Suchergebnisse

Статья посвящена определению понятия сторон концессионного соглашения и анализу их правовой природы. Рассмотрены вопросы представительства концедентов в концессионных правоотношениях, а также возможные концессионеры. Проанализирован порядок перемены лиц по концессионному соглашению. Сформированы предложения по нормативному урегулированию выявленных пробелов законодательства. ; A concession agreement is a form of public-private partnership which nowadays has the leading role in attracting investments into the economy of the country. Under the concession agreement, the concessionaire constructs or reconstructs at its expense an infrastructure object which belongs (will belong) to the grantor. Meanwhile the concessionaire gets the right to operate this object within a certain period of time. The concession agreement parties are defined in the article, as well as their legal nature is analyzed. The concession agreement parties are the grantor and the concessionaire. The grantor can be the Russian Federation (with respect to the federal property), the federal subjects of the Russian Federation (with respect to the property of the entity of the Russian Federation) or municipalities (with respect to the municipal property). The Russian Federation, the entities of the Russian Federation and the municipalities are equal with the concessionaire in the concession relationships. Thus, they are subject to the rules determining participation of legal entities in civil legal relations. The concessionaire can be an individual entrepreneur, a Russian or foreign legal entity or two or more entities acting under a contract of partnership (the joint venture agreement). The author of the article considers the representation of the grantor in the concession relationships. The Russian Federation as the grantor is represented by the government of the Russian Federation or the authorized federal executive body. The subject of the Russian Federation is represented by the body of state power of the subject of the Russian Federation. The municipal entity is represented by the local authority. Individual rights and obligations of the grantor may be exercised by the bodies and legal entities authorized by the grantor, for example, by state (municipal) unitary enterprises. The author has made the conclusion that the legal nature of the relationships between the grantor and the person acting on its behalf can be defined as representation. This conclusion is based on the analysis of legislation and law enforcement practice. The grounds and procedure for changing of parties under the concession agreement are analyzed in the article. Special attention is given to the substitution of the concessionaire by way of assignment or transfer of a debt; the substitution of the concessionaire, a legal entity, in case of its reorganization; the substitution of the concessionaire in case of default (improper) execution of its obligations to the creditor; the substitution of the concessionaire on the basis of the decision of the executive body; the transfer of the ownership of the object of the concession agreement to another owner. As a result, some proposals on the legal regulation of the identified gaps in legislation are made in the article.

Статья посвящена определению понятия концессионного соглашения и анализу его правовой природы. Рассмотрены договоры, элементы которых могут содержаться в концессионном соглашении. Произведено сравнение концессионных соглашений со смешанными договорами, исследуются их юридические характеристики, а также правовые проблемы, возникающие при определении отраслевой принадлежности. ; The concession agreement is a form of public-private partnership which nowadays has the leading role in attracting investments into the economy of the country. The definition of the concession agreement is not new for Russian law. The concession agreement originated from a lease of the tsarist Russia. Concessions were also applied in pre-revolutionary Russia and Soviet Russia during the new economic policy. Foreign concessions had a special importance for the development of the country economy. Concession agreements have been actively used in the modern Russian law since the federal law on concession agreements was adopted. Under the concession agreement, the concessionaire (private investor) constructs or reconstructs at their expense the infrastructure object which belongs (will belong) to the grantor (state, municipality). Meanwhile the concessionaire gets the right to operate this object within a certain period of time. The concession agreement is a contract containing elements of different contracts. However, there is no list of any types of such contracts in the legislation. This article is concerned with the contracts whose elements are included in concession agreements at different stages of their implementation. Special attention is given to work contracts and those of tenancy. At the stage of creation and (or) reconstruction of the concession agreement object the rules of the civil law on a work contract shall be used. During the operation phase of the concession agreement object the rules of the civil law on the lease shall be used. Concession agreements are compared with mixed ones. As a result, it is concluded that a concession agreement is not a mixed one, but it is an independent type of contract, while the combination of the components of other types of contracts is the hallmark of any concession agreement. The legal characteristics of the concession agreement are defined as consensual, urgent, mutual, reimbursable and bilateral. Some legal problems encountered in the definition of concession agreement legal nature are examined in this article, and three basic relevant theories are covered. According to these theories, the legal nature of concession agreements is defined as: (1) a mixed public-private contract (the contract of a special kind); (2) a public (an administrative) contract; (3) a civil contract. The definition of the legal nature of concession agreements has a great practical importance, for instance, when determining how to protect the violated rights of the parties to the agreement. That is why in the article special attention is paid to the study of this issue. The concession agreement has both civil law and public law features. These characteristics are also analyzed in the article. Thus, the author comes to a conclusion concerning the civil-legal nature of concession agreements. The author's arguments are based on the law in force and the current enforcement practice. According to the results of the research some proposals to improve concession legislation are formed. They are as follows: to complete the approximate concession agreement; to secure the independence of the concession agreement as a form of contract; to determine its civil legal nature.