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Legal Studies
Reference:

Civil legal personality of Local Self-government bodies

Dondokov Zhargal Darmaevich

Postgraduate student of the Department of Civil Law of the Ural State Law University named after V.F. Yakovlev

620137, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21

dondokovzhargal@mail.ru
Other publications by this author
 

 

DOI:

10.25136/2409-7136.2022.6.38292

EDN:

HMCIEG

Received:

19-06-2022


Published:

02-07-2022


Abstract: The article is aimed at revealing the problem of participation of local self–government bodies with the legal status of legal entities - institutions in civil legal relations, as well as at identifying ways to resolve it. At the practical level, the problem is expressed in the uncertainty in which cases local self-government bodies act in civil circulation on their own behalf, and in which cases on behalf of the entire municipality. Certain gaps in civil legislation today allow municipalities to create legal entities not only to establish the legal status of their bodies, but even to separate divisions of such a body. At the theoretical level, the problem is expressed in the choice of the optimal and most effective model of participation of the municipality through its bodies in civil legal relations and management of municipal property. Applying the formal legal method from the standpoint of a dialectical approach, the author examines the raised problem from the point of view of the applicability of the institution's design to local self-government bodies. As a result of his reflections, he comes to the conclusion that local self-government bodies are an integral part of a municipality, and therefore cannot be separated from it by putting on the mask of a legal entity. To do this, the author proposes to amend the civil legislation in terms of limiting the spheres of establishment of institutions to the social and cultural sphere, excluding the sphere of management from Article 123.22 of the Civil Code of the Russian Federation.


Keywords:

local government body, authority, legal personality, municipality, legal entity, subject of law, institution, public law, private law, management

This article is automatically translated. You can find original text of the article here.

With the transition of the Russian economic system to a new model of functioning and the formation of a free market, the beginning of the XXI century for the Russian Federation is simultaneously marked by a new legal formalization of these processes. The most obvious solution aimed at the "privatization" of public material goods was the equalization of all subjects of civil law. Thus, in accordance with Article 124 of the Civil Code of the Russian Federation, the Russian Federation, its subjects, as well as urban, rural settlements and other municipalities act in relations regulated by civil legislation on an equal footing with other participants in these relations – citizens and legal entities. Such equality, of course, is formal, correlated with the principles of civil law.  

It is public legal entities, which in their essence constitute a system of bodies and organizations exercising public authority aimed at performing socially significant functions, that are subjects of civil law. Article 125 of the Civil Code of the Russian Federation, specifying this provision, establishes that, on behalf of municipalities, local self-government bodies can acquire and exercise their rights and obligations by their actions within their competence established by acts defining the status of these bodies. In some cases, the latter may be clothed in the body of a legal entity, thereby becoming independent subjects of law along with a municipal entity. However, is this consistent with the fundamentals of civil law in the conditions of free circulation? Let's try to figure this out by starting our research with the question of what actually applies to local governments.

According to Article 34 of Federal Law No. 131-FZ dated 06.10.2003 "On the General Principles of the Organization of Local Self-Government in the Russian Federation", the structure of local self-government bodies consists of the representative body of the municipality, the head of the municipality, the local administration (executive and administrative body), the control and accounting body, other bodies and elected officials of local self-government, provided for by the charter of the municipality and having their own powers to resolve issues of local importance. The rights of a legal entity are recognized for these bodies. Thus, in accordance with part 2 of Article 41 of this law, local self-government bodies that are endowed with the rights of a legal entity are municipal state institutions formed for the exercise of managerial functions and are subject to state registration as legal entities in accordance with federal law. On the one hand, the legislator, dividing the categories of "granting rights to a legal entity" and "legal entity", on the other hand, actually identifies them, at least within the framework of the analyzed norms. Thus, from the point of view of the fundamentals of legal technology, these norms are mutually absorbing (idem per idem), since legal entities cannot be endowed with the rights of a legal entity, they already have them due to their legal status.  

So, local self-government bodies, which are recognized as such by law or by the charter, are legal entities in the organizational and legal form of a state institution. This, I think, is the basis for the conclusion about their dual legal nature, as some authors prove. For example, Artemov V. sees a dual legal nature in the fact that a local self-government body is both a subject of power relations and an equal participant in civil turnover, which apparently determines the specifics of its legal status as a legal entity [1, p. 32]. Kondrashov Yu.V. asserts that local self-government bodies are characterized by a dualism of legal nature, which consists of two main modes. The first of them consists in the fact that a local self–government body, when acting in civil circulation on behalf of and in the interests of the entire municipality, is considered as an integral part of it, while the second mode consists in considering a local self-government body as an independent subject of civil legal relations - a legal entity [2, pp. 26-27].

The value of these arguments lies not in the special dual nature of local self–government bodies, but in their pragmatic side - the influence of such dualism on their participation in civil turnover. Despite the fact that within civil legal relations, local self–government bodies act as equal subjects - legal entities, and do not exercise their public authority, nevertheless, such "publicity" dictates the need for special rules with such participation: a competitive procurement system for goods, works and services, special rules for the validity of transactions, the impossibility of bankruptcy, etc.

Unlike the legal regulation of state bodies – budgetary institutions, the regulation of local self–government bodies - state institutions, is not based on the desire to limit the civil liability of a municipality for the actions of its bodies. The fact is that formally the founder retains subsidiary responsibility for the debts of the institution [3, p. 134]. In accordance with paragraph 4 of Article 123.22 of the Civil Code of the Russian Federation, a state institution is liable for its obligations with the funds at its disposal. And only if the funds are insufficient, the owner of his property bears subsidiary responsibility for the obligations of the state institution. Despite the preservation of responsibility for the municipality, this provision entails many other practical problems. One of them is the uncertainty in which cases a public authority acts on its own behalf and in its own interests as an independent legal entity, and in which cases on behalf and in the interests of the entire municipality. This problem, which arose most acutely during the formation of civil legislation, was described by E.A. Sukhanov [4, p. 291]. Indeed, recognition of the status of a legal entity by a local self-government body means its personification, and therefore recognition of all the rights of a legal entity, including the right to enter into civil legal relations on its own behalf and in its own interests. Considering the authority from the position of its dual nature does not solve the problem, since it does not give us criteria for differentiation. Thus, the problem moves to the level of law enforcement and becomes casual, its resolution depends on the specific circumstances of the case. And how can one case become a right in the continental legal system?   

It is assumed that the answer to the question posed at the beginning of this study consists in a much deeper aspect of the participation of public legal entities in civil legal relations, as well as in the choice of a public property management model. In other words, is it mandatory to grant authorities the status of a legal entity for their participation in civil turnover? The negative answer to the question is in the essence of the institution as a legal entity. Recognition of the legal status of a legal entity by public authorities does not correspond to the principles of the formation of a free economy. Initially, the construction of a legal entity, regardless of whether we understand it as a real or abstract person, was formed under the demand of time and in connection with objective needs for the addition of joint efforts and material resources for effective participation in civil turnover.

The institution in its modern model, the genesis of which is well-known in Soviet law, strictly speaking, does not fall under the design and essence of a legal entity, and also, as E.A. Sukhanov confirms, under the requirements of market turnover [5, pp. 9-13]. Korobets B.N., criticizing this statement, at the same time writes: "The organizational and legal form of a legal entity - institution, designed to provide socially useful goals ... is one of the ways to develop the socio–economic spheres of the state" [6, p. 246]. This, of course, does not correspond to the current civil legislation and the subject of civil law, limited to property (in this context) relations. Civil law and the constructions generated by it cannot be a tool for the development of social non-commercial spheres of society. They can only be a means of satisfying the material needs in the activities of public legal entities and their bodies, which is objectively necessary for the most complete and effective exercise of their powers. It seems that the absence of the status of a legal entity in public authorities does not prevent them from performing direct functions.

In Soviet law, the allocation of the organizational and legal form of the institution was due not only to the need for legal separation of state property in conditions of absolute state ownership of public goods, but also to the simultaneous preservation of the conditions of commodity-money relations [7, p. 141]. In relation to institutions, such isolation is expressed in estimated (non-production) strictly targeted financing, and in property terms in securing property on the right of operational management. S.N. Bratus asserts that the recognition of the status of a legal entity by state bodies, which means an extremely wide layer of organizations – enterprises and institutions, is a reflection of the process of "separation of management from ownership" [8, p. 99]. Asknaziy S.I. quite rightly notes that during the revolution, the principle of the unity of the economic system is expressed in the strict and exclusive ownership of the Soviet state, in which its organs are considered as an integral part of the entire state mechanism, and only with the onset of a new economic policy is the "denationalization of the economy" [9, p. 34]. This trend is easily explained by the fact that in the conditions of the Soviet economic system, the objective need for legal formalization of relations between authorities and other organizations proceeded from the absence of other equal subjects with whom authorities can enter into legal relations on the principles of equality of the parties, autonomy of will and property independence. In modern economic realities, the preservation of this approach seems archaic.

The basis for such a conclusion and the proof of such a thesis is the lack of full ownership of the property assigned to them by the institutions. It is the right of ownership, expressed in the freedom of disposal and determination of the legal fate of a thing, that determines the independence of the subject of civil law. In this case, a kind of artificial and hybrid model is created that does not correspond to the essence of the construction of a legal entity. Some authors call them truncated or "imperfect" legal entities [10, p. 94].  

From our point of view, a local government body, even endowed with the status of a legal entity, always acts on behalf of and in the interests of a municipal entity, since it cannot have an interest other than the interest of its progenitor. From the constitutional-legal and administrative-legal point of view, local self-government bodies are an organic part of the entire municipality [11, pp. 23-24]. In fact, can we really say that a person's liver or heart has an independent subjectivity and acts on its own behalf and only in its own interests – in the interests of purifying blood or pumping it throughout the body? Isn't that absurd? In connection with the above, it is categorically impossible to agree with the opinion of Yu.N. Kanaev, who claims that when municipalities act through their bodies – legal entities, the latter have their own specific interest. Based on this, the author proves civil law relations not only between the bodies themselves, but also between the bodies and the municipality [12, p. 68].

The analysis of the all-Russian practice shows that not only local self-government bodies, but also their separate subdivisions (committees, departments, departments and departments) are endowed with the legal status of a legal entity. So, by the decision of the Council of the municipal district "Ononsky district" dated 29.04.2019 No. 15, the Regulation on the Committee of Education of the municipal district administration was approved, according to paragraph 1.3 of which the committee is an independent legal entity, has an independent balance sheet and personal accounts. At the same time, paragraph 1.1 of the regulation confirms that the committee is part of the structure of the administration and is its branch (functioning) body (Regulation on the Committee of Education of the administration of the municipal district "Ononsky district": decision of the Council of the mun. district "Ononsky district" Zab. edges of April 29, 2019 No. 15 [Electronic resource] // Committee of the obr-I Adm. mun. district "Ononsky district": [website]. [2022]. URL: http://mouo.onns.zabedu.ru / (accessed: 05/15/2022)). The Committee is also registered as such in the Unified State Register of Legal Entities. Similar examples have been identified everywhere: Novgorod Region (for example, the education Committee of the Lyubytinsky municipal district), Khanty-Mansi Autonomous Region (for example, the education Committee of the Berezovsky district), Irkutsk Region (for example, the education Committee of the administration of the Ziminsky city municipality), Moscow Region (for example, the education department of the administration of the Zaraysk city district), Primorsky Krai (for example, municipal state institution "Department of Education of Khasansky municipal district"). It is also noteworthy that most of these divisions are located at the location of the local administration, and one can only guess about the presence of their separate property.

This practice, in our opinion, is explained by the legislative possibility of separating parts of local self-government bodies. The problem was discussed long before the adoption of the law on local self-government, and, in general, the authors spoke out against the practice of granting the status of a legal entity to such bodies and their subdivisions [13, p. 3]. In accordance with paragraph 1 of Article 123.21 of the Civil Code of the Russian Federation, a unitary non-profit organization established by the owner to carry out not only socio-cultural (educational, medical, scientific, cultural), but also managerial functions of a non-commercial nature is recognized as an institution. The latter refers to the activities of local self-government bodies and their management units. At the same time, this practice contradicts Article 50 of the Civil Code of the Russian Federation, since they do not have separate property, as well as Article 24 of Federal Law No. 7-FZ of 12.01.1996 "On Non-Profit Organizations", since they do not perform non-commercial functions other than the functions of the administration itself. Both activities relate to the field of management.

This trend also violates the rules of formal logic, since an entity that does not have administrative legal personality due to the lack of special competence, while exercising authority, is endowed with civil legal personality. It should be noted that public legal principles, including the existence of independent personal accounts and financing from the budget in an estimated manner, cannot affect legal personality in private legal relations. Developing judgments, in the end, we come to a situation where in domestic civil law, legal relations can be recognized not only between a public legal entity and its bodies, but also between individual divisions of the body among themselves and with the body itself. This naturally suggests thoughts about the revival of the idea of "economic legal relations".

It cannot be said that the problem raised is historically conditioned, as is usually the case with the problems of civil science. The fact is that neither in pre-revolutionary nor in Soviet civil law are authorities considered as independent subjects of law. Their personification is characteristic of the modern transition stage and, presumably, is due to the attempt to apply Soviet legal structures to the conditions of a free market economy. This undoubtedly entails fundamental ideological contradictions that threaten problems of an applied nature. One of them is the problem of the legitimacy of transactions made by local self-government bodies entailing obligations for the municipality, given the uncertainty of the division of competencies between the representative body and the local administration, as well as between the latter and its subdivisions endowed with the status of a legal entity [14]. The idea of a legal entity of public law, proposed and actively promoted by many authors, cannot be a way out of the problem, since it is a simple name change [15, p. 20, 16].

  To solve the analyzed problem, it is necessary to reform civil legislation in such a way that local self-government bodies are considered as an integral part of the municipality, and their actions are recognized as the actions of the latter. To do this, it is proposed to limit the spheres of activity of institutions in the norm of Article 123.22 of the Civil Code of the Russian Federation to functions of a socio-cultural nature, closing the list of such spheres and excluding the function of a "managerial nature". This will entail the impossibility of separating local self–government bodies from the body of the municipality, and the refusal to invest local self-government bodies and their parts in the body of a legal entity will not prevent them from participating in turnover on behalf of and in the interests of the entire municipality - the owner of the property. The specified model will correspond not only to the current civil legislation in its essential expression, but also to the conditions of the developing economy of free and equal participants in the turnover. At the same time, the proposed model will solve the problem of an inadequately huge, in many ways artificially multiplied, number of legal entities – non-owners of property.  

 

 

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A REVIEW of an article on the topic "Civil legal personality of local governments". The subject of the study. The article proposed for review is devoted to topical issues of establishing the legal status of local governments as participants in civil turnover. The author critically analyzes scientific approaches to the establishment of civil legal personality of local governments, offers an original point of view, a model of legislative regulation. The norms of the current domestic legislation, the opinions of scientists, and judicial practice are chosen as the subject of the study. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of the civil legal personality of local governments. Based on the set goals and objectives, the author has chosen a methodological basis for the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of judicial practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of the Civil Code of the Russian Federation). For example, the following conclusion of the author: "In accordance with paragraph 4 of Article 123.22 of the Civil Code of the Russian Federation, a state-owned institution is responsible for its obligations with funds at its disposal. And only in case of insufficient funds, the subsidiary liability for the obligations of a state-owned institution is borne by the owner of its property. Despite maintaining responsibility for the municipality, this provision entails many other practical problems. One of them is the uncertainty in which cases a public authority acts on its own behalf and in its own interests as an independent legal entity, and in which cases on behalf and in the interests of the entire municipality." The possibilities of an empirical research method related to the study of practice materials should be positively assessed. So, the author draws conclusions based on the Decision of the Council of the municipal district "Ononsky district" dated 04/29/2019 No. 15, which approved the Regulation on the Committee of Education of the municipal district administration. In addition, the author of the article effectively used the methods of analysis and generalization of scientific literature. Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of participation of local governments in civil turnover is important and necessary. Scientists dealing with this issue are arguing about the status of local governments, the existence of civil legal capacity about them, the possibility of exercising certain civil rights, as well as the performance of duties. The author is right to highlight this aspect of relevance. On the practical side, it should be recognized that problems often arise in judicial practice on various issues, in particular, on bringing local governments to civil liability. The current practice does not meet the prospects for the development of civil turnover, for example, in terms of limiting the responsibility of local governments. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "In order to solve the analyzed problem, it is necessary to reform civil legislation in such a way that local governments are considered as an integral part of a municipality, and their actions are recognized as the actions of the latter." These and other theoretical conclusions can be used in further scientific research. Secondly, the author suggests ideas for improving the current legislation. In particular, "it is proposed to limit the spheres of activity of institutions in accordance with Article 123.22 of the Civil Code of the Russian Federation to functions of a socio-cultural nature, closing the list of such areas and excluding the function of a "managerial nature". This will entail the impossibility of separating local self–government bodies from the body of the municipality, and the refusal to invest local self-government bodies and their parts in the body of a legal entity will not prevent them from participating in turnover on behalf and in the interests of the entire municipality - the owner of the property. The specified model will correspond not only to the current civil legislation in its essential expression, but also to the conditions of the developing economy of free and equal participants in the turnover. At the same time, the proposed model will solve the problem of an inadequately huge, in many ways artificially multiplied, number of legal entities – non-owners of property." The above conclusion may be relevant and useful for law-making activities. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to legal problems related to determining the legal status of local governments in civil turnover. The content of the article fully corresponds to the title, since the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Artemov V., Kondrashov Yu.V., Sukhanov E.A., Korobets B.N., Mickiewicz A.V., Bratus S.N. and others). Many of the cited scholars are recognized scholars in the field of civil law. I would like to note the author's use of a large number of practice materials, which made it possible to give the study a law enforcement orientation. Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the development of the legislation of the Russian Federation in terms of determining the civil status of local governments. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"
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