Right
/ 8. Constitutional law
associate professor, Cand.Jur.Sci., Guseva A.,
associate professor, Cand.Jur.Sci., Danilova V.
Penza state university, Russia
Protection of freedom of business activity in the
Russian Federation: to problem statement
Relevance of the presented subject is defined by its
importance, as in theoretical, and on the practical level. Modern legal, political and socially -
economic conditions of development of the market relations, realization of a
constitutional law on freedom of business activity, an obstacle and violation
in this process put before jurisprudence, in particular, a constitutional law,
a number of the specific objectives connected with need of research of an order
and opportunities of protection of the right for a freedom of enterprise.
It is necessary to consider that the state which has
proclaimed at the constitutional level the right for freedom to business
activity, being today the most important element of economic system of the
country, has to have the necessary mechanism of protection of this right,
including a sufficient arsenal of guarantees, means, ways, protection forms,
and in case of need to improve the available human rights mechanism. Besides, taking into account the
constitutional component of the right for freedom of business activity and
special importance for the state of its protection, the speech has to go about
a constitutional legal mechanism.
The central place in research of the designated
mechanism belongs to the Constitutional Court of the Russian Federation.
However, along with activity of the Constitutional Court of the Russian
Federation, the speech also goes about use in modern conditions of all capacity
of institutes of the state and civil society. That in turn has to pursue the
aim of creation of such social, economic, legal, financial and other conditions
which would guarantee freedom of economic activity, freedom of business
activity, stimulated enterprise activity, in the maximum degree realization of
a constitutional law on a freedom of enterprise promoted.
All aforesaid caused need of research of a role of the
state which can't be belittled and belittled today [6.C.63], and also public
associations and organizations in constitutionally – a legal mechanism of
protection of the right for freedom of business activity [3.C.27].
State mechanism of protection of a constitutional law
of business activity is multidimensional, it combines human rights activity of
judicial system, public authorities, bodies of prosecutor's office, the
Commissioner for Human Rights, public human rights organizations, also a human
right most to protect the rights. Not
always also in scientific researches level of the constitutional sense of
justice of the persons which are carrying out human rights activity in the
Russian Federation [4.C.32] though, in our opinion, you shouldn't belittle a
role of this making is considered.
It should be noted that at rather effective ensuring
provisions of the Country constitution with practice of the Constitutional
Court of the Russian Federation, it is represented, however, that these
measures now insufficiently. In the
light of the last transformations of formation and realization of a
constitutional law on freedom of business activity bodies of prosecutor's
office of the Russian Federation are urged to play a special role. The legislator with acceptance in recent
years it is standard - legal acts I defined a new place of public prosecutor's
supervision in formation of the enterprise relations in Russia, development of
medium and small business.
It is staticized in the light of the last offers from
public authorities activity of new specialized human rights institute - the
Representative on protection of the rights of businessmen, and also public
associations and the organizations which control is directed on protection of
the studied right. In our opinion, these changes couldn't but affect on
constitutionally – a legal mechanism of protection of the right for freedom of
business activity. They cause need of specification of scientific ideas of the
nature and nature of public prosecutor's supervision for the mechanism of
protection of this constitutional law, about its interrelation with other human
rights bodies and public organizations.
Introduction of institute of the Representative on
protection of the rights of businessmen also is one of the priority directions
of research of a constitutional legal mechanism of protection of freedom of
business activity. Emergence of a new element in the protection mechanism on
the one hand, can generate problems and difficulties in competence
differentiation between adjacent links, with another, interesting the trust of
citizens and realization of powers of the business ombudsman on protection of
the right for freedom of business activity is represented.
Now concerning
legislative regulation of functioning of this human rights Federation Council
Committee institute by the constitutional legislation, legal and judicial
questions, development of civil society I considered the Federal law "About
modification of the Federal law "About representatives on protection of
the rights of businessmen in the Russian Federation" and separate acts of
the Russian Federation".
The document was rejected by the Federation Council on
July 10, 2013 in connection with the provisions containing in it contradicting
the constitutional principle of independence of local governments. As a result,
chambers of Federal Assembly of the Russian Federation created conciliation
commission which developed the uniform text of the law.
"The law is adopted in edition of conciliation
commission, all disagreements on this matter" [5] are eliminated – the
chairman of Committee Andrey Klishas declared at meeting. According to him now
powers of the business ombudsman are correctly formulated, acts of local
governments can stop the representative, but the total decision will be made by
court.
In the general understanding, relevance of activity of
the Representative on protection of the rights of businessmen exists and it is
very great, especially, in the conditions of imperfection law-enforcement
systems. Besides similar institutes and very effectively work for a long time
at the international level, in the countries with more developed law and order.
On a plan of introduction of this Ombudsman institute
has to receive the special procedural status - opportunity to defend the rights
of businessmen in court, to consider their complaints, to make offers in public
authorities and to have other quite large powers. Representatives of business,
in particular, insist that by the rights of businessmen the person independent
of the government [2] has to be authorized, and have the right to stop
inefficient unreasonable measures of regulating influence for 45 days or in
general to cancel them [7].
Pertinently to assume that activities of
Representatives for protection of the rights of businessmen at all levels of
our federal state should be built proceeding from need of achievement of one
purpose – protection of a constitutional law on freedom of business
activity. This construction has to
take place in an accurate legal framework and in close interaction with public
associations and the unions of businessmen, and also with law enforcement
agencies.
Actions on the following questions can become very
effective directions in interaction of the Representative on protection of the
rights of businessmen with law enforcement agencies, in particular, with
prosecutor's office: to exchange of information about violations of basic
rights and personal freedoms in the sphere of implementation of business
activity; consideration at joint meetings of results of work on protection of
the rights of businessmen; drawing up plans of joint actions for interaction
strengthening on law-enforcement practice; studying with departure in separate
subjects of the Russian Federation or municipalities of the reasons of mass
violations of realization of the right for freedom of business activity;
entering into government bodies of joint offers of the general character,
relating to ensuring the rights and freedoms of businessmen; entering of joint
statements into mass media about rough violations of the rights of businessmen;
probably, also carrying out on these questions of joint scientific and
practical conferences with attraction of the general public.
Literature:
1. The constitution of the Russian Federation of
12.12.1993 (in an edition of 30.12.2008)
2. Business asked freedoms. // Russian newspaper.
State. No. 5752 (79) 11.04.2012ã.
3. Grudtsyna L.Yu. Petrov S. M. Civil society as
social system: teoretiko-legal aspects of interaction with the state. // Modern
right. 2012 . No. 3. Page 27
4. Kerimov A.D. Strategic miscalculations of the
Russian political elite. – M.: Norm: INFRA-M, 2011 of Page 32-35.
5. Klishas A.A.: All disagreements under the law on
the business ombudsman are eliminated. 30.10.2013. News. Federation Council of
Federal Assembly of the Russian Federation. http://mobile.council.gov.ru/press-center/news/36338/
6. Lukasheva E.A. Improvement of activity of the state
- a necessary condition of ensuring human rights//the State and the right. 2005
. No. 5. Page 63.
7. Halfina S. M. Business ombudsman: what it has to
be? // official site "SUPPORT of RUSSIA". 2013
http://opora.ru/legal/discussions/431/30668/