organizations of various industries, including the military-industrial complex, as well as participation in social and other socially significant projects in the interests of the state and society in accordance with federal laws and decisions of the President Russian Federation.

Controls: supervisory board, management board and general director. The highest governing body is the supervisory board.

Number of staff: as of December 31, 2016 - 1,037 people.

CEO:
Chemezov Sergey Viktorovich

State Atomic Energy Corporation "Rosatom"

Year of creation: 2007.

Base: Federal Law of December 1, 2007 No. 317-FZ “On the State Atomic Energy Corporation Rosatom.”

Target: implementation of state policy, implementation of legal regulation, provision of public services and management of state property in the field of the use of atomic energy, development and safe operation of organizations of the nuclear energy-industrial and nuclear weapons complexes of the Russian Federation, organizations operating vessels of the nuclear icebreaker fleet (nuclear technological service vessels , as well as ships with nuclear power plants - nuclear icebreakers and transport ships), ensuring nuclear and radiation safety, non-proliferation of nuclear materials and technologies, development of nuclear science, technology and professional education, implementation of international cooperation in this area; carrying out state policy in the field of development of the nuclear industry, fulfilling the tasks of the state weapons program and state defense order.

Controls: supervisory board, general director and management board. The highest governing body is the supervisory board.

Number of staff:

CEO:
Likhachev Alexey Evgenievich

State Corporation for Space Activities "Roscosmos"

Year of creation: 2015.

Base: Federal Law of July 13, 2015 N 215-FZ “On the State Corporation for Space Activities “Roscosmos””.

Target: implementation of state policy and implementation of legal regulation in the field of space activities; provision of public services in the field of space activities and state property management; ensuring that the Corporation's organizations and organizations of the rocket and space industry carry out work on the creation of rocket and space technology for military, dual, scientific and socio-economic purposes, and military rocket technology for strategic purposes; coordination of work on the maintenance, development and use of the global navigation satellite system GLONASS in the interests of special, civil, including commercial, consumers and to expand international cooperation of the Russian Federation in the field of satellite navigation systems; implementation of international activities in the exploration and use of outer space; carrying out functions for the general coordination of work carried out at the Baikonur Cosmodrome and the Vostochny Cosmodrome, and for the management of these works.

Controls: supervisory board, general director and management board. The highest governing body is the supervisory board.

Number of staff: 249.94 thousand people (including subordinate organizations).

CEO:
Komarov Igor Anatolievich

Restrictions, prohibitions and obligations

Employees of state corporations are subject to special restrictions and responsibilities similar to the prohibitions and restrictions for government employees.

Federal Law No. 44-FZ establishes a limited list of procurement methods (10 competitive methods and the possibility of purchasing from a single supplier on the grounds specified in the law), and Federal Law No. 223-FZ allows the customer, in its procurement regulations, to independently determine the types of procurement, choose platforms for electronic trading, etc. State and municipal authorities, state and municipal budgetary institutions, state and municipal unitary enterprises operate under No. 44-FZ (except for purchases through grants, own funds, and within subcontracts). With the timely approval of procurement provisions under Law No. 223-FZ, state-owned companies with a participation share of more than 50%, their subsidiaries, natural monopolies, budgetary institutions and state and municipal enterprises operate, in the case of procurement through grants, own funds and subcontracting .

State corporations Rosatom and Roscosmos purchase mainly under No. 44-FZ, and other corporations use the law only to purchase annual audit services, which according to the law are carried out on a competitive basis.

More flexible No. 223-FZ allows state corporations to independently determine procurement methods. On the other hand, No. 44-FZ imposes an obligation on customers to publish all procurement documentation, seriously limiting the use of non-competitive procurement methods.

In 2014, Sergei Kiriyenko, who held the position of General Director of Rosatom, said that the state corporation was the first and on its own initiative to switch to No. 44-FZ. According to him, stricter procurement conditions allowed them to save 35 billion rubles.

At the time of publication of this study, all public corporations had already posted their procurement regulations in the Unified Information System:

Deposit Insurance Agency - last changes made 12/09/2016

Vnesheconombank - last changes made 03/02/2017

Housing and Communal Services Fund - last changes made 03/13/2017

Rostec - last changes made 03/31/2017

Rosatom - last changes made 04/04/2017

Roscosmos - last changes made 06/26/2017

The Roscosmos Corporation violated the deadlines for publishing in the Unified Information System changes made to the Procurement Regulations. In accordance with No. 223-FZ, the regulation and changes to it must be published no later than fifteen days from the date of approval. Roscosmos published the changes approved on June 26, 2017 only on July 14, 20 days later.

For this offense, administrative liability is provided in the form of a fine for officials in the amount of 5-10 thousand rubles, for legal entities - from 10 to 30 thousand rubles.

Conflict of interest in procurement

In 2013, the first deputy general director of the Rostec state corporation, Vladimir Artyakov, was elected chairman of the board of directors of JSC Concern Sozvezdie, which is part of the state corporation (he currently does not hold this position).

Since 2015, Vladimir Artyakov’s wife Tatyana has owned 42.5% of AFK-Service LLC, which owns a business center in Moscow.

Business center building at the address: Spiridonovka, 20, building 2

At the end of 2016, Sozvezdie Concern JSC entered into a contract with AFK-Service LLC for the rental of premises in the specified business center. The contract in the amount of 1,423,125 rubles was concluded with a single supplier within the framework of Federal Law No. 223-FZ, which does not prohibit conflicts of interest.

In our opinion, in this situation one can discern signs of a conflict of interest, which, however, does not contradict the current legislation.

The Ministry of Finance of the Russian Federation has prepared amendments to Law No. 223-FZ that provide for a ban on participation in procurement by legal entities and individuals who have a conflict of interest with the customer. The proposed amendments, in fact, repeat the definition of conflict of interest contained in Federal Law No. 44-FZ: the restriction will not apply to the management of legal entities that own legal entities that are customers.

A significant part of medicines and medical products, the purchase of which is carried out by the federal government authorities of the Russian Federation (JSC National Immunobiological Company).

The corresponding orders were adopted in accordance with paragraph 2 of part 1 of Article 93 of Federal Law 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

Having studied the government contracts of JSC Nacimbio, JSC Russian Electronics, JSC RT-Project Technologies with government authorities, on the one hand, and the documentation of these JSCs on the purchase of similar goods, works and services from suppliers, we found that all three companies act only as intermediaries, retaining up to 10% of the cost of government contracts, although they have the status of sole suppliers.

In turn, RT-Project Technologies JSC entered into agreements to perform the same work with private companies - Lanit Technologies LLC and Onlanta LLC, connected to each other through the owners. Contracts were also concluded with a single supplier. Previously, both companies entered into contracts for similar work directly with institutions subordinate to the Russian Treasury.

The average difference in the cost of a government contract and a similar contract with a subcontractor was 6%.

JSC "Nacimbio"

How the state monopoly Nacimbio made money on vaccines and who benefited from it.

The government has appointed a subsidiary of the state corporation Rostec as the sole supplier of vaccines for the National Calendar of Preventive Vaccinations.

The reliability of information about income, property and property-related obligations of employees of state corporations is not sufficiently controlled. There is no consistency in the issue of determining the circle of persons whose information on income, property and property-related obligations is subject to publication: in different corporations, the corresponding lists are published on official websites in different places, they are very different and are constantly changing. The lack of response from state corporations to the violations we identified suggests that their management may not be interested in complying with anti-corruption legislation.

Only two state corporations, Rosatom and Roscosmos, actively use Federal Law No. 44-FZ and achieve significant cost savings. We consider it appropriate at the legislative level to provide for the obligation to carry out a number of purchases under Law No. 44-FZ, for example, to conduct large purchases in this way and/or establish a share of competitive purchases from small and medium-sized businesses.

Thanks to the orders of the Government of the Russian Federation, a number of enterprises of the state corporation Rostec received a monopoly on the provision of certain types of services for government needs. Moreover, they provide services not independently, but through contractors. Such intermediary schemes lead to reduced competition and additional budget costs.

In this regard, we propose to supplement some regulations governing the activities of state corporations.

To supplement the Code of Administrative Offenses with an article on liability for violation of the duties of state corporations to prepare and post on the Internet the reporting of state corporations provided for by law. Liability must be provided for officials and legal entities, as provided for in relation to state bodies and local self-government bodies (Article 13.28 of the Administrative Code), self-regulatory organizations (Article 14.52 of the Administrative Code), organizations operating in financial markets (Article 15.19 of the Administrative Code) . Introduce administrative liability for non-publication of reports by state corporations.

Amend the Decree of the Government of the Russian Federation of August 21, 2012 No. 841 “On compliance by employees of state corporations and state companies with the provisions of Article 349.1 of the Labor Code of the Russian Federation” on establishing uniform criteria or assigning to a single state body the responsibility for approving lists of positions in state corporations, when replacing them, employees are subject to the obligation to provide information about their income, expenses, property and property obligations, as well as about the income, expenses, property and property obligations of their spouse and minor children, and are also subject to the prohibitions provided for paragraphs 1-4 and 7-11 of part four of Article 349.1 of the Labor Code of the Russian Federation. Oblige state corporations to introduce a unified list of positions, when filling which employees are subject to the obligation to provide information on their income, expenses, property and property-related liabilities, as well as on income, expenses, property and property-related liabilities of their spouse and minor children , and certain prohibitions apply.

Amend Art. 3 of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities” on the ban on participation in procurement by legal entities and individuals who have a conflict of interest with the customer. Introduce a ban on participation in government procurement by state corporations for persons who are affiliated with the customer. The corresponding project has currently been developed by the Ministry of Finance of the Russian Federation. It is necessary to include in the list of potential participants the conflict of interests of managers of legal entities that own other legal entities that are customers.

Introduce changes to the federal laws on state corporations in terms of establishing the share of purchases carried out in accordance with the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.” We also consider it advisable to amend the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, extending its effect to large purchases of state corporations.

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