On the model of public entitties participation in civil relations in terms of the legal positions of the Constitutional Court of the Russian Federation

Статья посвящена проблеме изменения Конституционным судом РФ модели участия публично-правовых образований в гражданских отношениях на примере внедоговорных обязательств, возникающих между государством и физическими лицами. С этой целью проведено исследование законодательной модели участия государства в частных отношениях, закрепленной в ст.2, 125 Гражданского кодекса РФ, и правовых позиций Конституционного суда РФ, сформированных в Постановлениях КС РФ от 22.06.2017 №16-П и от 08.12.2017 №39-П. В результате автор приходит к выводу о том, что действующая легальная модель участия публично-правовых образований в гражданских отношениях не предусматривает каких-либо исключений для внедоговорных обязательств, возникающих между государством и физическими лицами.

Наоборот, законодатель последователен в решении вопроса о том, какие органы государства и при каких условиях способны реализовать гражданскую правосубъектность последнего. Изменение указанной модели Конституционным судом РФ посредством расширения перечня органов, способных создавать для публичных образований правовые последствия, без учета объема их компетенции, а также различий между федеральными органами власти и органами государственной власти субъектов РФ является преждевременным и требует тщательного изучения и проработки.

Ключевые слова: публично-правовые образования, орган государственной власти, государственный орган, гражданская правосубъектность государства, модель участия, гражданские отношения, регистрирующие органы, налоговые органы.

The common feature of the concepts “government bodies” and “state authorities” is their belonging to the category of bodies/agencies, typifying the structural unit of the state apparatus. As such, they possess an array of distinctive features:

1) the body is a part of the state apparatus;

2) it acts for and on behalf of the state;

3) it enjoys state power (has its own particular competence);

4) it has an internal organizational structure;

5) it uses specific forms and methods of activity.

The territorial scale of activity and declaration of the legal position of the body in regulatory acts can also be added to this list as optional features (Gabrichidze, 1982: 29; Bakhrakh, 1996: 84-84; Mitskevich, 2016: 138).

All these features of the government bodies are interconnected and interdependent, the bodies have an intrinsic set of the above-mentioned distinctive features, their inherent combination. However, the main attribute among them that defines the essence of the government body, its purpose, is the presence of state powers as regards a certain range of issues, i.e. competence.

In the end, a government body is a part of the state apparatus (an element of a higher-level system, i.e. the state), acting for and on behalf of the state and personifying state power.

Despite the existence of common features, the concepts of “government bodies and “state authorities” are not identical. The difference between them lies in the fact that the first embraces bodies belonging to this or that branch of state power, and the second - bodies not attributed to a particular branch of power (Chambers of Accounts, election commissions, prosecutor's office, etc.) (Mitskevich, 2016: 136-137).

As a consequence, it turns out that the legislator has demarcated the cases of implementation of the civil legal capacity of public entities by the considered bodies through the recognition of the government bodies' right to act according to Item 1 of Art. 125 of the Civil Code of the Russian Federation, i.e. generally within their competence, while the state authorities should follow Item 3 of Art. 125 of the Civil Code, in other words, in cases specifically provided for by the legislation and in the presence of a special assignment, yet, the motives of such a decision remain unclear.

In this regard, the question arises about the grounds for such a legislative approach, and the doctrine on it contains several assumptions. Most of the modern researchers are unanimous in the fact that Item 1 of Art. 125 of the Civil Code of the Russian Federation concerns the legal structure of the “body” of a public entity by analogy with the “body” of a legal entity (in the sense of Art. 53 of the Civil Code), and Item 3 of Art. 125 of the Civil Code delineates the relationship of representation, regulated by Chapter 10 of the Civil Code. On balance, it is concluded that in the first case the government bodies are not bound to have civil legal capacity, and in the second case, on the contrary, they should have the status of independent legal entities (Golubtsov, 2019: 70-71; Kravets, 2016: 36-39, etc.). To remove this contradiction, radically different solutions are proposed - from the exclusion of government bodies from Item 3 of Art. 125 of the Civil Code of the Russian Federation (Kravets, 2016: 39) to the legislative consolidation of the features of the government bodies' status when they participate in civil relations as legal entities (Golubtsov, 2019: 72).

Having agreed with the general conclusion about the types of legal structures established in Items 1 and 3 of Article 125 of the Civil Code of the Russian Federation, I believe that the answer to the posed question lies in another sphere. Indeed, Item 1 of Art. 125 of the Civil Code of the Russian Federation is about the legal structure of the “body” of a public entity similarly to the “body” of a legal entity, and Item 3 of Art. 125 of the Civil Code classifies the relations of representation, regulated by Chapter 10 of the Civil Code.

Legal grounds for such a conclusion are written in Item 2 of Art. 124 of the Civil Code, by force of which the rules regulating the participation of legal entities in relations governed by civil law are applied to public entities, too, unless otherwise follows from the law or peculiar characteristics of these subjects. According to Item 1 of Article 53 of the Civil Code, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in compliance with the law, other legal acts and charter documents. Since the content of this Item corresponds to the provisions of Item 2 of Art.

124 of the Civil Code, then Item 1 of Art. 53 of the Civil Code can be analogously applied to public entities, which is set out in Item 1 of Art.

125 of the Civil Code. This is explained by the fact that Item 1 of Art. 125 of the Civil Code of the Russian Federation sees government bodies as bodies of the Russian Federation and the subjects of the Russian Federation; it concerns such bodies which due to these circumstances cannot act as independent participants in civil relations, because it is through them the public entity itself enters into civil relations. public legal relation private state

Accordingly, Item 3 of Art. 53 of the Civil Code and Item 3 of Art. 125 of the Civil Code refer to the representatives of legal entities and public entities. Therefore, the relations arising between a public entity and such a representative should be covered by Chapter 10 of the Civil Code. But it is necessary to make a reservation that this provision is only for individuals and legal entities, which is quite logical. As for the state authorities, mentioned in Item 3 of Article 125 of the Civil Code, those which do not have any connection with the branches of state power cannot have any relations with the public entity due to the non-autonomous nature of the state authorities. In our opinion, Item 3 of Art. 125 of the Civil Code refers to such state authorities which are not supposed to participate in civil relations and which do not have such a right in their competence, therefore, in case of such a need the state may confer special powers on such bodies by issuing a corresponding act. In this sense, there is no contradiction, so, the government bodies and state authorities do not have an independent civil legal capacity, rather they are only capable of realizing the legal capacity of a public entity. In this regard, the difference between them is only in the scope of their competence: for the government bodies this eligibility is defined in the act on their status, while state authorities need special granting of power in cases established by law for their participation in civil relations. This granting of power stays within the “special assignment” formula.

Thus, the current civil legislation gives a clear structural model of public entities' participation in private relations, which can be expressed in the following aspects:

1) public legal entities can be recognized as participants of civil relations; the Russian Federation, the subjects of the Russian Federation, as well as municipal entities, are seen separately;

2) they can legally act as independent participants along with individuals and legal entities;

3) public legal entities are not equal to legal entities;

4) civil legal capacity of public legal entities is realised through the actions of government bodies within their general competence (Item 1 of Art. 125 of the Civil Code) or through the actions of the state authorities within the powers specially granted for this very purpose (Item 3 of Art. 125 of the Civil Code).

In any case, the substantial significance is displayed by the powers of a specific state authority, so the relations regulated by the civil legislation are characterized by the provision, due to which the actions of a public legal entity in the sphere of private law (the actions which are not within its competence) do not beget legal consequences for this public entity. It is for this reason that judicial practice attaches particular importance to the evaluation of the actions of the Russian Federation bodies and bodies of the RF subjects, since the actions of the authorized body only have legal consequences (cf., for example, Item 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On some issues related to the application of the rules of the Civil Code of the Russian Federation on the limitations of legal claims” No. 43 dated 29.09.2015, and Item 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of some provisions of the first part of the first section of the Civil Code of the Russian Federation” No. 25 as of 23.06.2015, etc.)

Meanwhile, considering individual cases related to the participation of public entities and individuals in non-contractual obligations, the Constitutional Court of the Russian Federation formulated legal positions that do not fully correspond to the Russian legislative model describing participation of public entities in civil relations.

For instance, in 2017, during the case following the complaint of citizen A.N. Dubovets, the Constitutional Court of the Russian Federation adopted the widely known Decree No. 16-P of 22.06.2017, according to which there appeared a special exception to the rules of Art. 302 of the Civil Code on vindication of property in relation to the situation when the public entity claims the reclamation of property from unlawful possession of a bona fide purchaser - an individual.

During the formation of the legal conclusion for this case the Constitutional Court of the Russian Federation paid close attention (inter alia) to the assessment of a condition provided by Art. 302 of the Civil Code, namely the reclamation of property from the possession of the owner beyond one's will. In addition, the Constitutional Court of the Russian Federation essentially analyzed the procedure for participation of public entities in civil relations by the example of the institution of escheat.

In particular, it was proposed to take into account and analyze two points when settling the respective disputes: “the fact of state registration of the ownership right to the dwelling premises for the person who had no right to alienate it, and the nature of actions (inaction) of the public owner personified by the authorized bodies that are entrusted with the competence to register title to escheated property and dispose of it”.

In the context of the issue under consideration, the dual position of the Constitutional Court of the Russian Federation on the powers of bodies acting on behalf of the state raises concern. On the one hand, the court states unequivocally that the loss of the escheated intangible property by public entity may be caused by “inaction of relevant bodies which have not formalized the ownership right to it within a reasonable period of time, which to a certain extent creates prerequisites for its loss, including through withdrawal of the property from the possession of the public owner as a result of unlawful actions of third parties”. The RF Constitutional Court uses the term “authorized bodies” to name this type of bodies without giving any other options.

But there is a completely different situation when the court assesses the fact of state registration of ownership under forged documents as regards a third party claiming escheated dwelling premises. The Constitutional Court of the Russian Federation has already criticized the position of the courts that do not consider “expression of the will of a public legal entity aimed at withdrawal of intangible property from the possession of a public owner, the act of state registration of the right to this property (although it is this act that confirms the legality of the transaction made by the originally unauthorized alienator of intangible property with a third party) as permissive, as the basis for the alienator's registration as the owner of this property and, consequently, the justified legality of the transaction.

Hereby, the Constitutional Court of the Russian Federation comes to the conclusion that “the state, represented by legally authorized bodies and officials acting during the procedure of state registration of rights to intangible property, confirms the legality of a transaction on withdrawal of intangible property”.

As a result, it turns out that, in the opinion of the RF Constitutional Court, the registration body that exercises the authority to perform registration actions within its competence, established by a regulatory legal act, and which does not have the authority to dispose of escheated property owned by a public entity, nevertheless, authorizes the transactions on withdrawal of such real estate objects. Putting it another way, the body that registered the ownership of a third party on the basis of forged documents in such a manner expressed the will of the public entity to alienate this property from the possession of the latter. In this case, there is a confusion of norms of public (registration) and private law, since it is impossible to identify the actions of a state authority to perform public functions as actions for disposal of a specific public property, especially in a situation when the state authority has not been entitled to disposal of property of a public legal entity. It is obvious that this interpretation does violate the provisions of Art. 125 of the Civil Code and the legislative model of public entities' participation in civil relations.

What is more, one should pay heed to another essential fact left without proper legal assessment by the Constitutional Court of the Russian Federation. As it follows from the analyzed resolution of the Constitutional Court of the Russian Federation, the plaintiff in the case of citizen A.N. Dubovets was Moscow itself, i.e. the subject of the Russian Federation, which had got the disputable dwelling premises as escheated property. The right of ownership of this property was registered in the Unified State Register of Property by the authorized body, which is a federal government body, i.e. a body of the Russian Federation. Eventually, the court concluded that the dwelling premises was no longer the property of the subject of the Russian Federation as a result of registration actions by the body implementing legal capacity of another public entity - the Russian Federation. The court did not provide any arguments justifying such interpretation of the law. At the same time, public entities, from the point of view of the Constitution of the Russian Federation and from the point of view of the Civil Code of the Russian Federation, are independent and equal participants of public and private relations, therefore, as a general rule, the actions of one public legal entity are not able to generate legal consequences for another public legal entity unless it is specified either in the law or in the contract. Thus, the legal position in the case considered by the Constitutional Court of the Russian Federation is controversial and requires further investigation.

The next act of the Constitutional Court of the Russian Federation, which is of interest in the context of the analysed issue, is the Resolution of the Constitutional Court of the Russian Federation No. 39-P dated 08.12.2017. When forming the legal conclusion on the possibility of civil liability of an individual for failure to fulfill tax obligations by a legal entity, the court separately considered the issue of the authority of tax bodies to apply to the court with a claim for compensation for damages in such cases.

Thereat, the RF Constitutional Court, having assessed Article 31 of the RF Tax Code and the provisions of the RF Law “On Tax Authorities of the Russian Federation”, stated the absence of a direct reference to the right of tax bodies to apply to court for compensation of damages based on Article 1064 of the RF Civil Code. In other words, the court found that the tax bodies had no such authority within their competence as established by the acts determining the status of these bodies. At the same time, this circumstance did not prevent the RF Constitutional Court, which followed the RF Supreme Court in its decision, from coming to the conclusion that such right still belongs to the tax bodies, as in this case they do not hold citizens to account using their powers; they only express the will of the affected public legal entity, addressing the court with the relevant claims on its behalf.

Taking into account that the current procedural legislation unambiguously defines the prosecutorial authorities as authorized subjects with the right to apply to court with claims for protection of property interests of public entities in all categories of cases, there would be a violation of the Art. 125 of the Civil Code if the list of such authorities includes tax bodies when there are no legal grounds for such a solution.