As you know, in their activities, many entrepreneurs face opposition from unscrupulous employees of state and municipal bodies and services. This can manifest itself in unreasonable checks, inadmissibility to state competitions, attempts to take away a business using official position, and so on. And quite often it happens that after going through all the instances, judicial and other law enforcement, the entrepreneur cannot find support in protecting his violated rights. The state machine often cannot work against itself. And having received refusals at all levels of the system, the entrepreneur was forced to turn to the very top of state power - to the President of the Russian Federation. But since 2012, entrepreneurs have new way protection of their violated rights in disputes with the authorities - an appeal to the Commissioner for the Protection of the Rights of Entrepreneurs under the President of the Russian Federation. About what this position is, what issues the commissioner decides, and how to contact him is described in the proposed article.
Legal status of the Commissioner for the Rights of Entrepreneurs (Business Ombudsman) in Russia
The very position of an authorized person, or as he is also called a business ombudsman, was introduced by the Decree of the President of the Russian Federation. It happened in St. Petersburg during the international economic forum in June 2012. And the first person to be appointed to this position, and to this day remains on it, was the head of Delovaya Rossiya, an all-Russian public organization known in Russia for his actions in defense of entrepreneurs - Boris Yuryevich Titov.
The federal law issued the following year already concerned not only one position of the all-Russian business ombudsman, but also regional commissioners in the constituent entities of the federation. Activities of the Commissioner for the Rights of Entrepreneurs in Russia and legal basis the activities of regional business ombudsmen are governed by Law No. 78-FZ "On Ombudsmen for the Protection of the Rights of Entrepreneurs in the Russian Federation" dated May 7, 2013.
In terms of volume, the law is rather small, it consists of only eleven articles, but it has made significant changes in the business life of the country. The powers of the business ombudsman, first of all, include consideration of complaints from entrepreneurs and making decisions on them. If the applicant's arguments are found to be well-grounded, the ombudsman takes actions provided for by law in defense of entrepreneurs. In particular, he can, for example:
- send to the state body that violated the conclusion indicating the measures necessary to restore the rights of the entrepreneur,
- submit a complaint in order to protect the rights of an entrepreneur, to a body authorized to consider such complaints,
- appeal against judicial procedure actions and acts of state bodies and officials.
A complete list of the powers of a business ombudsman is contained in the law. Both Russian and foreign entities can apply for protection to the Ombudsman for the Rights of Entrepreneurs entrepreneurial activity... The law stipulates that, along with the position of an ombudsman for an entrepreneur acting at the federal level, in the regions, the laws of the subjects of the federation may establish the positions of regional ombudsmen.
The procedure for contacting the Commissioner for the Protection of the Rights of Entrepreneurs
Also, the applicant must indicate the field of activity in which the violation of the entrepreneur's rights occurred, it can be customs or technical regulation, taxes, construction, and so on. It is necessary to indicate the body that violated the rights of the legitimate interests of the entrepreneur. As well as the surname, name and patronymic of the official who directly committed the violation. Separately, it should be indicated by what actions the rights of the applicant or a third party were violated, in whose interests he applies to an authorized representative:
- illegal criminal prosecution by law enforcement agencies,
- raiding,
- violations committed in the course of control (supervisory) measures - inspections,
- corruption,
- offenses when placing government orders,
- offenses in the provision of public services,
- gaps in regulation and violations as a result of imperfect legislation,
- acts of authorities that are contrary to the law,
- claims that violate the rights and legitimate interests of the applicants,
- other.
It should also be noted that if the nature of the prosecution of the applicant, or a third party, is not related to criminal prosecution, then before applying to the Ombudsman, it is necessary to go through all the stages of appealing against the actions and acts of state bodies, both pre-trial and judicial. The chronology of the appeal, as well as the content of the judicial acts, must be given in the application. And only after that you can proceed directly to the presentation of the essence of the complaint. Please note: Submitting a complaint to the Commissioner for the Protection of the Rights of Entrepreneurs under the President of the Russian Federation, state fee is not a subject to a tax. The following documents must be attached to the complaint without fail:
- acts, decisions, letters, replies and other documents emanating from the authorities executive power which led to the violation of the rights of the applicant or a third party,
- applications and appeals to executive authorities filed for the purpose of conducting pre-trial procedures,
- if a judicial appeal was made, copies of applications to the courts and decisions taken as a result of their consideration.
The complaint must be signed by the applicant and have an address (including an electronic one) to which a response can be sent to it.
Discussion “Protection of the rights of entrepreneurs. Dialogue between business and government "
If your rights as a small and medium-sized business entity are violated, please read the procedure for contacting the Bureau and report a violation.
1. The Bureau provides public support and protection of the rights of small and medium-sized businesses on the basis of applications from entrepreneurs.
2. To consider your appeal, please send an application to the Bureau, in which it is mandatory to indicate:
- the name of the applicant - a legal entity (the name of the head, the organizational and legal form, the main type of activity is indicated) or an individual entrepreneur (the name is indicated, the type of activity);
- the region in which the violation of rights occurred;
- contact information of the applicant (indicate the region, zip code, town, address, email, telephone);
- the text of the appeal (state (municipal) authorities, officials (full name, position), whose actions are being complained about, can be indicated; the essence of the violation; when and under what circumstances these actions were committed or from what time they continue to be committed; what regulatory legal acts You consider violated; what consequences of violations have arisen (damage caused, etc.); the measures taken to protect the rights and their results.
The application must be accompanied by documents and materials confirming the applicant's arguments.
The Institute of the Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs (hereinafter - the Commissioner) was created in pursuance of the Decree of the President of the Russian Federation of May 7, 2012 No. 596 "". The need for it is dictated by the fact that often business entities (hereinafter referred to as entrepreneurs) are not able to independently resolve situations related to the violation of their rights and legitimate interests, especially in cases where there are administrative barriers, bureaucratic pressure, corruption manifestations on the part of government bodies and their officials.
For the first time, the position of the Commissioner was established by the Decree of the President of the Russian Federation of June 22, 2012 No. 879 "", and was appointed to it Boris Titov... In order to consolidate the legal status of the authorized person and detailed regulation of its activities, the Ministry of Economic Development of Russia developed and subsequently adopted by the State Duma and signed by the President of the Russian Federation Federal Law No. 78-FZ dated May 7, 2013, which entered into force on May 8, 2013 (hereinafter - the law on commissioners).
At the moment, the commissioner is a federal state civil servant of the Presidential Administration of the Russian Federation, appointed by the head of state, taking into account the opinion of the business community. Financial support of its activities is carried out at the expense of the federal budget. However, it is planned that from January 1, 2015, the Commissioner and his staff will receive the status of a state body, providing guarantees of state protection of the rights and legitimate interests of business entities and compliance these rights state and municipal authorities and officials ().
reference An authorized person is a person who is a citizen of Russia, at least 30 years old, who has higher education, appointed by the President of the Russian Federation for a period of five years. One and the same person cannot hold the specified position for more than two consecutive terms. His powers can also be terminated ahead of schedule by the decision of the head of state. The Commissioner does not have the right to be a member of the Federation Council, a deputy of the State Duma, a deputy of a legislative (representative) body of state power of a constituent entity of the Russian Federation, to engage in other paid activities, with the exception of teaching, scientific or other creative activities. The Commissioner is obliged to terminate activities that are incompatible with his status no later than 14 days from the date of appointment. In his activities, the Commissioner cannot be guided by decisions of a political party or other public association of which he is a member. (Art. 1 Federal law dated May 7, 2013 No. 78-FZ ""). |
In addition, each region of Russia has the right to establish the position of an ombudsman for the protection of the rights of entrepreneurs in a constituent entity of the Russian Federation (hereinafter referred to as regional ombudsmen) to solve relevant problems at the local level. The legal status, main tasks and competence of the regional commissioner, as well as the procedure for his appointment, are established by a special law of the constituent entity of the Russian Federation. The candidacy of such an official is coordinated with the Ombudsman and the business community.
General competence of the Commissioner
The competence of the Ombudsman includes the protection of the rights and legitimate interests of both Russian and foreign entrepreneurs on the territory of Russia, and Russian entrepreneurs on the territories foreign states... For these purposes, he also exercises control over the activities of federal and regional bodies executive power and bodies local government.
In addition, the Commissioner promotes the development of public institutions focused on protecting the rights and legitimate interests of entrepreneurs, interacts with the business community, participates in the formation and implementation of public policy in the relevant area.
Procedure for consideration of complaints by the Commissioner
The Commissioner considers applications in accordance with Federal Law No. 59-FZ of May 2, 2006, but taking into account the specifics established by the law on commissioners. Recall that, as a general rule, written request, received by a state body, local self-government body or official in accordance with their competence, is considered within 30 days from the date of registration.
A complaint can be sent both in writing (including during a personal appointment) and in electronic form. In the latter case, you must fill out a special form and send it to the address [email protected] ... The decision to accept a complaint for consideration or to refuse it is made by the Commissioner within 10 days from the date of its receipt (the applicant is notified of the decision taken within three days). In this case, the refusal to accept the complaint must be motivated, i.e. contain at least one of the following grounds ():
- the text of the complaint sent to writing, is not readable;
- the complaint contains only the question to which the Ombudsman has repeatedly given substantive answers in writing to the complainant in connection with the complaints previously sent, and the complaint does not provide new circumstances on this issue;
- an answer on the merits of the question raised in the complaint cannot be given without disclosing information constituting a state or other secret protected by federal law.
If the complaint is accepted for consideration, the Ombudsman notifies the applicant of the results of the implementation of measures to restore his violated rights and legitimate interests at least once every two months. It should be noted that the Ombudsman's official website has published a detailed procedure for filing and considering complaints and making decisions on them, approved in execution.
Powers of the Ombudsman in the course of considering a complaint
The Commissioner is endowed with a fairly wide range of tools for resolving applications from entrepreneurs, including a number of power... In particular, when considering a complaint, the Ombudsman has the right ():
- Request and receive from public authorities and local self-government bodies and officials the necessary information, documents and materials (in particular, the legislation directly stipulates the right of authorized persons to receive free information on registered rights to real estate and transactions with it, as well as information and documents from Unified State Register of Legal Entities and EGRIP).
- Unimpeded to visit public authorities and local governments upon presentation service ID.
- To visit places of detention of suspects and accused persons and institutions executing criminal sentences in the form of imprisonment in order to protect the rights of entrepreneurs without special permission. We are talking about entrepreneurs, suspects, accused or convicted in cases of crimes provided for, and (if they are committed in the field of entrepreneurial activity), as well as,. It is also worth noting that the proposals, statements and complaints of suspects and accused in custody addressed to the commissioner are not subject to censorship and are sent to the addressee in a sealed package (part 2 of article 21 of the Federal Law of July 15, 1995 No. 103-FZ "") ...
- Participate in an on-site inspection conducted in relation to the applicant (and with his written consent) within the framework of state control (supervision) or municipal control. The corresponding norm on the right of a legal entity and an individual entrepreneur to involve the Ombudsman to participate in the audit is also enshrined in paragraph 5 of Art. 21 Federal Law of December 26, 2008 No. 294-FZ "".
- Take out the subjects immediate execution orders to suspend the operation of non-normative legal acts of local self-government bodies that violate the rights and legitimate interests of entrepreneurs. This right can be realized only on condition of simultaneous appeal by the Ombudsman of such a document in court. In this case, its effect is suspended only for a period until the entry into force of the relevant judicial act, which will be issued following the consideration of the application of the authorized person. The executive and administrative bodies or officials of local self-government are obliged to inform the Commissioner about the execution of the above-mentioned order within three days, and representative bodies local self-government - no later than three days from the date of their decision (part 1 of article 48 of the Federal Law of October 6, 2003 No. 131-FZ "").
- Engage experts who can assist in their full, comprehensive and objective consideration of complaints from entrepreneurs. It should be noted that in addition to the right of the Ombudsman to perform the above actions, there is a direct obligation of heads and other officials of state and local government bodies (): to ensure the reception of the Ombudsman; send a written response to his appeal; provide the requested information, documents and materials.
These actions must be performed within a period not exceeding 15 days from the date of receipt of the relevant appeal from the Commissioner. The answer to his appeal is sent with the signature of the official to whom it was directly addressed.
The complaint must necessarily indicate which rights of the business entity have been violated, the entity who violated these rights, the violated norms of substantive and procedural law, the circumstances in which the violation occurred, actions that, in the applicant's opinion, can lead to the restoration of the violated right, or elimination of the consequences of the violation, actions taken by the business entity independently to protect the rights. If the applicant applies to the Commissioner with a request to perform certain procedural actions within the framework of civil, arbitration, administrative, or criminal proceedings, the complaint must indicate valid reasons that objectively prevent the applicant and (or) the business entity in whose interests the applicant is acting independently perform such procedural actions and attached documents confirming this.
Information on the results of consideration of complaints from business entities is subject to placement (publication) on the Ombudsman's official website on the Internet. A prerequisite is anonymization of personal data. Responsibility for Interfering with the Activities of the Commissioner In order to suppress attempts to prevent the Commissioner from exercising his legal rights and obligations, administrative responsibility (). According to the relevant cases are considered by the court... So, interference in the activities of the commissioner in order to influence his decisions entails the imposition of administrative fine in the amount of 1 thousand to 2 thousand rubles. If an official did not comply with the legal requirements of the Commissioner or hindered his activities in another form, he may be fined in the amount of 2,000 to 3,000 rubles. In case of non-compliance by officials deadlines providing the Commissioner with information (documents, materials, responses to requests), the fine will be from 1,000 to 2,000 rubles. Finally, the repeated commission of any of the above-mentioned offenses within a year shall result in disqualification for a period of six months to one year. It should be noted that the responsibility for obstructing the activities of regional commissioners is not fixed and can be established by regulatory legal acts of the constituent entities of the Russian Federation. Other rights and obligations of the Commissioner The Commissioner has the right to appoint public representatives acting on a voluntary basis who carry out representative and expert functions. He can also create expert, advisory and public councils, working groups and other advisory bodies acting on a voluntary basis, and involve representatives of state authorities, local self-government, the business community, and public organizations to participate in their activities. In addition, the Ombudsman has the right to create public receptions that provide entrepreneurs with advice on issues related to his competence (). "Precisely because appeals are associated with almost all sectors of the economy, we have created an institute of public ombudsmen, who, on a gratuitous basis, consider appeals, each in its own field. At the moment, there are 27 such public ombudsmen with an authorized representative," he explained Boris Titov. A separate block of rights of the Ombudsman is associated with his activities as an expert who has the right to apply to various state and municipal authorities with legislative and other initiatives related to the protection of the rights and legitimate interests of entrepreneurs (). Such proposals may be put forward by the Ombudsman, in particular, based on the results of consideration and generalization of applications from entrepreneurs (paragraph 2, clause 2.1 of the Procedure for consideration of applications by the Ombudsman). For example, the Ombudsman has the right to send proposals on the adoption (amendment, invalidation) of normative legal acts related to his sphere of activity to the President of the Russian Federation, members of the Federation Council, deputies of the State Duma, to the Government of the Russian Federation, legislative (representative) bodies of the constituent entities of the Russian Federation, and other bodies state power and local government. He can also give opinions on draft regulatory legal acts affecting the rights and legitimate interests of entrepreneurs. Such conclusions are obligatory for consideration by the Government of the Russian Federation, federal and regional executive bodies, local self-government bodies (the response time to the Commissioner is 30 days from the date of receipt). Also, the Commissioner can send to the President of the Russian Federation:
If a federal executive body has adopted a normative act that unreasonably impedes the conduct of entrepreneurial activity, then the Commissioner has the right to send to the Government of the Russian Federation motivated proposals to cancel (suspend) both the entire document and its individual provisions. The Ombudsman can send similar proposals to the highest official of the constituent entity of the Russian Federation in relation to the normative acts of regional executive bodies, but only if the corresponding powers are provided for by the constitution (charter) of the constituent entity of the Russian Federation. Finally, the Commissioner has the right to direct the bodies and persons entitled to appeal to Constitutional Court RF motivated proposals to apply to the Constitutional Court of the RF with a request for compliance with regulations (). At the same time, at the end of each calendar year, the Ombudsman submits a report to the President of the Russian Federation on the results of his activities, which must also be posted on the Ombudsman's official website on the Internet and officially published in " Russian newspaper".
The most significant initiatives of the Commissioner One of the most notable initiatives of the Ombudsman was the preparation, together with the deputies, of the Resolution of the State Duma of the Federal Assembly of the Russian Federation of July 2, 2013 No. 2559-6 GD "" (hereinafter referred to as the resolution). The document provides for the release from criminal punishment and the removal of convictions from persons convicted for the first time for crimes in the field of entrepreneurial activity (including if the conviction has not yet entered into force). In particular, we are talking about conditionally sentenced, convicted, whose serving of punishment has been delayed, conditionally released from the remaining unserved part of the sentence, as well as those sentenced to punishments not related to imprisonment. Also, these persons will be exempted from additional types of punishments not executed on the date of entry into force of the resolution, with the exception of punishment in the form of deprivation of the right to hold certain positions or engage in certain activities. Along with this, the document provides for the termination of criminal cases on crimes in the field of entrepreneurial activity in this area, which are in the proceedings of the bodies of inquiry, preliminary investigation and the court, on crimes committed before the entry into force of the decision. At the same time, the amnesty applies only to convicts who have fulfilled their obligations to return property and (or) reimburse losses to the victims before the expiration of the term for the execution of the decision. In addition, the amnesty (with the exception of its part related to the termination of proceedings on cases) does not apply to convicted persons:
The list of offenses covered by the amnesty is closed and includes:,, and,, The amnesty will end on January 3, 2014. Also the Commissioner stands for preservation existing grounds to initiate criminal cases on tax crimes, namely - only on the basis of materials sent by the tax authorities (,). Recall that earlier the President of the Russian Federation to the State Duma was introduced a bill, which provides for the possibility of initiating criminal cases by law enforcement agencies in general order - without the participation of tax authorities.
Moreover, the mechanism proposed by the head of state was already in effect earlier, but was canceled in order to reduce corruption pressure on business. According to the Ombudsman, the current procedure for initiating criminal cases on tax crimes has proven its effectiveness and led to a significant reduction in the facts of unjustified criminal prosecution of entrepreneurs. At the same time, its revision will lead to the renewal of negative practice the use of criminal prosecution for tax crimes for corruption purposes. In this regard, the Commissioner, together with the heads of OPORA Russia, the Chamber of Commerce and Industry, the Russian Union of Industrialists and Entrepreneurs and Business Russia, sent an appeal to the President of the Russian Federation for additional consultations with representatives of the business community and law enforcement agencies on the advisability of changing the procedure for initiating criminal cases on tax crimes. In addition, the Commissioner made a number of other proposals. For example, during a working meeting on November 13 of this year with the Prime Minister of the Russian Federation, he proposed to extend the rules in banks to individual entrepreneurs... According to him, this measure will affect about 3 million people and will not create a large burden on the budget, but at the same time it will support small businesses. "This spring, I received an appeal from an individual entrepreneur from Omsk, whose deposits burned out in a bankrupt bank. It turns out that their deposits are practically not protected. Therefore, I came up with ideas to change this procedure and separately insure deposits of individual entrepreneurs in the DIA. This initiative, By the way, I met full support from the agency itself, and now the Chairman of the Government of the Russian Federation Dmitry Medvedev has given instructions to work it out in detail, "- comments on his initiative Boris Titov. In addition, the Commissioner supports the initiative to unite the RF Armed Forces and the RF Supreme Arbitration Court. "This will solve the problem of prejudice when the courts general jurisdiction ignore the decisions of arbitration courts, "he said. The Commissioner also actively advocates the development of the institution of mediation (formation of a single list of professional mediators), the introduction of jury arbitration courts, the reform of the arbitration court system, in particular, the creation of an arbitration court based on the Chamber of Commerce and Industry of the Russian Federation.
How do regional ombudsmen handle complaints from entrepreneurs? The regional commissioner carries out his activities strictly within the boundaries of the territory of the corresponding constituent entity of the Russian Federation. Based on this, it considers complaints from entrepreneurs not only registered in the region, but also those whose rights and legitimate interests have been violated on its territory (). Entrepreneurs can send a complaint to the regional ombudsman about decisions or actions (inaction) of state authorities of the constituent entity of the Russian Federation, territorial bodies federal bodies executive power in a constituent entity of the Russian Federation, local authorities, other bodies, organizations endowed with certain state or other public powers, officials that violate the rights and legitimate interests of entrepreneurs (). It is not allowed to send a complaint on the same issue to an authorized person carrying out their activities in different constituent entities of the Russian Federation. If, after the acceptance of the complaint for consideration by the regional authorities, it is established that a similar complaint is already being considered by an authorized person in another constituent entity of the Russian Federation, the complaint is left without further consideration and returned to the business entity that has applied with it. The detailed procedure for the consideration of complaints by regional commissioners is determined by the laws of specific constituent entities of the Russian Federation (). The rights of the regional ombudsman when considering complaints, established by federal legislation, coincide with the rights of the ombudsman (with the exception of the opportunity to freely enter state and municipal bodies upon presentation of an official certificate). At the same time, for example, their right to visit places of detention and institutions executing criminal punishments in the form of imprisonment without special permission is not spelled out directly in the law on commissioners. However, they are enshrined in the aforementioned specialized normative acts on an equal basis with the similar rights of the Ombudsman. Detailed regulation of the activities of regional commissioners is carried out by each constituent entity of the Russian Federation in its own way. Regional commissioners at the end of the calendar year are obliged to send the Commissioner information on the results of their activities with an assessment of the conditions for doing business in the region and proposals for improvement. legal status entrepreneurs.
When applying to arbitration courts, the federal and regional commissioners use procedural rights and bear the procedural obligations of the plaintiff. Besides, Authorized has the right to intervene on the side of the plaintiff or the defendant as a third party who does not make independent claims. He can also appeal against judicial acts that have entered into legal force, using the status of a person who did not participate in the case, about whose rights and obligations court of Arbitration accepted judicial act ( , ). At the request of the person in respect of whom the proceedings are underway in the case of administrative offense in the field of entrepreneurial activity, the Ombudsman may be allowed to participate in the case as a defense lawyer (). In this capacity, he has the right to familiarize himself with all the materials of the case, submit evidence, file motions and challenges, participate in the consideration of the case, appeal the application of measures to ensure the proceedings in the case, the ruling on the case, and enjoy other procedural rights (). It should be noted, however, that for regional commissioners the right to act as a defender is not provided. In addition, the Ombudsman or regional ombudsman for the determination or order of the court on the basis of a petition of the accused may be admitted as a defense lawyer in a criminal proceeding along with a lawyer, and in proceedings before a magistrate and instead of a lawyer (in order). news |
Keywords
AUTHORIZED FOR ENTREPRENEURS / HUMAN RIGHTS OFFICER / STATE / SUBJECTS OF THE RF / ECONOMIC FRAMEWORK OF THE CONSTITUTIONAL ORDER / STATE / SUBJECTS OF THE RUSSIAN FEDERATION / ECONOMIC BASICS OF THE CONSTITUTIONAL SYSTEM / BUSINESS OMBUDSMAN / OMBUDSMANannotation scientific article on law, the author of the scientific work - Fadeeva V.A.
Introduction. In the current economic conditions of Russia, the need to create additional tools to support the rights and legitimate interests of entrepreneurship has become obvious. One of these tools can be considered the creation of an institute in the Russian Federation in 2012. The article defends a position based on analysis constitutional provisions, federal legislation, as well as the political and economic development of Russia, according to which the business ombudsman is a constitutional institution. Results. In an article for the research institute commissioner for the Protection of the Rights of Entrepreneurs general scientific methods were applied: analysis, synthesis, the system approach method, the functional approach method, as well as special scientific methods: statistical, formal legal and comparative legal. The result of the research of the institute commissioner for the Protection of the Rights of Entrepreneurs is the justification by the author of the position according to which the institution of the business ombudsman has a constitutional legal status... Conclusion. The Institute of Business Ombudsman is a kind of new milestone in the modeling of relations between the state and economic entities of the country. Its activities are extensive and specific and include such powers that could not be effectively implemented within the framework of the work of the bodies provided for by the Constitution of the Russian Federation.
Related Topics scientific works on law, the author of the scientific work is V.A.Fadeeva.
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Political and legal basis for the interaction of the business ombudsman with government authorities and other organizations to protect the rights and legitimate interests of business entities
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Commissioners for the Protection of the Rights of Entrepreneurs: Foreign Experience and the Russian Model
2014 / Amikh Valentina Viktorovna -
Formation of the Russian national model of human rights institutions in the field of entrepreneurial activity
2016 / Korzhenevskaya Nadezhda Vladimirovna -
Independence of Commissioners for the Protection of the Rights of Entrepreneurs in the Subjects of the Russian Federation as a Condition for the Development of Entrepreneurship
2018 / Abakumova Ekaterina Borisovna
Introduction. The article considers the status of Business Ombudsman in Russia. This topic is relevant because it is important for Russia today: higher rates of the private sector, especially, of the small and medium businesses. In this regard, the hot topic for our country is protecting of businesses, in particular, their economic rights in their relations with the state. Results. In an article for the study of Business Ombudsman in Russia apply scientific methods of analysis, synthesis, method, system approach, the method of the functional approach, as well as private science methods: statistic, legalistic and comparative law. The study the status of Business Ombudsman in Russia showed that this institution has Constitutional status although it is not registered in the text of Constitution of the Russian Federation. Conclusion. The Russian Business Ombudsman Institution is a new structure in the modeling of relations between the state and business in the country. Its activities are extensive and specific and includes such powers, which could not be implemented effectively in the work of the bodies provided for by the Constitution of the Russian Federation.
The text of the scientific work on the topic "Institute of the Commissioner for the Protection of the Rights of Entrepreneurs in the Russian Federation"
INSTITUTE OF THE OFFICER FOR THE PROTECTION OF THE RIGHTS OF ENTREPRENEURS IN THE RUSSIAN FEDERATION
V. A. Fadeeva
postgraduate student of the Department of Constitutional and Municipal Law, Saratov state University Email: [email protected]
Introduction. In the current economic conditions of Russia, the need to create additional tools to support the rights and legitimate interests of entrepreneurship has become obvious. One of these tools can be considered the creation in 2012 of the institution of the Commissioner for the Protection of the Rights of Entrepreneurs in the Russian Federation. The article defends the position based on the analysis of constitutional provisions, federal legislation, as well as the political and economic development of Russia, according to which the business ombudsman is a constitutional institution. Results. In the article, to study the institution of the ombudsman for the protection of entrepreneurs' rights, general scientific methods were applied: analysis, synthesis, the system approach method, the functional approach method, as well as specific scientific methods: statistical, formal legal and comparative legal. The result of the study of the institution of the ombudsman for the protection of the rights of entrepreneurs is the substantiation by the author of the position according to which the institution of the business ombudsman has a constitutional and legal status. Conclusion. The Institute of Business Ombudsman is a kind of new milestone in the modeling of relations between the state and economic entities of the country. His activities
is extensive and specific and includes such powers that could not be effectively implemented within the framework of the work of the bodies provided for by the Constitution of the Russian Federation. Key words: ombudsman for the protection of entrepreneurs' rights, ombudsman for human rights, state, constituent entities of the Russian Federation, economic foundations of the constitutional order.
Introduction
The Preamble of the Constitution of the Russian Federation says that it is adopted in an effort to ensure the well-being and prosperity of Russia. It is no secret that they are possible only if there is a strong competitive economy of the state. Today, on the way to the welfare of the state, it is necessary to develop the private sector of the Russian economy, to remove various barriers that hinder the development of entrepreneurship. To achieve these goals, the need for special instruments to support the private sector of the eco-
country nominees. One of these tools can be considered the introduction by the decree of the President of the Russian Federation in 2012 of the post of the Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs, whose activities were subsequently regulated by the Federal Law "On Commissioners for the Protection of the Rights of Entrepreneurs in Russian Federation". The adoption of a special regulatory legal act allows us to speak of the business ombudsman as a special institution in the state protection mechanism constitutional law to freely use their abilities and property for entrepreneurial activity, in relation to the field of interaction of entrepreneurs with state bodies, local governments and officials.
results
“The need to create this institution was due to the fact that often business entities are not able to independently resolve the problems associated with the violation of their rights and legitimate interests, especially in cases where there are administrative barriers, bureaucratic pressure, corruption manifestations on the part of state bodies. authorities and their officials and the like ”. In addition, today one of the main negative phenomena that entrepreneurs face in carrying out their activities, namely raiding, has changed significantly in recent years. As the federal business ombudsman Boris Titov noted, “earlier there was raiding by commercial structures ... Now raiding is almost exclusively a business of officials. Basically, the weaning of companies and property is the lot of people who, in their free time, occupy high government posts and use government resources for this. " This state of affairs led to the fact that in 2011, 151 thousand criminal cases were initiated on economic charges, of which only 21 thousand were the subject of judicial review. The absolute majority of cases did not reach the court, which allows us to say that criminal cases are used as a tool to influence entrepreneurs. For comparison, in the field of protection civil rights more than 90% of cases reach the court. Also, the business ombudsman announced the data, according to which there are 13,600 entrepreneurs in prisons, of which 5,211 are in custody, while in accordance with paragraph 1.1 of Art. 108 of the Criminal Procedure Code of the Russian Federation, such a measure of restraint of freedom cannot be applied to
a suspect or accused of committing crimes on economic charges.
In accordance with Part 2 of Art. 1 of the Code of Criminal Procedure of the Russian Federation “The Commissioner-Plenipotentiary under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs and its working apparatus is a state body with the right of a legal entity, providing guarantees of state protection of the rights and legitimate interests of business entities and the observance of these rights by state authorities, local authorities officials. " ... This regulatory legal act also provided for the possibility of creating a state body authorized to protect the rights of entrepreneurs in the constituent entities of the Russian Federation. To date, the institution of the business ombudsman is represented in 68 constituent entities of the Federation, most of which have already adopted or are being adopted relevant laws. In some regions, for example, in the Lipetsk, Orenburg and Saratov regions, corresponding positions have been established, but laws have not yet been adopted, in others, such as, for example, in the Omsk region, this position will appear only with the adoption of the corresponding regulatory legal act. There are also subjects with a principled position. Thus, the majority of the deputies of the Legislative Assembly of the Kirov region refused to adopt the law on the business ombudsman. Most of the subjects in adopted laws provides for the functioning of the commissioner and his staff on a permanent professional basis with the allocation of funds from the regional budget. There are regions that defend the position according to which the regional business ombudsman should carry out his activities as a state body on a voluntary basis. This opinion, in particular, is shared by M. A. Fateev, Commissioner for the Protection of the Rights of Entrepreneurs of the Saratov Region, under whose leadership the relevant regulatory legal act is currently being developed at the CCI of the region. It should be noted that in Rostov region The Law "On the Commissioner for the Protection of the Rights of Entrepreneurs in the Rostov Region" provides dispositive norm, in accordance with which the governor, when appointing an authorized person to a position, has the right to independently decide on the replacement of this public office on a permanent professional basis or on a voluntary basis. At the moment, the decree of the governor of the Rostov region stipulates that the business ombudsman carries out his activities on a voluntary basis.
The position of the Commissioner for the Protection of the Rights of Entrepreneurs should be introduced
in each constituent entity of the Russian Federation, taking into account the characteristics of a particular region. So, if we talk about the Saratov region, then the business ombudsman in this subject is also the president of the regional CCI, which, prior to the introduction of the institute under study, dealt with similar issues. This fact allows the business ombudsman to use the apparatus of the Chamber of Commerce and Industry of the Saratov Region in carrying out his activities, therefore, there is no urgent need to allocate funds from the treasury of the subject to pay for his activities. A situation is also possible in which the implementation of the activities of the Commissioner for the Protection of the Rights of Entrepreneurs in a particular region is preferable on a voluntary basis in view of the regional budget deficit.
Of legislative definition of the investigated state body, it follows that the protection of the rights and legitimate interests of entrepreneurs is the main task of the business ombudsman, which implies, first of all, its work on considering complaints of business entities about non-normative legal acts, decisions or actions (inaction) of state bodies authorities, local authorities, officials violating their rights and legitimate interests in the field of entrepreneurial activity. But it should be assumed that the competence of the Commissioner for the Protection of the Rights of Entrepreneurs fully acquires constitutional and legal significance only when considering the significance of his activities in a broader sense. That is, the business ombudsman should become such a state body that will contribute to the greatest extent to achieving a balance between the interests of the state and the private sector of the country's economy. The last statement is based on the fact that until recently, in the political and economic sphere of our state, there were alternating distortions in the dominance of the interests of the state and entrepreneurs. Indeed, since the adoption of the Constitution of the Russian Federation in 1993, which proclaimed the recognition and protection of private property, harmonious relations between the state and entrepreneurship, alas, have not developed.
The Commissioner for the Protection of the Rights of Entrepreneurs is an institution with a certain specificity related to the fact that it is a state body, but its very creation was initiated by the business community. This fact, on the one hand, testifies to the positive evolution of relations between the state and entrepreneurship, and on the other hand, it assumes that by its activities the institution of an ombudsman for the protection of the rights of enterprises
acceptors is able to influence the adoption of further balanced political decisions in the economic sphere of the state.
The above allows us to say that the business ombudsman in our country is important for the constitutional and legal development of Russia and, therefore, is a constitutional institution. Note that there is an opposite position in the scientific literature. So, S.G. Sergeev writes that the Commissioner for the Protection of the Rights of Entrepreneurs is a non-constitutional institution. At the same time, he notes that if the business ombudsman became part of the General Prosecutor's Office of the Russian Federation by appointing a special federal prosecutor, then only in this case he would “be integrated into the system of state bodies established by the Constitution”. This position seems to be controversial. In accordance with the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation", this body supervises the observance of the Constitution of the Russian Federation and the implementation of laws in force on its territory. The business ombudsman, as mentioned above, was conceived as a structure that protects the rights and legitimate interests of entrepreneurs in their interaction with state bodies, local governments, officials.
The analysis of the Constitution of the Russian Federation gives grounds to speak about the possession of the institution of the Commissioner for the Protection of the Rights of Entrepreneurs in the Russian Federation of constitutional and legal status. Let's pay attention to the place of this state body among the bodies determined by the Basic Law. The Federal Business Ombudsman was initially, from the moment of the issuance of the relevant Decree of the Head of State, defined as the “Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs”. It follows from the provisions of the Constitution of the Russian Federation that the President of Russia, not belonging to any of the designated branches of government, exercises state power. Therefore, we can conclude that the business ombudsman also does not belong to any of the three branches of government enshrined in the Constitution, and is accountable only to the head of state. But this fact, as in the case of the prosecutor's office, does not at all indicate that he has no powers of authority. It can be said that the institution of the ombudsman for the protection of the rights of entrepreneurs has the legal status of "a subsystem of state power that cannot be classified as legislative, executive and judicial, but can function together with them, providing them with the necessary addition, taking into account the requirements of modern social development."
After the position of the business ombudsman was approved by a relevant decree, the Presidential Commissioner for the Protection of the Rights of Entrepreneurs entered the structure of this security body of the head of state. That is, speaking about the institution of the ombudsman for the protection of the rights of entrepreneurs, two aspects of its activities should be distinguished, firstly, the federal business ombudsman and his working apparatus are an independent state body, and secondly, the authorized person under the President of the Russian Federation for the protection of rights entrepreneurs is an official of the Presidential Administration, which is also a state body. It is worth noting that this happened for the first time, when a position heading an independent state body was included in the Administration of the head of state.
Speaking about the norms of the Constitution of the Russian Federation, which served as a prerequisite for the creation of the institution of the Commissioner for the Protection of the Rights of Entrepreneurs, special attention should be focused on the activities of the Commissioner for Human Rights in the Russian Federation. It should be noted that the Basic Law initially provided for this official of constitutional and legal relations, whose competence, prior to the introduction of the institution of the business ombudsman, included the consideration of complaints from legal entities and individual entrepreneurs against illegal actions (inaction) of state authorities. The corresponding federal constitutional law also classifies the ombudsman and his staff as state bodies. A logical question arises: why was the Commissioner for the Protection of the Rights of Entrepreneurs a member of the Presidential Administration, when he could be an element of the structure of the body of the Commissioner for Human Rights? Everything is not as simple as it would seem. The activity of the latter is regulated by the Federal Constitutional Law of February 26, 1997 No. 1-FKZ "On the Ombudsman for Human Rights in the Russian Federation." This normative legal act explains that the Ombudsman exists to ensure guarantees of state protection of the rights and freedoms of citizens, their observance and respect by state bodies, local self-government bodies and officials. Naturally, economic rights citizens, among whom the right of citizens to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law, fell under the competence of the Ombudsman before the introduction of the position of business
the Ombudsman. An analysis of the reports of the Human Rights Ombudsman of the Russian Federation over the past 5 years shows that the share of complaints with economic topics is significantly inferior in the number of complaints on personal (civil) and social issues, and the number of complaints in the field of protecting the rights of entrepreneurs from illegal actions of state bodies and officials is and an insignificant percentage of the total number of complaints received. It turns out that entrepreneurs were reluctant to turn to the ombudsman for the protection of their rights.
Conclusion
The creation of the institution of the business ombudsman is a kind of new milestone in modeling the relations between the state and economic entities of the country. Its activities are very broad and specific and include such powers that could not be effectively implemented within the framework of the work of the institution of the ombudsman for human rights. For prosperity modern Russia today it is extremely important to develop its private sector of the economy. In this regard, the institution of the business ombudsman should take a special position among the bodies determined by the Basic Law. The constitutional and legal development of our state was facilitated by the article of the Constitution of the Russian Federation, which provides for the post of a human rights commissioner. She acted as a kind of prerequisite for the creation of a special state body - an authorized person to protect the rights of entrepreneurs. The latter's competence presupposes the removal of the powers to protect the rights of entrepreneurs from the scope of the ombudsman's activities, provided for by the Constitution. The consolidation of the institution of the business ombudsman as a special state body testifies to the peculiarities of the goals and tasks assigned to it, which have become relevant in connection with the modern political and economic development of our state.
List of references
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The Russian Business Ombudsman Institution
Postgraduate, Department of Constitutional and Municipal Law, Saratov State University, 83, Astrakhanskaya str., Saratov, 410012 Russia E-mail: [email protected]
Introduction. The article considers the status of Business Ombudsman in Russia. This topic is relevant because it is important for Russia today: higher rates of the private sector, especially, of the small and medium businesses. In this regard, the hot topic for our country is protecting of businesses, in particular, their economic rights in their relations with the state. Results. In an article for the study of Business Ombudsman in Russia apply scientific methods of analysis, synthesis, method, system approach, the method of the functional approach, as well as private science methods: statistic, legalistic and comparative law. The study the status of Business Ombudsman in Russia showed that this institution has Constitutional status although it is not registered in the text of Constitution of the Russian Federation. Conclusion. The Russian Business Ombudsman Institution is a new structure in the modeling of relations between the state and business in the country. Its activities are extensive and specific and includes such powers, which could not be implemented effectively in the work of the bodies provided for by the Constitution of the Russian Federation.
Key words: business ombudsman, ombudsman, state, subjects of the Russian Federation, economic basics of the constitutiona system.
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Boris Titov is a representative of the interests of entrepreneurs under the President. And many Russian citizens are interested in how this work is being done today, what are its results and what is known about the facts of the biography and personal life of the authorized politician himself.
From the very beginning
Boris Yuryevich Titov was born in the winter of 1960 on December 24 in Moscow. His father was at that time an employee of the Ministry of Foreign Trade Soviet Union... When the boy was 6 years old, their family went to New Zealand, since the head of the family was sent there for several years for work. Boris's school studies began there and lasted until the age of 10. After returning, having completed his primary education already in Russia, the young man entered the higher educational institution of MGIMO, which he successfully graduated in 1983.
The Titov family on the paternal side has noble roots. Boris Yuryevich's grandfather was a physician and worked as a chief physician. Well, the maternal great-grandfather is a strong Orenburg Cossack.
Boris Titov. Activity biography
1983 to 1989 the young man worked for the Soyuznefteexport foreign trade association. And in 1989, Boris was appointed head of the chemistry department at the Urals joint venture with the Dutch, where he headed until 1991. In this very 91 year, Titov creates a trading and investment company Solvalub LTD for the production of petroleum and gas chemistry products, and becomes its executive director. 1996 to 1999 he becomes the head and works as the president of the SVL subsidiary, JSC Interkhimprom. 2000 to 2001 heads the post of Chairman of the Joint Management Board of Interkhimprom. Boris Titov is a man of an active life position. This can be seen from the facts of his business biography. The successful start gave a good boost to his career growth.
Personal life
Boris is very fond of travel, he is fluent in English and Spanish, thanks to which he has no difficulties with communication in any country.
In addition to traveling around the world, he liked diving and squash lessons, to which he occasionally devotes his free time with pleasure. He is fond of yachts, is seriously interested in navigation. Marital status Boris - married. His wife Elena is the director of the All-Russian Moscow Museum of Decorative and Applied Arts. In funds mass media, where now you can often hear the name Boris Titov, his wife is also presented as the head of the Foundation for the Development of Russian Glass. The Titov family has two children: daughter Maria (1992) and son Pavel (1984). Boris, as a successful businessman, was repeatedly mentioned among the Russian billionaires.
Professional experience and dynamic growth
Meanwhile, Boris Titov's career continues to go uphill. The accumulated experience allows him to serve as president of CJSC "Agrochemical Corporation" Azot "for a year. Around the same years, Titov's biography as a politician began. He became the head of the Fund for the Development of the Mineral Fertilizers Industry. Already in those years, Boris Titov acquired a private jet. In the same year 2000, the businessman was enrolled in the management staff. russian Union industrialists. Well, after 4 years Boris became the head of Delovaya Rossiya and was admitted to the Public Chamber.
Under the leadership of Titov, the company in 2006 began to develop a new direction - investing in wine production, for which it was acquired trademark Abrau-Dyurso. And here the accumulated experience made it possible to give the business a successful course: after 8 years the expanded production reached an excellent result in the form of a fivefold increase in the sales of Abrau-Dyurso wine products.
Entrepreneurial talent
Further in business, Boris Titov moved to a new level of development so much that in 2006 his financial condition estimated at $ 1.03 billion. It did not stand still and political career... About a year later, the well-known businessman was elected to the Supreme Council of the United Russia party, and three years later, Boris Yuryevich Titov joined the leadership of the Just Cause party.
2010 was marked by the election of Boris Titov as the head of the Council of the Union of Russian Winegrowers and Winemakers. At the same time, the businessman acquires from the world producer of sparkling wines of the Moet & Chandon brand the old and quite good-quality Chateau d'Avize winery. Such a purchase cost about ten million dollars.
Entrepreneurial acumen seen and appreciated
In 2012, Boris Titov was elected Business Ombudsman. He was not only noticed, but also remembered by many, thanks to his initiative activities aimed at protecting the rights of the class of Russian entrepreneurs.
The amnesty for businessmen (2013) was considered especially striking, under which 2,466 people were lucky to fall. But, of course, it is simply impossible to pay due attention to all matters with such busyness. And therefore, due to Boris's accession to the post, I had to move somewhat away from business management. As a result, the leadership of "Abrau-Dyurso" passed to his son Pavel.
Broad business income
As you know from the declared income of Boris Titov, the annual revenue from wine enterprises is $ 150 million. There is also additional income from the nearby hotel. The number of those wishing to relax in a beautiful place overlooking the lake reaches 130 thousand people annually. And this is only the main asset, in addition to which the Titov family has a poultry farm in the city of Rzhev and also an office center in Moscow.
How the "Party of Growth" appeared
Boris, heading the Supreme Council of the Democratic Party of the Russian Federation, called Civil Power, set about creating a new legal structure in Russia. This his brainchild was assessed by the press as a "Kremlin project". However, November of that year brought the dissolution of Civil Force and the Union of Right Forces, as a result of which a new party of Boris Yuryevich Titov, Just Cause, was established.
Three of its co-chairs were approved at the congress: Leonid Gozman, Boris Titov himself and journalist Georgy Bovt. Well, in 2016 Boris Yuryevich became the head of the Just Cause party. As a result, it was renamed and became known as "Party of Growth".
During his work, Titov was awarded more than once for his operational work. On August 25, 2008, by the Decree of the President of the Russian Federation, he was awarded the Order of Merit to the Fatherland, in 2010 - the Stolypin Medal (the highest award of the Government of the Russian Federation) and in 2015 the entrepreneur received the Order of Honor.
Post activities
What was the activity of Boris Yuryevich as a business ombudsman? Boris Titov, the Presidential Commissioner, coordinated issues related to inspections and, as a rule, property rights. As he himself explained to the media, their team is doing everything in their power to ensure that not only systemic problems are solved, but also each individual case is considered.
As the Commissioner for the Protection of the Rights of Entrepreneurs, Titov often held meetings with businessmen from different regions of the country. At such meetings, common for all were discussed concerning transportation, private pharmaceuticals and medicine, procurement procedures and others.
Experience gained from personal practice
When Boris Titov is asked why he was appointed the Ombudsman for Entrepreneurs in Russia, his answer puts all the dots on the i's. This is not the first time their party has tackled this problem, he says. Since its inception, their group has actively stood up to defend the rights of domestic entrepreneurs, perceiving them as their comrades-in-arms and colleagues.
More than once the representatives of the new organization had to bother the president (at that time he was the prime minister) regarding the problems of individual entrepreneurs. And in some isolated cases, the aforementioned member of the government had to intervene.
Overdue decision
And then, just over a year ago, the Commissioner for the Rights of Entrepreneurs Boris Titov and his team came to the conclusion that it is necessary to organize systematic work in the human rights sphere. After a matured decision, the Center for Public Procedures, called "Business against Corruption", was created.
Here they are fighting for the rights of entrepreneurs and businessmen in two important areas at once. First of all, this is to ensure the protection of specific people who have fallen into the millstones of criminal prosecution. And the second equally important matter is the elimination of loopholes in the legislation that are used by corrupt officials and other unscrupulous officials, and, of course, the subsequent development of more advanced clauses of legislation on these issues.
Local representatives
Boris Titov believes that every region and region of the country should have its own ombudsman. These will be correspondingly slightly different, but nonetheless unprecedented powers. Such representatives will also have the right to submit applications to the courts on their own behalf and to terminate certain state acts. This is a very important stage in the work of the new party.
By the way, now, in order to apply for protection from illegal actions, it is not necessary to go to the capital, since there is also Boris Titov's "reception" on the Internet. Sites on which you can leave a statement or complaint are called "Business Ombudsman", "Persons of power", "Rapsi" and these are just some of the most famous.
Why is it important
Giving an interview to the press, Boris Yuryevich explained his position russian citizens... According to him, their activities for the state may seem far from the most important. After all, they provide assistance to individual entrepreneurs, and these are the most ordinary people, and not those who are in sight and heard, and who are considered to be creating the economic power of the country. Their assistance is aimed at businessmen in the regions who have created small and medium-sized enterprises, and who are really the platform of the country's economy. So far, there are not so many of them, and often the reason for this is that they are greatly offended. And therefore, the main direction in the work of this figure is the protection of entrepreneurs, especially in those cases when officials are trying or, even more so, have already taken away their business. In general, businessmen, whose rights are undeservedly violated, can count on protection, and even put these people in prisons.
Modern today
Previously, which is no secret to anyone, unscrupulous officials persecuted entrepreneurs for bribes, but today their appetites have grown so much that their goal is to seize the business completely, for this they are trying to constantly attack it.
Titov's party will work with both foreign investors and large companies. Their plans also include the introduction of some changes to the legislation. The team plans to exercise control in both the tax and tariff areas and, in addition, oversee the procedure for allocating land. And for each of the listed areas, public ombudsmen will be appointed.
Conclusion
Boris Yuryevich Titov is an accomplished successful businessman and politician who, not in words, but from his own experience, experienced what obstacles can sometimes stand in the way of medium and small businesses. And it was not in vain that he was chosen to the post of the President's Commissioner for the Rights of Entrepreneurs. After all, Boris Titov is an active and purposeful person, a successful businessman who managed to become a billionaire.
