§four. State control (supervision), municipal control in the region trading activities
Clause 4 of Part 1 of Article 4 of the Law erroneously classifies municipal control in the field of trading activities as a method state regulation. Being the activities of local governments authorized to organize and conduct inspections of compliance with the requirements established by municipal legal acts (Article 2 of the Federal Law "On the Protection of the Rights legal entities and individual entrepreneurs when exercising state control (supervision) and municipal control"), municipal control is an element of the system of municipal regulation, which is strictly separated from state regulation (Articles 12, 130 - 133 of the Constitution of the Russian Federation, Article 1 of the Federal Law of 06.10.1999 N 184-FZ " About general principles organizations of legislative (representative) and executive bodies state power subjects Russian Federation", Articles 1 and 4 of the Federal Law of October 6, 2003 N 131-FZ "On the General Principles of the Organization of Local Self-Government in the Russian Federation").
As for state control (supervision) in the field of trading activities as a method of state regulation, the basic principles for its implementation (carrying out control and supervisory measures) are set out in Article 16 of the Law, since the norms of this article contain references to the "legislation of the Russian Federation", then state control (supervision) in the field of trading activities is organized and carried out in accordance with the Federal Law of December 26, 2008 N 294-FZ "On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control" and others federal laws included in the legislation on state control (supervision).
In fact, the list of methods of state regulation of trading activity is much wider than that given in Part 1 of Article 4 of the Law. In this regard, the prohibition on the use of other methods formulated in Part 2 of Article 4 of the Law seems not only incorrect, but also erroneous, especially considering the construction used to describe it. If part 2 of article 4 of the Law provided for a reference to other federal laws in order to determine the legality of using other methods of state regulation not named in part 1 of article 4 of the Law for state regulation of trading activities, then it could be criticized for the alleged closure of the list of methods of state regulation trading activities. However, Part 2 of Article 4 of the Law refers to other federal laws not as sources containing methods of state regulation additional to those specified in Part 1 of Article 4 of the Law, but as sources that determine the cases of application of other methods not provided for by Part 1 of Article 4 of the Law.
As for other methods of state regulation of trade activities (licensing of trade certain types goods, price regulation in other forms (setting minimum prices, marginal trade markups, etc.)). Their application is not conditioned by any cases in the relevant federal laws, but is envisaged as a way of influencing relations in general in order to achieve the goals proclaimed in these laws.
In the final version of the Law, Part 2 of Article 4 looks meaningless from a logical point of view (this method does not exhaust the list of methods of state regulation of trading activities) and redundant and incorrect from a legal point of view. The prohibition, firstly, on the use of methods of state regulation that restrict the rights and freedoms of citizens and their associations, if such are not provided for by federal laws, is actually formulated in the Constitution of the Russian Federation (part 3 of article 55) and the Civil Code of the Russian Federation (paragraph 2 of article 1). Secondly, the sources of methods of state regulation are not only federal laws, but also federal constitutional laws (for example, a significant set of measures of state regulation, the right to use which, without the need for any correspondence with federal laws, is provided for by the Federal Constitutional Law of 17.12. 1997 N 2-FKZ "On the Government of the Russian Federation", not to mention the measures of state regulation of the economy provided for by the Federal constitutional laws of 30.05.2001 N 3-FKZ "On a state of emergency", of 30.01.2002 N 1-FKZ "On military position").
Therefore, the absolutization of the list of methods of state regulation provided for by the Law as definitely finite and limiting it only to those methods that are provided for by federal laws should be abandoned. From the point of view of dialectics, the legislator's statement that he has formed an exhaustive list of methods of state regulation and that this should guarantee the predictability and stability of state policy in this area to trade looks rather pretentious. A coherent and exhaustive classification of all elements of the state regulation system has not yet been formed and described in principle. The set of means of state regulation, which, for example, can be implemented by the Government of the Russian Federation in accordance with the Federal constitutional law of December 17, 1997 N 2-FKZ "On the Government of the Russian Federation", is described in such broad language that it statutory and other federal laws decisions (for example, within the framework of taking measures to implement the state structural and investment policy, measures to protect the interests of domestic producers of goods, contractors of works and services).
2.1 The value of the minimum wage in the Russian Federation In Russia minimum size wages or minimum wage - a statutory minimum used to regulate wages ...
Employee pay guarantees
The main body exercising supervision and control over compliance labor law, is the Federal Labor Inspectorate (Article 354 of the Labor Code of the Russian Federation). The procedure for such control is enshrined in Ch. 57 of the Labor Code of the Russian Federation. In addition, until July 1, 2009...
State system Education Administration of the Russian Federation
State control (supervision) in the field of education includes: 1. Federal state control of the quality of education; 2. Federal state supervision in the field of education ...
State and municipal financial control in the Russian Federation
State and municipal control is carried out by a whole system of bodies functioning both at the level of the Russian Federation, subjects of the Russian Federation, and at the level municipalities. Allocate different kinds state and municipal control...
State supervision and public control over compliance with labor law in the Russian Federation
The state as a participant in housing legal relations
State control over the use and safety of the housing stock, regardless of its form of ownership ...
Protection labor rights
1. State supervision and control over compliance with labor legislation in the field of protection of labor rights State supervision and control should take leading place while protecting the labor rights of workers...
Protection of labor rights of employees
One of the active ways to protect the labor rights of workers and prevent labor offenses is state supervision and control and public control over compliance with labor laws, labor protection ...
Supervision and control in the field labor relations
Legal basis state (municipal) financial control
The need for financial control is due to one of the functions of finance - control ...
The problem of relations between the state and public associations in Russia
In accordance with Article 38 of the Federal Law "On Public Associations", the Prosecutor's Office of the Russian Federation supervises the observance of laws by public associations, pp. 14-15. Organ...
Problems of organizing trading in the Russian Federation
In the context of the formation of the rule of law, the development of a democratic society and the evolution market relations great relevance and practical value acquires the Institute of Public Procurement...
Certification and standardization
Standardization - the activity of establishing rules and characteristics for the purpose of their voluntary reuse ...
State supervision and control over compliance with labor legislation in the Russian Federation is carried out by various state bodies, primarily the federal labor inspectorate ...
Characteristics and causes labor disputes
One of the main ways to protect the labor rights and legitimate interests of employees is state supervision and control over compliance with labor laws...
On the basics of state regulation of trade activities in the Russian Federation
Chapter 3. Antimonopoly regulation, state control (supervision), municipal control in the field of trading activities
Article 13
1. Business entities engaged in trading activities for the sale food products through the organization trading network, and business entities that supply food products to retail chains are prohibited from:
1) create discriminatory conditions, including:
a) create obstacles to access to the commodity market or exit from the commodity market of other economic entities;
b) violate the pricing procedure established by regulatory legal acts;
2) impose conditions on the counterparty:
a) on a ban on the conclusion by an economic entity of contracts for the supply of food products with other economic entities engaged in similar activities, as well as with other economic entities on similar or other conditions;
b) on liability for failure to fulfill the obligation of an economic entity to supply food products on terms that are better than the conditions for other economic entities engaged in similar activities;
c) on the provision by an economic entity to the counterparty of information on the agreements concluded by this economic entity with other economic entities engaged in similar activities;
d) on the payment by an economic entity supplying food products of a fee for the right to supply such goods to an economic entity engaged in trading activities through the organization of a trade network, in functioning or opening trade facilities;
e) on the payment by an economic entity of a fee for changing the range of food products;
f) on the reduction by an economic entity supplying food products of their price to a level that, subject to the establishment of a trade markup (margin) to their price, will not exceed the minimum price of such goods when they are sold by economic entities engaged in similar activities;
g) on compensation by an economic entity supplying food products for losses in connection with the loss or damage to such goods after the transfer of ownership of such goods, except in cases where the loss or damage occurred due to the fault of an economic entity supplying such goods;
h) on reimbursement by an economic entity of costs not related to the execution of a contract for the supply of food products and the subsequent sale of a specific batch of such products;
i) on the return to an economic entity that has supplied food products of such goods that have not been sold after a certain period of time, except in cases where the return of such goods is allowed or provided for by the legislation of the Russian Federation;
j) other conditions, if they contain essential features of the conditions provided for in subparagraphs "a" - "i" of this paragraph;
3) exercise wholesale trade using a commission agreement or a mixed agreement containing elements of a commission agreement.
2. An economic entity has the right to provide evidence that its actions (inaction) specified in part 1 of this article (except for the actions specified in clause 2 of part 1 of this article) can be recognized as admissible in accordance with the requirements of part 1 of article 13 of the Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (hereinafter referred to as the Federal Law "On Protection of Competition").
Article 14
1. An economic entity that carries out retail food products through the organization of a trading network (with the exception of agricultural consumer cooperative, consumer cooperation organizations) and whose share exceeds twenty-five percent of the volume of all food products sold in monetary terms for the previous fiscal year within the boundaries of a constituent entity of the Russian Federation, including within the boundaries of the federal city of Moscow or St. Petersburg, within the boundaries of a municipal district, urban district, is not entitled to acquire or lease, within the boundaries of the corresponding administrative-territorial formation, an additional area of retail facilities for carrying out trading activities for any grounds, including as a result of the commissioning of retail facilities, participation in tenders held for the purpose of their acquisition.
2. A transaction made in violation of the requirements provided for by part 1 of this article is void. The requirement to apply the consequences of the invalidity of such a transaction may be brought to court by any stakeholder, including the federal executive body that exercises the functions of adopting regulatory legal acts and monitoring compliance with antimonopoly laws.
Article 15
State authorities of the constituent entities of the Russian Federation, local governments, other bodies or organizations exercising the functions of these bodies are prohibited from adopting acts and (or) carrying out actions (inaction) that lead or may lead to the establishment of rules for trading activities on the commodity market that differ from similar the rules established by federal laws and other regulatory legal acts of the Russian Federation, in particular, it is prohibited:
1) imposing on economic entities engaged in trading activities, economic entities engaged in the supply of goods, the obligation to participate in a repeated (additional in relation to that carried out in accordance with federal laws) inspection of the quality and safety of goods, in a regional or municipal system the quality of goods, except for cases where such an obligation is transferred to state authorities of the constituent entities of the Russian Federation, local governments in the prescribed manner;
2) forcing economic entities engaged in trading activities, economic entities supplying goods to participate in the passage of control and (or) licensing procedures established by regulatory legal acts of the constituent entities of the Russian Federation, municipal legal acts in addition to the procedures provided for by federal laws and which are conditions organization and implementation of trade activities on the territory of a constituent entity of the Russian Federation or a municipality (attestation of trade facilities, accreditation of business entities, certification of goods, compliance of trade facilities with the requirements of the legislation of the Russian Federation);
3) forcing economic entities engaged in trading activities, economic entities supplying goods to sell goods at prices determined in the manner established by the executive authorities of the constituent entities of the Russian Federation (except for cases where such authorities, in in due course have the right to carry out state regulation of prices for goods) or local governments;
4) adoption of other regulatory legal acts, decisions providing for:
a) establishment of bans or restrictions on the free movement of goods between constituent entities of the Russian Federation, between municipalities within the boundaries of a constituent entity of the Russian Federation;
b) the introduction of restrictions on the sale of certain types of goods in the territories of the constituent entities of the Russian Federation, the territories of municipalities within the boundaries of the constituent entities of the Russian Federation;
c) forcing economic entities engaged in trading activities to conclude, as a matter of priority, contracts for the supply of goods with certain economic entities engaged in the supply of goods, and for economic entities engaged in the supply of goods to conclude, as a matter of priority, contracts for the supply of goods with certain economic entities engaged in trade activity;
d) establishing for economic entities engaged in trading activities, restrictions on the choice of economic entities engaged in the supply of goods, and for economic entities supplying goods, restrictions on the choice of economic entities engaged in trading activities;
e) discrimination against economic entities engaged in trading activities, economic entities supplying goods, in providing access to transport and infrastructure facilities.
Article 16
1. State control (supervision) over compliance with the requirements of this Federal Law, municipal control in the field of trading activities shall be carried out in accordance with the legislation of the Russian Federation.
2. State control (supervision) over compliance with the antimonopoly rules and requirements provided for in Articles 13 - 15 of this Federal Law is carried out by the federal executive body in charge of adopting regulatory legal acts and monitoring compliance with antimonopoly legislation, and its territorial bodies with the right to issue relevant instructions in the manner and within the powers established by the antimonopoly legislation of the Russian Federation.
3. federal body of the executive branch, which performs the functions of adopting regulatory legal acts and monitoring compliance with antimonopoly legislation, and its territorial bodies, upon revealing violations of antimonopoly rules and requirements provided for in Articles 13-15 of this Federal Law, take measures in accordance with the Federal Law "On Protection of Competition" .
State control (supervision), municipal control in the field of trading activities
Clause 4 of Part 1 of Article 4 of the Law erroneously classifies municipal control in the field of trading activity as a method of state regulation. As an activity of local governments authorized to organize and conduct inspections of compliance with the requirements established by municipal legal acts (Article 2 of the Federal Law "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of State Control (Supervision) and Municipal Control"), municipal control is an element system of municipal regulation, which is strictly separated from state regulation (Articles 12, 130 - 133 of the Constitution of the Russian Federation, Article 1 of the Federal Law of October 6, 1999 N 184-FZ "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" , articles 1 and 4 of the Federal Law of October 6, 2003 N 131-FZ "On the general principles of organizing local self-government in the Russian Federation").
As for state control (supervision) in the field of trading activities as a method of state regulation, the basic principles for its implementation (carrying out control and supervisory measures) are set out in Article 16 of the Law, since the norms of this article contain references to the "legislation of the Russian Federation", then state control (supervision) in the field of trading activity is organized and carried out in accordance with the Federal Law of December 26, 2008 N 294-FZ "On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control" and other federal laws included in composition of legislation on state control (supervision).
In fact, the list of methods of state regulation of trading activity is much wider than that given in Part 1 of Article 4 of the Law. In this regard, the prohibition on the use of other methods formulated in Part 2 of Article 4 of the Law seems not only incorrect, but also erroneous, especially considering the construction used to describe it. If part 2 of article 4 of the Law provided for a reference to other federal laws in order to determine the legality of using other methods of state regulation not named in part 1 of article 4 of the Law for state regulation of trading activities, then it could be criticized for the alleged closure of the list of methods of state regulation trading activities. However, Part 2 of Article 4 of the Law refers to other federal laws not as sources containing methods of state regulation additional to those specified in Part 1 of Article 4 of the Law, but as sources that determine the cases of application of other methods not provided for by Part 1 of Article 4 of the Law.
As for other methods of state regulation of trade activities not named in part 1 of article 4 of the Law (licensing of trade in certain types of goods, price regulation in other forms (setting minimum prices, marginal trade markups, etc.)). Their application is not conditioned by any cases in the relevant federal laws, but is envisaged as a way of influencing relations in general in order to achieve the goals proclaimed in these laws.
In the final version of the Law, Part 2 of Article 4 looks meaningless from a logical point of view (this method does not exhaust the list of methods of state regulation of trading activities) and redundant and incorrect from a legal point of view. The prohibition, firstly, on the use of methods of state regulation that restrict the rights and freedoms of citizens and their associations, if such are not provided for by federal laws, is actually formulated in the Constitution of the Russian Federation (part 3 of article 55) and the Civil Code of the Russian Federation (paragraph 2 of article 1). Secondly, the sources of methods of state regulation are not only federal laws, but also federal constitutional laws (for example, a significant set of measures of state regulation, the right to use which, without the need for any correspondence with federal laws, is provided for by the Federal Constitutional Law of 17.12. 1997 N 2-FKZ "On the Government of the Russian Federation", not to mention the measures of state regulation of the economy provided for by the Federal constitutional laws of 30.05.2001 N 3-FKZ "On a state of emergency", of 30.01.2002 N 1-FKZ "On military position").
Therefore, the absolutization of the list of methods of state regulation provided for by the Law as definitely finite and limiting it only to those methods that are provided for by federal laws should be abandoned. From the point of view of dialectics, the legislator's statement that he has formed an exhaustive list of methods of state regulation and that this should guarantee the predictability and stability of state policy in this area to trade looks rather pretentious. A coherent and exhaustive classification of all elements of the state regulation system has not yet been formed and described in principle. The set of means of state regulation, which, for example, can be implemented by the Government of the Russian Federation in accordance with the Federal constitutional law of December 17, 1997 N 2-FKZ "On the Government of the Russian Federation", is described in such broad language that it allows making decisions not provided for by law and other federal laws (for example, within the framework of taking measures to implement the state structural and investment policy, measures to protect the interests of domestic producers of goods, contractors of works and services).