ISSUES OF IMPLEMENTING THE CONSTRUCTION «LEGAL ENTITY OF PUBLIC LAW»
Journal Title: Право та інновації - Year 2016, Vol 4, Issue 16
Abstract
Problem setting. One of the controversial issues of modern civil law is not only recognition of a legal entity as a member of civil relations, but the existence of appropriate structure in general. Recently the idea of including a legal entity of public law into the system of civil law subjects has been supported. This idea found its consolidation in the provisions of the Civil Code of Ukraine. However, the relative construction has not got its detailed reasoning of expediency to be used within civil relations. Analysis of recent researches and publications. Nowadays there are two opposite approaches to the recognition of the expediency to use the construction of «legal entity of public law». Some experts argue that it should be used in civil law (O. O. Pervomaiskyi, R. B. Sabodash, V. Ye. Chyrkyn, etc.), others – strongly deny this (S. M. Bratus, V. A. Bielov, Ye. O. Sukhanov, etc.). However, the works of these scholars do not provide a clear answer to the question of whether it is appropriate to single out a legal entity as an independent subject within civil relations along with a legal entity of private law. Target of research. As a result of the existing problems there is a necessity to outline the issues of recognition of a legal entity of public law as a participant of civil relations. Article’s main body. One of the urgent issues of separation of legal entities into those of private and public law is the criterion of relevant division. Regarding its election it has to be noted in the Civil Code of Ukraine that it, first of all, should be considered not the procedure, but the objective of creation, and the scope, where any entity can act. Attention is paid to the interest during the establishment of legal entities. Despite the fact that the founder of legal entities of public law is the state legally represented by some agencies, where the interest is the same as in the creation of a legal entity of private law – the interest of the state, the legal entity, the interest of the society. Hence, legal entities of public law have no differences from legal entities of private law, since they act including according to their own (private) interest. Therefore, there is an inconsistence – the existence of public and legal status and, simultaneously, the private interest within legal entities. The state puts itself in a privileged position in the corporate relations, obliging legal entities of private law – corporations to distribute profits on the mandatory basis, despite the fact that the norms of corporate legislation provide binding decision on its distribution only at the general meeting of the corporate company. Our opponents may indicate that other participants (shareholders) of a business entity, which has corporate rights of the state in the authorized capital, receive dividends under the distribution of profits. However, why do the relevant norms are not applied to the rest of corporate companies, which do not have corporate rights belonging to the state in their authorized capital? Whether joint stock companies with the state share and corporations without such a share are different companies? Hence, we have more questions than answers. Despite the complexity and ambiguity of civil relations involving legal entities of public law, the current Ukrainian legislation does not regulate the features of such participation with the anticipation of certain means and guarantees of individual’s rights in these relations. Conclusions and prospects for the development. Only those organizational and legal forms of legal entities should remain in civil law that can be created by individuals. This of course does not exclude the possibility of participation of legal entities of public law in the creation of legal entities of private law such as a joint-stock company or limited liability company. However, in this case, the state and its agencies will participate as individuals, fully responding the principle of civil law on their equal participation in private and legal relations.
Authors and Affiliations
Y. M. Zhornokui
Keywords
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