Introduction
In a market economy, the role of private entrepreneurship is determined by their real contribution to social development. Small business today is the "cornerstone of development" and the "locomotive" of all those economic processes that are taking place in the economy today, and the basis for the sustainable development of the economy of any country.
Today, no one doubts that private entrepreneurship has great potential in solving the economic and social problems of Kazakhstan. Kazakhstani small businesses are already contributing to the creation of new jobs, to the revenue side of the budget, to stimulating innovation and innovation, as well as to the formation of a middle class of owners, which is becoming an essential condition for strengthening social stability in the Republic of Kazakhstan.
Small business, quickly responding to changes in market conditions, gives the economy the necessary flexibility. Small companies are able to quickly respond to changes in consumer demand and thereby ensure the necessary balance in the consumer market. Small business makes a significant contribution to the formation of a competitive environment, which is of paramount importance for our economy.
Small businesses cannot fully realize their potential due to a number of problems that their representatives face when implementing economic activity. Among these problems are the instability and incompleteness of the legislative framework for small business activities, severe tax pressure, and the problem of financing associated with insufficient initial capital and own working capital.
In this regard, there is a need for an in-depth theoretical study of the development of small and medium-sized businesses in Kazakhstan, as well as consideration of world experience in solving the problems of small and medium-sized businesses.
In the Republic of Kazakhstan, the development of small business is becoming increasingly important. A wide range of legal acts regulating the activities of entrepreneurs has been adopted, and a state program is being developed and implemented to support them in general. Legal and procedural mechanisms have been created to protect and ensure the rights of entrepreneurs.
The particular interest and relevance of this study are due to the importance of small business as a driving force in the formation and development of the market. Small and medium-sized enterprises significantly and without significant capital investments expand the production of consumer goods and services, help equalize the living conditions of the population, involve labor, material and financial resources in production, accelerate the demonopolization of production, promote competition, serve as the basis for the formation of a mass layer of owners as the basis of the middle class. class of society, the guarantor of its stability, serve as a source of tangible budget revenues and sustainable economic growth.
In addition, in his Message to the people of Kazakhstan “The growth of the welfare of the citizens of Kazakhstan is the main goal of state policy” N.A. Nazarbayev noted that a developed business sector is the backbone of the economy of any country. In this regard, as part of the administrative reform, he instructed the Government to decisively reduce the administrative burden on business, further simplify the licensing system, primarily licensing, certification, and accreditation. Thus, the Government should continue consistent work to stimulate the competitiveness of small and medium-sized businesses.
The purpose of this term paper- to consider state regulation of entrepreneurial activity.
To achieve this goal, the following tasks were set:
- to give the concept of entrepreneurial activity;
- consider the types, methods of state regulation of entrepreneurial activity;
- describe the program of state support for private and small businesses;
- to conclude.
- 1. Fundamentals of legal regulation of entrepreneurial activity in Kazakhstan
Entrepreneurial activity is a type of economic activity, which is an independent, initiative activity of a business entity aimed at making a profit (income). In turn, economic activity is one of the types of economic activity carried out in accordance with the rules established by public authorities and administration, as well as economic entities. Economic activity is any activity in the sphere of the economy aimed at organizing and developing production, trade, transport, services, consumer services, etc. Economic activity finds its expression in the process of reproduction of material and spiritual goods, including production, distribution, exchange and consumption.
In the legislation of the Republic of Kazakhstan, instead of the concept of "entrepreneurial activity", the term "entrepreneurship" is introduced (accordingly, state and private entrepreneurship are distinguished). Thus, “private entrepreneurship” refers to the initiative activity of private entrepreneurship entities aimed at generating income, based on the property of private entrepreneurship entities themselves and carried out on behalf of private entrepreneurship entities, for their risks and under their property liability (clause 5, article 1 of the Law RK on private entrepreneurship). Consequently, the legislator names as signs of private entrepreneurship: initiative; receiving income; possession of property; entrepreneurial risk; independent property liability of the entrepreneur.
Signs of entrepreneurial activity should include the following: initiative and independence of entrepreneurial activity; possession of property; risky nature; focus on making a profit (income).
The initiative and independence of entrepreneurial activity mean the freedom of the entrepreneur to choose directions and methods of work, independent decision-making, the inadmissibility of arbitrary interference in private affairs, the unhindered exercise of rights, their enforcement, their judicial protection. The entrepreneur has the right to independently determine any terms of the contract that do not contradict the law, establish the range of his rights and obligations. At the same time, the initiative and independence of the entrepreneur find their expression in personal risk and personal property liability.
Ownership is the basis for the entrepreneur to carry out his activities. According to paragraph 4 of Art. 26 of the Constitution of the Republic of Kazakhstan, everyone has the right to free use of their property for any legal business activity.
The risky nature of entrepreneurial activity is due to the specifics of market relations. The risk of entrepreneurial activity includes both the risk of non-fulfillment or improper fulfillment of contractual obligations by the counterparty, and the risk of loss or damage to property used for entrepreneurial activity, non-receipt of possible benefits, income from entrepreneurial activity.
An important feature of entrepreneurial activity is the extraction of profit, income, obtaining mutually beneficial results. Profit can be expressed both in the form of cash and in the form of other tangible and intangible values.
The systematic nature of entrepreneurial activity means that this activity is not of a one-time nature and is carried out for a long or even indefinite time.
Finally, a sign of entrepreneurial activity can be called its legalized nature, i.e. the presence of a business entity of the official status of an entrepreneur, which is acquired as a result of registration with the relevant state bodies as an entrepreneur: a legal entity or a citizen-entrepreneur without forming a legal entity, as an individual entrepreneur.
The main types of entrepreneurship in the Republic of Kazakhstan are private and state entrepreneurship. The Civil Code of the Republic of Kazakhstan distinguishes between private and state entrepreneurship depending on the form of ownership - private entrepreneurship is based on private property, and state entrepreneurship is based on the right of economic management of a state enterprise (clause 1, article 10 of the Civil Code of the Republic of Kazakhstan). State entrepreneurship should be understood not as the entrepreneurial activity of the state itself, but as entrepreneurship carried out by state enterprises on the basis of the right of economic management.
Depending on the type of state ownership, the following types of state enterprises can be distinguished: republican state enterprises (ie enterprises that are in republican ownership); communal state-owned enterprises (communal-owned enterprises) (clause 2, article 1 of the Law on State-Owned Enterprises).
Private entrepreneurship can be divided into two main types - private entrepreneurship of legal entities (entrepreneurship of non-state legal entities) and entrepreneurship of individuals without forming a legal entity (individual entrepreneurship).
The forms of joint venture are:
- entrepreneurship of the spouses, carried out on the basis of the common joint property of the spouses;
- family business carried out on the basis of common joint ownership of a peasant (farm) economy or common joint ownership of a privatized dwelling;
- a simple partnership in which private entrepreneurship is carried out on the basis of common shared ownership.
1.2 Legislation of the Republic of Kazakhstan on entrepreneurial activity
The formation of the legislation of Kazakhstan on entrepreneurial activity begins in the Soviet period in the 80s of the twentieth century, when the “perestroika” that began everywhere led to the emergence of a cooperative movement and the intensification of foreign economic activity. Decree of the Council of Ministers of the USSR “On the further development of foreign economic activity of state, cooperative and other public enterprises, associations and organizations” dated December 2, 1988 No. 1405 defined as the most important task the creation of the necessary conditions for the active inclusion of enterprises, associations, production cooperatives and other organizations in various forms of foreign economic activity on the principles of currency self-sufficiency, the development of socialist entrepreneurship. Decree of the Council of Ministers of the USSR "On measures of state regulation of foreign economic activity" dated March 7, 1989 No. 203 established a system of state regulation of foreign economic activity, which included registration of participants in foreign economic relations; declaring goods and other property moved across the state border of the USSR; the procedure for export and import of certain goods of national purpose; measures of operational regulation of foreign economic relations.
The first stage in the development of business legislation is characterized by the fact that during this period the legal basis for the activities of business entities was created. This is evidenced by the then adopted legislative acts, such as the Law of the Republic of Kazakhstan "On the circulation of securities and the stock exchange in the Republic of Kazakhstan" dated June 11, 1991; Law of the Republic of Kazakhstan "On business partnerships and joint-stock companies" dated June 21, 1991; Law of the Republic of Kazakhstan "On concessions in the Republic of Kazakhstan" dated December 23, 1991; Law of the Republic of Kazakhstan "On the tax system in the Republic of Kazakhstan" dated December 25, 1991, etc.
Of particular importance for the development of entrepreneurial activity during this period was the Law of the Republic of Kazakhstan "On the Protection and Support of Private Entrepreneurship" dated July 4, 1992 No. 1543-XII, which determined the main forms and methods of protecting private entrepreneurship and its support, fixed the policy of refusing direct interference the state into private entrepreneurial activity, maximum freedom of private entrepreneurs, protection of trade secrets and responsibility of state bodies and officials for violation of the rights of private entrepreneurs.
The beginning of the second stage in the development of entrepreneurial legislation was the introduction of the Laws of the Republic of Kazakhstan "On State Support for Small Business" dated June 19, 1997 No. 131-I and "On Individual Entrepreneurship" dated June 19, 1997 No. 135-I. The Law on State Support for Small Business has fixed the following principles of state support for small business: the principle of priority for the development of small business in the Republic of Kazakhstan; the principle of comprehensiveness of state support for small business; the principle of accessibility of the infrastructure to support small businesses and the measures taken for all small businesses; the principle of international cooperation in the field of support and development of small business. The Law on Individual Entrepreneurship was aimed at realizing the right of citizens to freedom of entrepreneurial activity, established by the Constitution of the Republic of Kazakhstan, and forming a system of state guarantees for individual entrepreneurship.
The third stage originates from the enactment of the Law of the Republic of Kazakhstan "On Private Entrepreneurship" dated January 31, 2006, which systematized the norms governing entrepreneurial activity and combined them into a single legislative act. To replace the numerous acts regulating business legal relations, one legislative act was adopted, which established the general principles for the implementation of entrepreneurial activity in the Republic of Kazakhstan.
1.3 The system of business legislation of the Republic of Kazakhstan
The system of legislation of the Republic of Kazakhstan on entrepreneurship consists of the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan and other regulatory legal acts, which can be combined into the following groups.
The first group includes special regulatory legal acts that establish the basic principles for carrying out entrepreneurial activities - this is the Law of the Republic of Kazakhstan “On business partnerships” dated May 2, 1995 No. 2255; Law of the Republic of Kazakhstan “On Limited and Additional Liability Partnerships” dated April 22, 1998 No. 220-I; Law of the Republic of Kazakhstan “On Unfair Competition” dated June 9, 1998 No. 232-I; Law of the Republic of Kazakhstan “On a comprehensive business license (franchising) dated June 24, 2002 No. 330-II; Law of the Republic of Kazakhstan "On Private Entrepreneurship" dated January 31, 2006 No. 124-III; Decree of the President of the Republic of Kazakhstan "On the protection of the rights of citizens and legal entities to freedom of entrepreneurial activity" dated April 27, 1998 No. 3928; Decree of the President of the Republic of Kazakhstan "On additional measures on the protection of the rights of citizens and legal entities to freedom of entrepreneurial activity” dated May 28, 1999 No. 49; Decree of the Government of the Republic of Kazakhstan "On the formation of the Council of Entrepreneurs" dated April 23, 2005 No. 1560; Decree of the Government of the Republic of Kazakhstan “On Approval of the Model Regulations on Expert Councils on Entrepreneurship Issues” dated June 2, 2006 No. 496; Decree of the Government of the Republic of Kazakhstan “On Approval of the Rules for the Accreditation of Associations of Private Business Entities” dated May 31, 2006 No. 477; and etc.
The second group includes regulatory legal acts on small business and its state support - the Decree of the Government of the Republic of Kazakhstan “On Approval of the Rules for Conducting State Inspections of the Activities of Small Business Entities” dated June 17, 2003 No. 572; Decree of the Government of the Republic of Kazakhstan “On approval of the Rules for granting property lease (lease) or trust management to small businesses with the right of subsequent gratuitous transfer of ownership of unused objects of republican state property” dated April 4, 2003 No. 327; Decree of the Government of the Republic of Kazakhstan "On approval of the Program of accelerated measures for the development of small and medium-sized businesses in the Republic of Kazakhstan for 2005-2007" dated May 12, 2005 No. 450, etc.
The third group consists of acts on state support of innovation activities - the Law of the Republic of Kazakhstan "On Science" dated July 9, 2001 No. 225-II; Law of the Republic of Kazakhstan “On State Support of Innovation Activities” dated March 23, 2006 No. 135-III; Decree of the President of the Republic of Kazakhstan "On measures to further increase the competitiveness of the national economy within the framework of the industrial and innovative policy of the Republic of Kazakhstan" dated March 16, 2006 No. 65; Decree of the Prime Minister of the Republic of Kazakhstan “On Measures to Implement the Law of the Republic of Kazakhstan “On State Support of Innovation Activities” dated July 17, 2006 No. 206-r; and etc.
Also, the system of the legislation of the Republic of Kazakhstan on entrepreneurial activity includes acts on the protection of consumer rights, acts on the support of domestic producers, acts regulating certain types of entrepreneurial activity, international treaties of the Republic of Kazakhstan.
- 2.
State regulation entrepreneurial activity
2.1 The concept and types of state regulation of entrepreneurial activity
The state, regulating business relations, uses various forms and methods of influencing the behavior of business entities. The objective need for state regulation of market relations is based on limited opportunities market economy in the production of public goods, which is the main motive for the activity of the state in the sphere of the economy.
In the system of public relations for the regulation of entrepreneurial activity, on the one hand, there are legal entities and individuals who, in accordance with the current legislation, have the status of an entrepreneur; and on the other hand, the relevant government bodies (ministries, departments, committees, etc.). At the same time, social relations that develop between these subjects can be both vertical managerial legal relations, entirely built on power and subordination (for example, relations in the field of licensing, certification, etc.), and horizontal social relations, in which there is no subordination (for example, contractual legal relations). In the first case, we will talk about public law relations, and in the second case, about private law.
In the current legislation on private entrepreneurship, the main goals of state regulation of private entrepreneurship are: 1) creating favorable conditions for the development of private entrepreneurship; 2) protecting the interests of the state and the rights of consumers by introducing the administration of private enterprise (Article 4 of the Law on Private Enterprise). As for the goals of the state administration of private entrepreneurship, they include: ensuring the safety of products produced and sold by a private business entity for the life and health of people, protecting their property, security
for environment, National Security of the Republic of Kazakhstan; prevention of deceptive practices; saving natural and energy resources; increasing the competitiveness of national products.
The types of public administration are:
- establishment by the laws of the Republic of Kazakhstan of requirements for products, processes of private entrepreneurship (the state establishes by the laws of the Republic of Kazakhstan requirements for products, processes, mandatory for all private entrepreneurship entities);
- accreditation of conformity assessment bodies, verification, calibration and testing laboratories (centers) (accreditation of conformity assessment bodies, verification, calibration and testing laboratories (centers) is carried out in accordance with the laws of the Republic of Kazakhstan);
- mandatory confirmation of compliance of certain types of products with the requirements of the legislation of the Republic of Kazakhstan (mandatory confirmation of the conformity of certain types of products, processes is established if it is necessary to achieve the goals established by the legislation of the Republic of Kazakhstan on technical regulation);
- state control over private entrepreneurship (state control over private entrepreneurship is established in cases where the fulfillment of the requirements established by the laws of the Republic of Kazakhstan for products, processes, and the requirements for confirming the conformity of certain types of products, processes is not enough to achieve the goals of state administration);
- licensing of certain types of private entrepreneurship (state bodies that carry out licensing of certain types of private entrepreneurship are obliged to issue a license to a private entrepreneurship entity to carry out the type of activity declared by it, if the private entrepreneurship entity has submitted to the authorized body the documents necessary for obtaining it, or reasonably refuse to issue licenses within the time limits established by the legislation of the Republic of Kazakhstan on licensing);
- compulsory insurance of civil liability of private entrepreneurship entities in accordance with the laws of the Republic of Kazakhstan (compulsory insurance of civil liability of private entrepreneurship entities is established by the laws of the Republic of Kazakhstan in cases where the use of types of public administration does not ensure the achievement of the goals of public administration);
- establishing by the laws of the Republic of Kazakhstan the responsibility of private business entities, government agencies and their officials (responsibility of private business entities, state bodies and their officials is established by the laws of the Republic of Kazakhstan).
The classification of types of state regulation can be based on the degree of influence of the state on certain relations in various sectors of the economy. In particular, it is possible to single out the maximum, average and minimum level (regime) of state regulation of the economy. The maximum level involves the use of all or most of the means (instruments) of state regulation. It is established in relation to, for example, natural monopolies. A minimum level of state regulation exists in relation to entrepreneurship associated with creative activities.
Types of state regulation can be classified on a territorial basis, i.e. depending on the territory of application of certain means of influence. In this regard, we can single out state regulation at the republican level, at the regional level, at the local (local) level.
Also, depending on the nature of the applied methods of influence, direct and indirect (indirect) state regulation can be distinguished. Direct state regulation is based on the use of administrative (imperious) methods of regulation, while indirect regulation is carried out with the help of economic methods of influence (as a rule, of a stimulating nature).
Other classifications of types of state regulation in the economic sphere are also possible.
2.2 The system of bodies, methods and directions of state regulation of entrepreneurial activity
The bodies of general competence, first of all, include the Government of the Republic of Kazakhstan, which, in accordance with Article 14 of the Law on Private Entrepreneurship:
- develops the main directions of state policy in the field of support and development of private entrepreneurship;
- forms a state system of support for private entrepreneurship;
- forms and abolishes consultative and advisory bodies under the Government on issues of private entrepreneurship;
- organizes the consideration by expert councils of draft regulatory legal acts developed by central state and local executive bodies that affect the interests of private entrepreneurship;
- stimulates the development of small business, creates a special fund to provide financial support to small businesses from the state;
- determines and implements the state policy that stimulates the creation and improvement of competitive industries, the development of private business entities and the improvement of the quality of their products;
- develops regulatory legal acts that promote the development of competition and encourage investment in innovation, tangible assets, as well as long-term investment;
- encourages private business entities to pursue a coordinated joint export policy;
- creates conditions for increasing the competitiveness of national products by stimulating the introduction of quality management systems;
- creates research organizations, finances fundamental and applied research to solve the problems of the industry or clusters;
- develops state programs for the training of qualified personnel for the economy of the republic;
- develops measures to involve socially unprotected segments of the population in private entrepreneurship.
The bodies of general competence also include local representative and executive bodies of the Republic of Kazakhstan. Local representative bodies:
- approve regional programs of support and development of small business;
- consider reports of heads of local executive bodies on issues of support and development of small business in the Republic of Kazakhstan.
The Ministry of Industry and Trade is the central executive body that performs the functions of developing state policy and regulatory legal regulation in the field of industrial, incl. military-industrial, scientific, technical and innovative development of the country, as well as in the development of trade activities, entrepreneurship and competition protection, construction, architecture, urban planning and housing and communal services, technical regulation and ensuring the uniformity of measurements, creating favorable conditions for stimulating private investment in the non-primary sector of the economy (clause 1 of the Regulations on the Ministry of Industry and Trade of the Republic of Kazakhstan, approved by the Decree of the Government of the Republic of Kazakhstan dated November 26, 2004 No. 1237).
Ministry of Industry and Trade:
- develops and implements programs for the development of private entrepreneurship;
- organizes and coordinates the implementation of state measures to support and develop small businesses;
- develops proposals for improving measures for financing and lending to private business entities;
- organizes research in the areas of private entrepreneurship;
- contributes to the formation and development of small business infrastructure in the regions of the republic;
- develops proposals for the formation of a system of training, retraining and advanced training of personnel in the field of small business;
- exercises control over compliance with the legislation of the Republic of Kazakhstan, aimed at protecting the rights of private business entities;
- coordinates the activities of expert councils under the central state and local executive bodies;
- creates conditions for the participation of small businesses in the implementation of state programs for innovative, investment and industrial development;
- creates conditions for investors, international organizations - grant-givers in matters of support and development of private entrepreneurship;
- organizes methodological assistance to private business entities;
Methods of state regulation of economic relations are divided into direct and indirect.
Direct methods of state regulation, as already noted, are mainly associated with the use of administrative means of influencing business entities. Such methods of state regulation may include - state registration business entities, licensing certain types of business activities, etc.
Unlike direct methods, indirect methods of state regulation are based on economic means of influence, the essence of which is to indirectly influence the behavior of business entities through economic interests, and not through direct power influence. In particular, by creating conditions that influence the motivation for the proper behavior of business entities through material incentives and incentives (for example, by providing benefits and preferences to individual business entities).
One of the most important areas of state regulation of entrepreneurial activity is control over the quality of products, works and services.
In the conditions of market relations, issues of ensuring the protection of consumer rights are becoming important and essential. The fundamental principles are now clearly articulated in the regulatory legal acts:
- the right of consumers to the safety of goods;
- on reliable information about goods, works and services;
- to compensate for damage caused by substandard goods and services.
The consumer has the right to:
- the proper quality of the purchased goods, work or service provided, unless he is informed in advance by the seller or manufacturer about the shortcomings and agrees with them (the establishment of any direct or indirect restrictions on consumer rights is not allowed);
- checking the quality, completeness, measure, weight and price of purchased goods, demonstrating their convenience, as well as training in their safe and correct use;
- free choice of goods and services (a manufacturer, seller is prohibited from using the advantages of his position in production or commercial activities in order to force the consumer to agree with the inadequate quality of goods and services, an unnecessary assortment of products, or refuse to exercise his consumer rights);
- guaranteed service after the sale of domestic and imported goods;
- exchange of goods of good quality (if for some reason they do not meet his needs or do not have the necessary properties);
- obtaining information about products;
- ensuring the safety of his life and health.
Along with this, the consumer has the right to apply on his own initiative with a claim to the manufacturer or seller of products (works and services) of inadequate quality, or sold at inflated prices. In case of refusal to eliminate the violations and compensate for the damage caused on a voluntary basis, the consumer has the right to file a claim with the court (the price of the claim does not matter).
The next direction of state regulation of entrepreneurial activity is the state regulation of prices and tariffs. In countries with developed market economies, price is an important management tool and an object of state regulation.
The price is understood as the monetary expression of the cost of goods, works and services. In relation to works and services, the term "tariff" is also used, which is a concept identical to the category "price".
The pricing system in the Republic of Kazakhstan is based on the use of free (market) prices and tariffs, which are formed under the influence of supply and demand, and provides for the following types of prices: free prices; wholesale (selling) prices; retail prices; regulated prices.
Free prices are established by agreement of the parties and apply to all goods and services, except for the list established by the Government of the Republic of Kazakhstan.
Free prices are of two types: wholesale and retail.
Wholesale (selling) prices are formed by agreement between the manufacturer and the consumer, they include the amount of value added tax and excises and are applied in settlements with all consumers, except for the population. Retail prices are determined by commercial organizations that sell goods to the public, they are formed on the basis of the selling price, including value added tax and trade markup.
Regulated prices are determined by authorized state bodies or local self-government bodies for goods and services according to the list established by the Government of the Republic of Kazakhstan.
Violations of state price discipline include:
- overstatement of regulated prices (tariffs) for products, goods and services (fixed and marginal prices (tariffs), marginal levels of profitability, etc.);
- overstatement of wholesale (selling) prices registered when declaring in the pricing authorities;
- overestimation or underestimation of prices for products supplied by enterprises under intergovernmental agreements with the CIS countries and other states;
- overstatement of the established allowances (margins) to prices (tariffs), accrual of unforeseen allowances (markups), non-provision or provision to the buyer in a reduced amount of established discounts;
- the use of regulated prices, markups, tariffs by public catering, public utilities and consumer services, the level of service of which does not correspond to the characteristics provided for when these prices and tariffs are set;
Economic sanctions are applied to the entities that committed the above violations. In particular, to enterprises that have committed violations of state price discipline in the sale of products, goods, services and received excessive amounts as a result, sanctions are applied in the form of withdrawal in an indisputable manner of excessively received amounts from profits and transferring them to state revenue. In addition, the company is additionally charged a fine in the same amount.
State control in the application of transfer prices in international business transactions is carried out in order to establish the fact of deviation of the applied prices from the market prices for the transactions indicated below, and to adjust the objects of taxation (clause 1, article 3 of the Law of the Republic of Kazakhstan "On State Control in the Application of Transfer Prices" dated 5 January 2001 No. 136-II).
A special procedure for setting tariffs for regulated services (goods, works) is established for subjects of natural monopolies. According to Art. 15-1 of the Law of the Republic of Kazakhstan "On Natural Monopolies" dated July 9, 1998 No. 272-I, tariffs (prices, rates of fees) or their maximum levels for regulated services (goods, works) of a natural monopoly entity, approved by the authorized body, should not be below the cost of the costs required for the provision of regulated services (production of goods, works), and take into account the possibility of making a profit that ensures the effective functioning of a subject of natural monopoly.
When approving a tariff (price, charge rate) or its limit level, the authorized body applies a special procedure for the formation of costs, which provides for the following provisions:
- regulation of costs included in the tariff (price, fee rate) or its maximum level;
- limiting the items of expenditure of a subject of natural monopoly within the technical and technological norms for the consumption of raw materials, materials, fuel, energy, as well as normative technical losses;
- establishment of a list of expenses that are not taken into account when forming the tariff (price, fee rate) or its maximum level;
- limiting the profit included in the tariff (price, fee rate) or its maximum level;
- harmonization of applied methods of accrual of depreciation of fixed assets;
- coordination of the revaluation of fixed assets and directions for the use of depreciation funds provided for by the tariff estimate of a subject of natural monopoly.
Currently, along with the transformation of forms and relations of ownership as the fundamental principles of market formation, measures are being taken to demonopolize the economy and develop competition, among which antimonopoly regulation occupies an important place. Legal regulation competition and restriction of monopolistic activity is aimed at establishing the rules for conducting economic activities by monopoly enterprises, as well as monitoring their implementation.
The spheres of natural monopolies in the Republic of Kazakhstan include services (goods, works):
- transportation of oil and (or oil products) through main pipelines;
- storage, transportation of gas or gas condensate through main and (or) distribution pipelines, operation of gas distribution installations and related gas distribution pipelines;
- for the transmission and (or) distribution of electrical energy;
- for the production, transmission, distribution and (or) supply of thermal energy;
- on technical dispatching of supply to the network and consumption of electric energy;
- main railway networks;
- access roads;
- air navigation;
- ports, airports;
- telecommunications provided that there is no competitive telecommunications operator due to technological impossibility or economic inexpediency of providing these types of services, with the exception of universal telecommunications services;
- for the provision of property lease (lease) or use of cable ducts and other fixed assets technologically related to the connection of telecommunications networks to the public telecommunications network;
- water management and (or) sewerage systems;
- public postal services (clause 1, article 4 of the Law on Natural Monopolies).
In accordance with the current legislation, a natural monopoly entity is prohibited from:
- provide services and carry out other activities not related to the areas of natural monopolies, with the exception of activities: technologically related to regulated services (goods, works); established by the legislation of the Republic of Kazakhstan on mail; in the case when income from the provision of regulated services (goods, works) related to the sphere of natural monopoly does not exceed one percent of income from all activities of a market entity for one calendar year; in the case when income from other activities does not exceed five percent of the entire activity of the subject of natural monopoly for one calendar year;
- have on the right of ownership and (or) economic management property that is not related to the production and provision of regulated services (goods, works) by a subject of natural monopoly, as well as to the implementation of activities permitted for a subject of natural monopoly in accordance with the law;
- own shares (stakes) or otherwise participate in the activities of commercial organizations, except for non-state accumulative pension funds, special financial companies, as well as other organizations engaged in activities permitted for a subject of natural monopoly by law;
- impose conditions of access to regulated services (goods, works) of subjects of natural monopolies or perform other actions leading to consumer discrimination;
- refuse to provide regulated services (goods, works) to conscientious consumers in connection with non-payment by unscrupulous consumers for the used volume of regulated services (goods, works);
- include in tariffs (prices, rates of charges) or their marginal levels for regulated services (goods, works) costs not related to their provision;
- recognize as a commercial secret information: contained in the tariff estimate; on the costs of acquiring and installing metering devices for regulated utilities and the mechanism for charging fees, acquiring and installing metering devices for regulated utilities; on the provided regulated utilities
(goods, works).
The Constitution of the Republic of Kazakhstan, civil legislation and special regulations prohibit economic activities aimed at monopolization and unfair competition. In particular, Art. 11 of the Civil Code of the Republic of Kazakhstan expressly states that monopolistic and other activities aimed at restricting or eliminating legitimate competition, obtaining unreasonable advantages, infringing on the rights and legitimate interests of consumers are not allowed.
Antimonopoly legislation should by legal means promote the development of competition, that is, the competitiveness of entrepreneurs in commodity markets, which limits the ability of each individual entrepreneur to negatively affect the general conditions for the circulation of goods (services) and stimulates the production of those goods and services that the consumer needs.
Antimonopoly regulation, therefore, is a purposeful activity of the state and its bodies to establish and implement the rules for conducting economic activity in commodity markets in order to protect fair competition.
To carry out its functions, any state needs financial resources, the main source of which are taxes and other obligatory payments made to the budget. In this regard, conscientious and timely fulfillment of tax obligations by business entities, and, accordingly, tax regulation, is of great importance.
The Republic of Kazakhstan has taxes and other obligatory payments to the budget established by the Code of the Republic of Kazakhstan “On taxes and other obligatory payments to the budget” (Tax Code) dated June 12, 2001 No. 209-II ZRK.
Taxes are divided into direct and indirect. Direct taxes are established directly from income or property and are levied in the process of acquiring and accumulating wealth.
Direct taxes are divided into real and personal. Real taxes include taxes on certain types of income or objects of property, for example, on land, real estate. Personal taxes include, for example, income tax, single tax on imputed income, personal income tax.
Indirect taxes are taxes on the consumption of goods and services, established as a markup on prices, and levied in the process of spending material goods. Indirect taxes include, for example, excises, value added tax, sales tax, customs duties.
Tax regulation of business relations is manifested simultaneously as the activity of the state to ensure the completeness of revenues to the budget of taxes and other obligatory payments, and the activity of the state to provide various benefits and preferences in order to ensure sustainable economic growth. Tax instruments stimulating entrepreneurial activity include, for example, the differentiation of tax rates, the possibility of accelerated depreciation of fixed assets, various tax incentives, and some special tax regimes.
A special tax regime has been introduced for small businesses and establishes a simplified procedure for calculating and paying social tax and corporate or individual income tax, with the exception of taxes withheld at the source of payment (at the same time, it does not apply to small businesses general order calculation, payment and submission of tax reporting of the above taxes). The object of taxation is income for the tax period, consisting of all types of income received (receivable) in the territory of the Republic of Kazakhstan and abroad, with the exception of income previously taxed, if there are documents confirming the withholding of tax at the source of payment, and (or) one-time ticket. The tax period for an individual entrepreneur making payments to the budget on the basis of a patent is twelve months; for a small business entity making settlements with the budget on the basis of a simplified declaration - a quarter. In the case of several types of business activities carried out by small businesses applying a special tax regime, the income is determined in total from the implementation of all types of activities. For small businesses that apply a special tax regime and are payers of value added tax, the amount of value added tax is not included in the income for the tax period.
Small business entities have the right to independently choose only one of the following procedures for calculating and paying taxes, as well as submitting tax reports on them: generally established procedure; special tax regime based on a one-time coupon; special tax regime based on a patent; special tax regime based on a simplified declaration (Article 371 of the Tax Code of the Republic of Kazakhstan). When switching to the generally established procedure for calculating and paying taxes, the subsequent transition to a special tax regime is possible only after two years of application of the generally established procedure.
A special tax regime based on a patent is applied by individual entrepreneurs who meet the following conditions: do not use the labor of hired workers; carrying out activities in the form of personal entrepreneurship; whose income for each twelve-month period of application of the special tax regime based on a patent does not exceed 2 million tenge. In cases where conditions arise that do not allow the application of a special tax regime based on a patent, the taxpayer, on the basis of an application, switches to a special tax regime based on a simplified declaration or to the generally established procedure for calculating and paying taxes.
In order to apply a special tax regime based on a patent, an individual entrepreneur, prior to the start of its application, submits an application to the tax authority at the place of entrepreneurial activity in the form established by the authorized state body. A patent is issued to an individual entrepreneur for a period of not less than one month and not more than twelve months.
The calculation of the cost of a patent is made by an individual entrepreneur by applying a rate of 2% to the declared income. The cost of a patent is payable to the budget in the form of: individual income tax - in the amount of? parts of the cost of the patent; social tax - in the amount? part of the cost of the patent minus the amount of social contributions in
State Social Insurance Fund, calculated in accordance with the legislative act of the Republic of Kazakhstan on compulsory social insurance.
In case of termination of entrepreneurial activity before the expiration of the patent, the amount of taxes paid is not subject to return and recalculation, except for the case when an individual entrepreneur is recognized as incapacitated.
In order to switch to a special tax regime on the basis of a simplified declaration, before the start of the tax period, small businesses submit an application to the tax authority at the place of activity in the form established by the authorized state body. Newly formed legal entities submit an application for the application of a special tax regime on the basis of a simplified declaration to the tax authority no later than ten working days after the state registration of the legal entity. Newly formed individual entrepreneurs submit an application for the application of a special tax regime on the basis of a simplified declaration on the day of registration at the place of business. When carrying out activities at several facilities located on the territory of different territorial-administrative units within the same settlement, the taxpayer independently determines the tax authority for filing an application for the application of a special tax regime based on a simplified declaration.
A special tax regime based on a simplified declaration is applied by small businesses that meet the following conditions: for individual entrepreneurs: the maximum average number of employees for the tax period is twenty-five people, including the individual entrepreneur himself; marginal income for the tax period is 10 thousand tenge; for legal entities: the maximum average number of employees for the tax period is fifty people; marginal income for the tax period is 25 thousand tenge.
Payment of social, corporate or individual income taxes and reporting on them upon transition from the generally established procedure for calculating and paying taxes to a special tax regime based on a simplified declaration is carried out in accordance with the generally established procedure. Calculation of taxes on the basis of a simplified declaration is carried out by a small business entity independently by applying a rate of 3% to the object of taxation for the reporting tax period.
The special tax regime for peasant (farmer) farms provides for a special procedure for settlements with the budget based on the payment of a single land tax and applies to the activities of peasant (farm) farms for the production of agricultural products, processing of agricultural products of their own production and its sale, with the exception of production activities, processing and sale of excisable products. The right to apply a special tax regime is granted to peasant (farm) farms in the presence of land plots on the right of private ownership and (or) on the right of land use (including the right of secondary land use). Peasant (farm) households have the right to independently choose this special tax regime or the generally established taxation procedure.
etc.................
In order to create an effective system of state regulation of entrepreneurial activity and the formation of regulatory policy for the long term, the Government of the Republic of Kazakhstan DECIDES:
1. Approve the attached Concept of State Regulation of Entrepreneurial Activity until 2020.
2. To impose control over the execution of this resolution on the Office of the Prime Minister of the Republic of Kazakhstan.
3. This Resolution shall enter into force ten calendar days after the day of its first official publication.
Prime Minister
Republic of Kazakhstan K. Massimov
Approved
Government Decree
Republic of Kazakhstan
dated April 18, 2014 No. 380
Concept
state regulation of business
activities until 2020
1. Vision for the development of state regulation
entrepreneurial activity in Kazakhstan
This Concept defines the vision, the main approaches to the state regulation of entrepreneurial activity and is aimed at ensuring further development in this direction until 2020.
By this Concept, by 2020, it is planned to create on an ongoing basis a centralized system for public analysis of the regulatory impact of existing and newly introduced norms of laws and tools for regulating the economy and the introduction on its basis of the harmonization of regulatory legal acts by associations of private business entities operating in the field of data acceptance legal regulations based on international experience. At the same time, it provides for the possibility of transferring certain state functions of regulating entrepreneurial activity to the business environment with a simultaneous increase in the responsibility of entrepreneurs for violations that caused damage to consumers. Also, the implementation of the Concept involves further improvement of risk management systems and the introduction of new principles of relations between the state and business, establishing non-interference in the production process and internal activities private enterprises, and focus state control only on the quality and safety of the final product, the study of issues of institutional strengthening of public organizations for the protection of consumer rights, increasing the requirements for them, the development of transparent mechanisms for activities, raising consumer awareness of the quality and safety of consumed products.
Analysis of business regulation
activities in Kazakhstan
№ 672
The task of creating a favorable environment for the development of private entrepreneurship and the inflow of investments has been facing all countries of the former socialist bloc since the early 1990s.
The end of the 20th century was also marked by the beginning of the revision of state regulation systems in Western countries and the development of existing approaches and practices. At that time, there was no international experience of an effective transition from a planned economy to a market one, as well as a generally accepted practice of reforming the regulatory environment in developed market economies.
In Kazakhstan, the system of state regulation of entrepreneurial activity was built in the new market conditions. During the first years of independence, a legal framework was developed to regulate the relations of private property, civil society and freedom of enterprise. Problems of regulation by state bodies were solved as they arose, by introducing new regulatory instruments.
In this regard, preference was given to permissive instruments. Permits are the easiest tool to administer, but are subject to the highest corruption risks. At the same time, for entrepreneurs as subjects of regulation, the introduction of permits became a significant barrier to entry into the market. And in the presence of complex and sometimes impossible requirements, such a barrier is insurmountable for small businesses.
Realizing the need to limit the arbitrary introduction of regulation of entrepreneurial activity by the state, reforms were carried out aimed at improving the efficiency of state regulation.
In 2006, the Law of the Republic of Kazakhstan “On Private Entrepreneurship” was adopted, which provided for the creation of expert councils under state bodies. As a result, business has the opportunity to participate in the development of regulatory legal acts through expert councils established under the central state, local representative and executive bodies.
Also, the Law of the Republic of Kazakhstan "On Private Entrepreneurship" provided for the principles state protection and support for private enterprise, sizing criteria and much more.
In 2007, the Law of the Republic of Kazakhstan “On Licensing” was adopted, which approved an exhaustive list of types of licensed activities and new licensing principles.
In 2011, the principles of “one stop shop” were introduced for agreement with all state bodies when obtaining licenses, “silence is a sign of consent” was extended to all permits. Also, a single deadline for issuing licenses is set - 15 working days, checking the submitted package of documents for completeness within two days, eliminating the mandatory notarization documents.
In 2012, the issuance of all licenses was transferred to an electronic format for permits that are not associated with a direct risk to the life and health of citizens, which are of an informational nature and do not affect the provision of security from high threats, and a notification procedure was introduced.
An important reform of state control and supervision in relation to business entities was the introduction in 2011 of the Law of the Republic of Kazakhstan "On State Control and Supervision in the Republic of Kazakhstan", which establishes uniform principles for the implementation of control and supervisory activities of state bodies.
In order to increase the transparency of the rule-making activities of state bodies, free access of business to regulatory legal acts, as well as improving legal literacy, amendments have been made that provide for an increase in the level of departmental acts of state bodies that establish mandatory requirements for business, to the level of resolutions of the Government of the Republic of Kazakhstan, decrees of the President of the Republic of Kazakhstan and laws. To implement this norm, 251 normative legal acts have been raised to the level of resolutions of the Government of the Republic of Kazakhstan.
In 2012, a ban was introduced on scheduled inspections of small businesses for three years from the date of their state registration.
In general, the result of the reforms carried out was a significant reduction in the pressure of regulatory authorities on business.
In addition, in recent years, reforms have been carried out in such areas as opening an enterprise, taxation, and protecting investors.
Recently, certain elements of the analysis of the regulatory impact of the adopted regulatory legal acts have been introduced in Kazakhstan. Thus, in order to ensure the quality of the development of regulatory legal acts, assess their impact on the regulated area and reduce corruption risks, a methodology was introduced to assess the socio-economic consequences of draft legislative acts being developed, which is largely based on the regulatory impact analysis model. The Law of the Republic of Kazakhstan "On Private Entrepreneurship" provides for the need to calculate the costs of private business entities in connection with the introduction of regulatory legal acts. There is a mechanism for legal monitoring of existing normative legal acts.
However, today in the field of state regulation of entrepreneurial activity there are the following problems:
1) in the licensing system - the lack of regulation of the existing licensing system, the failure to use risk management systems in the licensing practice of Kazakhstan, the constant uncontrolled increase in the number of permits, the complexity of permit legislation, the lack of responsibility of officials for the negative consequences of issued permits, the lack of effective implementation of ongoing reforms;
2) state control and supervision - the prevalence of detection of violations and punishment over the prevention of their commission and prevention; the presence of a large number of requirements subject to verification by the state, many of which are unfeasible, duplicated, outdated, contradictory, unreasonable; insufficient implementation of risk assessment systems.
One of the principles of state control and supervision is the priority of preventing an offense over punishment. However, the sanctions applied in the event of a violation are more often fines than warnings, as well as re-checks.
A high penalty rate indicates that fines are applied even to minor violations, despite the fact that international practice follows the path of using notifications about the need for improvements.
This practice shows that sanctions are applied without any relation to the seriousness of the violations;
3) self-regulation of business - lack of developed competition in the business environment, which could become a good basis for self-regulation, areas with elements of self-regulation are not yet ready for full-fledged self-regulation, imperfection of the legislation of the Republic of Kazakhstan on self-regulatory organizations;
4) rule-making - the inefficiency of the existing system for analyzing the regulatory impact in rule-making activities due to the lack of an organized platform for discussion, conducting scientific economic expertise, within which the analysis of the socio-economic consequences of only draft laws is carried out, the inefficiency of business participation in the rule-making process, as well as a formal approach state bodies (developers) to take into account the opinions of the business community;
5) technical regulation - the multiplicity of existing regulatory legal acts and the presence of reference norms in them, which entail duplication of requirements, the absence of a unified database of regulatory and technical documents, as well as control by state bodies. The lack of a unified database of regulatory and technical documents does not provide complete, reliable and timely information to interested parties, which is an administrative barrier, and as a result, businesses do not have the opportunity to quickly get acquainted with regulatory documents, as well as comply with these requirements, which in a market economy hinders the development of industries economy.
6) information tools - uncontrolled growth in the number of information tools, lack of a uniform approach to collecting information, duplication of information tools and deadlines for their implementation. Unlike permits and areas of state control, the list of which is established in the relevant legislative acts, there is no single list of information tools. Information tools exist in regulatory legal acts of various levels, both at the legislative and sub-legal levels.
Most of these problems can be solved by introducing an analysis of the regulatory impact of the introduced and existing regulatory instruments, since the analysis of the regulatory impact improves the quality of state regulation in general and allows you to evaluate its effectiveness, and also provides sufficient tools to improve state regulation across the entire spectrum of state policy implementation.
According to the Concept of the legal policy of the Republic of Kazakhstan for the period from 2010 to 2020, approved by Decree of the President of the Republic of Kazakhstan dated August 24, 2009 No. 858, achieving a balance of public and private interests in the implementation of entrepreneurial activity through state regulation of entrepreneurial activity is possible with the adoption of the Entrepreneurial Code of the Republic of Kazakhstan, which will enshrine such basic principles of state regulation of relations with the participation of business entities, such as:
1) guaranteeing the freedom of private entrepreneurship (it is allowed to carry out any types of activities that are not prohibited by the legislation of the Republic of Kazakhstan), ensuring its protection and support (the principle of freedom of private entrepreneurship);
2) equality of all business entities to carry out entrepreneurial activities (principle of equality of business entities);
3) guarantee of inviolability and protection of property of business entities (principle of inviolability of property);
4) action of business entities within the limits of the Constitution of the Republic of Kazakhstan and normative legal acts adopted in accordance with it (principle of legality);
5) stimulation of entrepreneurial activity, including support and priority for the development of small business (the principle of stimulating entrepreneurial activity);
6) participation of business entities in the examination of draft regulatory legal acts, texts of international treaties and other obligations of the Republic of Kazakhstan affecting the interests of entrepreneurship (principle of participation in rule-making).
The Entrepreneurial Code of the Republic of Kazakhstan, adopted on October 29, 2015, provides for a comprehensive regulation of public relations in the field of entrepreneurship, including those arising in connection with the interaction of entrepreneurs and the state, issues of state regulation and support for entrepreneurship. He systematized the provisions of the relevant laws on the principle of homogeneity, while fixing uniform principles, measures of state support for private entrepreneurship, the agro-industrial complex, industrial innovation, investment activities, and special economic zones.
The earlier reforms of the licensing system and state control and supervision ensured the inventory of the relevant regulatory instruments and their approval only at the level of laws, with the recognition as illegitimate of all other permits and control functions that were not included in the relevant lists of laws.
On the one hand, this approach provided a guarantee for entrepreneurs from the arbitrary introduction of new burdensome regulatory instruments at the level of by-laws, including departmental ones.
An analysis of the current legislation shows that all the necessary regulatory legal framework already exists at the legislative level.
At the same time, notifications that are part of information tools have already been inventoried and enshrined in the Law
Notifications are a very common communication tool and are generally applied by the state in relation to activities or actions associated with a low level of danger, but requiring the state authorities to receive information about the beginning or termination of such activities or actions in order to be carried out in relation to entities engaged in such activities. activities, state control and supervision.
However, notifications are only a small part of information tools, and in accordance with this Concept, approaches to their further systematization and optimization will be determined.
The main tool for achieving the stated goals and objectives is the analysis of the regulatory impact of the introduced and existing regulatory instruments. In turn, the analysis of regulatory impact is an analytical procedure that allows you to choose the most effective ways to solve problems of state regulation and evaluate the effectiveness of existing regulation.
World experience and comparative country analysis
strengths and weaknesses
Footnote. Subsection as amended by Decree of the Government of the Republic of Kazakhstan dated November 7, 2016 No. 672 (shall be enforced ten calendar days after the day of its first official publication).
Analyzing international experience, we can single out three models that have been used to varying degrees since the late 1980s.
The first, perhaps the most striking model of radical economic liberalization, which led to great positive changes and was unequivocally assessed as successful before the 2008 crisis. This model has been implemented in the Baltic countries, Eastern Europe and China. The existence of a socio-political consensus, and in China a strong political will of the country's leadership, made it possible for the authorities to quickly change the legislative and regulatory framework, significantly increase investment inflows and make the transition to a rapidly developing market economy. General characteristic This model was that the reformed systems were initially unstable, the planned economy collapsed in one way or another, and with it the standard of living of citizens and the economic potential of states fell significantly. In other words, changes have begun, systems have become dynamic. Under such conditions, the implementation of radical reforms was justified and brought the expected positive results.
The second model was used in developed industrial countries. It is characterized by the construction of mechanisms for improving regulations through the use of efficiency assessments, cost reduction, targeted sectoral reforms, and the construction of an institutional system to prevent inefficient regulations. Elements of this model began to be used from the late 1970s as a response to the economic crisis. By the end of the twentieth century, this model was codified by the documents of the Organization for Economic Cooperation and Development, the European Union, the internal laws of the United States of America, many countries Western Europe, Australia and New Zealand. The common characteristic of this model was that the reformed systems were initially stable. Despite the crisis, the standard of living of the population did not fall sharply, the viability of the system of relations and management was not in doubt. In other words, the systems were in a state of equilibrium. Under such conditions, there was no need for radical reforms.
The third model was not actually a planned policy, but was characterized by a set of half-measures, declarations and departures from earlier decisions. This practice has developed to some extent in most countries of the former Soviet Union. In such conditions, the authorities built the rules "for themselves", not paying attention to the possibility of implementing these rules. Private business I got used to such conditions, going into the shade. The business environment has become unforeseen for new players and quite expensive. Over time, this system has become more stable. For 20 years, a certain balance has formed, in which the desire to change something is balanced by the desire to maintain the status quo. Unfortunately, such a balance is established at a point that is disadvantageous neither to the majority of citizens nor to the interests of the state. Reforms that worked under the first model almost always do not work when they are used in countries with this balance. The reason for this is the lack of motivation to fulfill them to their logical conclusion, both by representatives of authorities and by business.
Kazakhstan differs from most countries in the Commonwealth of Independent States in that some radical reforms were successfully implemented in the early years of independence. In this sense, Kazakhstan has some similarities with the countries of Central Europe and China. The success of these reforms, the availability of natural resources led to the growth of the economy and the welfare of the population. At the same time, it is too early to say that the economy of Kazakhstan is fully liberalized, and the conditions for doing business are comparable to the best world standards.
Under the current conditions, the most suitable model for reforms in the Republic of Kazakhstan is the second model, tested in developed industrial states. Unlike the other described models, this model provides for the formation of a targeted state policy, its institutional support and consistent implementation, while targeted and logically incomplete reforms will not lead to the expected result.
State regulation of entrepreneurial activity, along with investment policy, the policy of developing infrastructure and human capital, and credit and financial policy, is part of the general policy of economic development of the state.
Since the goals of state regulation often go beyond purely economic policy and affect the security of citizens and society and the stability of the state, state regulation of entrepreneurial activity should be treated as an integral part of overall state policy, taking into account all existing connections and influences. Business regulation policy differs in the set of instruments used.
The successful development and implementation of a balanced state policy in developed industrial countries directly depended and depend on some starting factors. These factors include, first of all, the controllability of the system of government bodies, their efficiency and professionalism, the continuity of the political course of the top leadership of states, the existence of a developed system of civil society institutions, an effective system of open reporting and accountability of government bodies, the absence of merging of interests big business and authorities in certain sectors of the economy.
As good example Inadequate attention to these factors can be cited from the experience of some countries in counteracting the financial and economic crisis of 2008. The very emergence of this crisis is rooted in the issue of insufficient attention paid by the authorities of the United States of America to the issue of the merging of interests of large financial organizations and their regulators in issuing mortgage loans. The same reason for the merging of interests of banks and their regulators led to the financial collapse of Iceland. The poor state of the economies of Portugal, Greece, Italy after the 2008 crisis has the same roots and is associated with the uncontrollability of the system of government, their inefficiency and lack of professionalism. The difficult environmental situation in large Chinese cities, the accident rate at enterprises and infrastructure facilities are caused by the lack of effective control over the activities of government bodies and the insufficient development of civil society institutions.
On the other hand, countries where sufficient attention was paid to all these factors managed to build a fairly flexible and competitive economic environment with adequate protection of the interests of citizens and society, which made it possible to avoid a crisis even in the context of the globalization of economies. First of all, this concerns the countries of northern Europe, Canada and Australia.
To date, to strengths existing system government controlled and interactions in the triangle of interests of state power, business and citizens in the Republic of Kazakhstan include:
1) a relatively high level of professionalism of senior and middle-level civil servants, a high level of executive discipline in most government bodies. This state of affairs is a consequence successful administrative reform in the Republic of Kazakhstan and the management's attention to improving the skills of civil servants. Unlike other countries of the Commonwealth of Independent States, the Republic of Kazakhstan successfully implemented training programs for future civil servants;
2) long-term stability and predictability of the functioning of the public administration system, continuity of political and administrative leadership of public administration bodies;
3) the political will of the state leadership to improve the business environment and investment attractiveness, plans have been defined for transferring the economy to an innovative development path, a gradual departure from the resource model of economic development;
4) a relatively high level of control over the activities of government bodies, both at the central and regional levels;
5) positive experience in carrying out comprehensive reforms and implementing state policy in the field of administration, automation, implementation of risk management systems in individual public authorities, inventory of licensing procedures and requirements.
The weaknesses of the current system of public administration and interaction in the Republic of Kazakhstan include:
1) organizational weakness and small number of business and professional associations, associations of citizens for the protection of consumer rights, a weak level of development of civil society institutions and, as a result, the lack of an active dialogue between such associations and government bodies;
2) the institutional interest of individual authorities in expanding their areas of regulation and control;
3) the interest of big business in maintaining the status quo, including maintaining a high level of monopolization of the economy. Such an interest in maintaining the status quo is due to the desire not to allow competition for business and not to destroy established ties;
4) insufficient awareness of citizens that the development of private entrepreneurship and competition leads to an improvement in the quality of goods and services, a decrease in their price, an increase in the number of jobs and wages;
5) the lack of effective methods for monitoring the effectiveness of the activities of individual public authorities, the implementation of the requirements of legislative acts in terms of the ratio of achieving the stated goals and associated costs, the practice of conducting independent research on the issues of public administration and regulation, as well as the implementation of public policies and their effectiveness;
6) the lack of regular open reporting of individual authorities to higher authorities on the results of their activities.
For the qualitative implementation of the policy of state regulation of entrepreneurial activity, it is necessary to clearly build its institutional part in accordance with the best international practices.
International practice shows that around the beginning of the 1980s, along with the development and implementation of new requirements and procedures for regulatory policies, developed countries began to create structures of so-called regulatory oversight.
For example, in the United States of America, in the structure of the Office of Management and Budget, the US Office of Information and Regulatory Affairs was established in 1980. In 2005, the Better Regulation Executive was established in the UK. The Dutch Administrative Barriers Advisory Board (Adviescollege Vermindering Administratieve Lasten) was established in 2000. The Swedish Regulatory Improvement Council (Regelradet) was established in 2008 and became operational in 2009. In Germany, the National Norm Control Board (Nationaler Normenkontollrat) was established in 2006. Similar councils also exist in Mexico, Australia, and Japan. In some countries, regulatory oversight functions are performed by departments in ministries. In Denmark it is the Better Regulation Department of the Ministry of Finance, in Finland it is the Legal Inspection Bureau of the Ministry of Justice, in France it is the Quality and Simplification Service of the Ministry of Finance. In Greece, Belgium, Ireland and Korea, these are departments of the Prime Minister's office. In almost all countries of the Organization for Economic Cooperation and Development, except for the United States of America, the conclusions of the regulatory oversight body are advisory in nature.
AT different countries these bodies have subsequently evolved and adapted to effectively synergize with government bodies. Therefore, today, there are some differences both in the tasks assigned to these bodies, the functions they perform, and their structure and place in the public administration system.
The functions of such oversight bodies in different countries include:
1) provision of information, technical and consulting support to state regulatory bodies and governments;
2) coordination of actions of state bodies of regulators on the issues of rule-making and control, supervision over the execution of procedures;
3) providing the political leadership of the state with an assessment of regulations or agreeing on the requirements and procedures for new and revised regulations;
4) development of proposals for the improvement of regulations, their reform, analysis of problems, research, study of the reporting of state bodies, holding appropriate consultations with non-governmental organizations.
One of the softest options for government intervention in entrepreneurial activity is the use of information tools.
At the same time, in many developed countries of the world, it is information tools, which are called information obligations, that are often the objects of reform within the framework of regulatory reforms. The costs of information obligations are the main ones in the structure of administrative costs of business.
Some developed countries use the Dutch standard cost model to calculate the severity of these costs. This model makes it possible to determine the real cost of time and financial costs caused by specific regulatory acts by conducting an analysis of the country's legislation and a subsequent survey of subjects of regulation.
As a rule, costing allows assessing the effectiveness of reforms in specific areas by comparing the costs before and after reforms. In this case, the costs can be estimated as all subjects of regulation (entrepreneurs, social groups etc.), and the state.
The Dutch model has shown its viability and has been used in reforms in countries such as Germany, Denmark, the United States, the Netherlands itself and many other countries.
In Kazakhstan, this model was introduced and tested in 2010-2014 to assess business operating costs in accordance with the President's instruction to reduce them by 30% by 2015 compared to 2011.
The study was conducted by the National analytical center on the instructions of the Ministry of National Economy of the Republic of Kazakhstan.
This model can also be used to assess the effectiveness of the reform of information tools.
In turn, information tools are united by the fact that their use for regulatory purposes does not require authorization (sanction) from state bodies, and for the most part they also do not require any additional capital investments. The use of information tools is reduced to the fulfillment of the requirements for the correct collection (receipt), organization and transmission of information. Such actions incur mainly the costs of the working time of the subject of regulation.
Filling out forms, organizing reporting data, checking correctness, all the document flow open for monitoring is proportionally a large number of time for business leaders. This time is spent not on production management, work with personnel or other productive purposes, but on working with the requirements of the authorities. That is why the costs associated with information tools are often referred to as administrative costs.
According to the World Bank, in international practice, one of the earliest and, probably, the most developed and deep version of working with information tools is the practice of implementing the Paper Reduction Act of 1980, adopted in the United States.
The object of attention of this Act is the collection of information. This collection of information is defined as: “Receiving, creating reasons for receiving, requests, requirements for disclosure of information to third parties or the public, facts, points of view, any organization, regardless of form or format, as asking identical questions or demanding identical types of information or reporting from ten or more people other than departments, organizations, or employees of the US federal government.”
As can be seen from this definition, the subjects of this Act are not only business entities, but also other citizens and organizations, including regional authorities and local self-government.
While recognizing the benefits of information tools, this Act also clearly defines the costs associated with information tools. Cost is defined as “the time, effort, or financial resources devoted by subjects to prepare, maintain, or provide information to any agency of the federal government, including resources to (A) study instructions; (B) acquisition, installation and use of technologies and systems; (B) changing existing methods for the implementation of already pre-existing instructions and requirements; (D) search for data sources; (E) completing and reviewing the collection of information; and (E) communication of information."
The costs of information tools in the US are classified by their causes. Thus, four categories of such reasons are defined, namely: (1) new legal requirements; (2) the actions of government agencies; (3) changes or recalculations due to changes in the number of subjects or information collection methods; (4) errors or non-compliance with requirements, as well as stops and resumes.
The unit of measure for the cost of information tools in the United States is hours of time spent. For example, the US Office of Management and Budget's FY2011 report found that the entire population spent 9.14 billion hours on information requirements, up 355 million hours or 4% from the 8.78 billion hours spent in FY2010.
With regard to Kazakhstan, this US experience is applicable from the point of view of the need to systematize all information tools and their subsequent optimization.
To date, Kazakhstan has carried out significant reforms of state regulation, but there is still a high burden of administrative regulation.
Goals and objectives of this Concept
Footnote. Subsection as amended by Decree of the Government of the Republic of Kazakhstan dated November 7, 2016 No. 672 (shall be enforced ten calendar days after the day of its first official publication).
The purpose of this Concept is to increase the efficiency of state regulation of entrepreneurial activity by creating a balanced system in which regulation becomes predictable, cheap for business and will be effective in achieving goals and free from corruption.
The achievement of this goal will be ensured through the gradual and systematic solution of the following tasks:
1) reorientation of state control and supervision from detection and punishment to prevention and prevention;
2) creation of conditions for the development of business self-regulation;
3) improvement of rule-making based on the analysis of the regulatory impact and public discussion of draft regulatory legal acts affecting the interests of business;
4) bringing technical regulation in line with world practice and integration processes;
5) establishing proportionate liability in order to stimulate law-abiding behavior;
6) increasing the level of consumer protection;
7) reducing the burden of state regulation of entrepreneurs;
8) systematization and optimization of information tools.
main goal reforming information tools is to reduce the costs associated with these tools for business through a quantitative reduction in information obligations, optimization of information collection methods, and qualitative improvement of individual information tools. Such a reform is possible on the condition that:
creating a system for monitoring information obligations using well-measured indicators of the costs associated with them;
introduction of a systematic approach to the optimization of information tools.
Stages of implementation of state regulation policy
entrepreneurial activity
Footnote. Subsection as amended by Decree of the Government of the Republic of Kazakhstan dated November 7, 2016 No. 672 (shall be enforced ten calendar days after the day of its first official publication).
Three main stages are envisaged.
Stage 1 - preparatory (2014 - 2016). At this stage, it is planned to carry out the following activities:
1) build a system of institutional policy support;
2) to completely reform regulatory instruments.
The key element in building a system of institutional support is the definition of a consultative and advisory body and its place in the system of executive power of the Republic of Kazakhstan.
The reform of regulatory instruments is already underway in the Republic of Kazakhstan. To complete the first stage, it is necessary to complete the reform of the control and supervision system, develop and implement a self-regulation system where possible, and reform information tools.
Stage 2 - procedural (2016 - 2018). At this stage, it is planned to carry out the following activities:
1) develop methods necessary for conducting regulatory impact analysis;
2) to put in place procedures for planning, developing and revising regulations, to ensure a dialogue with public associations;
3) put in place a system of accountability for state bodies.
At the second stage, work will be carried out on the development of:
1) methods of regulatory impact analysis;
2) the procedure for preparing and submitting periodic reports of state bodies on regulatory activities;
3) methods of standard costs.
After the development and testing of the relevant methods, it is planned to conduct appropriate training for civil servants. It is necessary to fully implement the procedures for planning, development and revision of regulations provided for in the Concept, and ensure strict observance of the procedures for public discussion.
At the final part of the second stage, a system of periodic reporting by state bodies on their work on the design and revision of regulations will be fully implemented.
Stage 3 - final (2018 - 2020). This stage provides for:
1) to analyze the performance of the regulatory functions of state bodies;
2) introduce a system for monitoring the effectiveness of public policy;
3) adjust the institutional system, procedures and methodologies.
At the third stage, a pilot analysis of the performance of regulatory functions in one of the state bodies will be carried out. As a result of this analysis, the relevant procedures and methodologies will be refined.
After that, it is supposed to select one state body from each area of state administration and regulation:
1) the sphere of human and social security;
2) financial sphere;
3) humanitarian sphere;
4) the sphere of natural resources.
An analysis of the performance of the regulatory functions of state bodies in each of these areas will provide an opportunity for further refinement of the methods and their further use, taking into account the specifics of the areas of regulation.
The procedure for analyzing the performance of regulatory functions in the future will be carried out for all state bodies.
The results of the first analyzes of the performance of regulatory functions, as well as the analysis of the periodic reporting of state bodies, and research materials should be used to monitor the effectiveness of regulatory policy and be reflected in the corresponding periodic reporting of the consultative and advisory body.
Within the framework of the above stages and sequence of actions in relation to the reform of information tools, the following sequence of its stages is proposed.
Stage 1. 2016 - 2017.
At the first stage, it is necessary to make an inventory of all information tools that exist and are used in Kazakhstan.
In the process of conducting an inventory, public authorities should determine the use of the information collected through the information tool.
Stage 2. 2018 - 2019.
After the inventory, it is necessary to conduct a centralized analysis of all information tools for duplication and requirements for information that is already collected in national databases. Appropriate optimization must be carried out simultaneously for all information tools.
All information tools that will remain after the execution of the previous stages will be accumulated in single list information tools (requirements).
During the implementation of all previous steps, without exception, lessons should be learned and the effectiveness of procedures and techniques should be tested. Relevant changes will be developed by a consultative and advisory body and implemented to improve the efficiency of state regulation of entrepreneurial activity.
Expected results from the implementation of the Concept
From the implementation of the Concept, it is expected to increase the efficiency of state regulation of business activities through:
1) creating a favorable business climate by optimizing the system of state regulation, confirmed by the 45th place in the World Bank's Doing Business rating;
2) creating conditions for the development of self-regulation through the implementation of two pilot projects;
3) reducing the number of inspections in the field of technical regulation in relation to food products more than 20%;
4) ensuring the observability of the state regulation system by maintaining objective and reliable statistics, 100% automation coverage of risk management systems of control and supervisory bodies, approved by joint orders with the authorized body for entrepreneurship;
5) reduction of state budget expenditures related to state regulation of entrepreneurial activity by 10%;
6) reduction of business operating costs associated with regulatory instruments by 10%.
2. Basic principles and general approaches to the sphere of public
business regulation
Footnote. Section 2 as amended by Decree of the Government of the Republic of Kazakhstan dated November 7, 2016 No. 672 (shall be enforced ten calendar days after the day of its first official publication).
The principles of state regulation of entrepreneurial activity are:
1. Balance of interests of consumers, business and the state. The system of state regulation of entrepreneurial activity involves ensuring the most effective protection of consumer rights with a minimum (objectively necessary) burden on business. In such a system, the goals of state regulation are achieved the least costly methods for business and budget.
2. The validity and effectiveness of the use of regulations through the introduction of mandatory procedures for substantiating, agreeing and monitoring the effectiveness of regulations in achieving the stated goals.
3. Transparency in the activities of state bodies and the availability of information. The adoption of socially significant decisions is supposed to be carried out only after public hearings and other forms of dialogue with society. Any information that is not limited to use and necessary for business and consumers should be available and, if possible, provided free of charge.
Rule-making activity involves its implementation with the active involvement of all interested parties in this process based on the use of a centralized system.
4. Responsibility and fairness of punishment through establishing the responsibility of state bodies for non-compliance with the requirements of the state business regulation policy, matching the level of punishment to the level of violation for business, a consistent departure from punitive measures when violations are detected to prevention and motivation to comply with regulatory requirements. Opportunity to appeal against the actions of authorities in higher instances and courts.
5. Freedom from corruption by reducing the opportunities to carry out corrupt actions in the field of state regulation, the elimination of such phenomena as conflict of interest, selective application of law, regulation of monopoly and close to monopoly markets dependent on operators.
6. Comprehensiveness and effectiveness of the implementation of reforms. The effectiveness of the implementation of the Concept will depend on the solution of the tasks set by all state bodies. Industry documents on related areas of reform should be in line with the Concept. Evaluation of the effectiveness of reforms should be expressed in real improvement in the conditions for doing business and customer satisfaction.
The subject of the policy of state regulation of entrepreneurial activity is divided into two main parts:
1) requirements of the legislation necessary for execution;
2) regulatory instruments (regulatory instruments).
The need to divide the subject into these two component parts is due to the significant difference in the methods of conducting policy in each of them.
Legislative requirements are norms of normative legal acts that prescribe mandatory behavior, establish rules, parameters and standards.
Legal requirements are the primary basis for the functioning of any regulation. Examples of such requirements are the requirements for the payment of taxes and other payments and the rules for their calculation, production waste emission standards, requirements fire safety, construction and sanitary and epidemiological rules and hygienic standards, requirements of technical regulations of the Republic of Kazakhstan, Customs Union.
Each action of the executive authority in relation to the business or the document required for delivery or presentation to the authority is based on the need to comply with the requirements of the law and the existence of these specific requirements.
The policy of state regulation of entrepreneurial activity regulates the life cycle of legislative requirements, establishes the necessary conditions the emergence of new requirements, the procedure for their justification and approval, public discussion, the parameters by which the monitoring of the achievement of goals will be carried out, the conditions and procedure for canceling the requirements of the law.
The second part of the subject matter of the policy is the regulatory instruments through which the implementation of the requirements of the legislation is ensured. Regulation tools are divided into four groups:
1) licensing instruments, including licenses, permits, conclusions, registrations, etc.;
2) control instruments, including audit, inspections, investigations, and related orders and sanctions;
3) information tools, including the submission of documents, notifications and certificates, tax, financial and other reporting, other documents, declaring the composition of products, publication of data on bankruptcy, changes in the ownership of enterprises, etc.;
4) tools of self-regulation. Within the framework of this Concept, a self-regulation system is understood as a regulatory tool. In addition, the state plays a key role in the process of replacing regulatory instruments with self-regulation and vice versa.
The policy of state regulation of business activities regulates the composition and procedures for the application of these instruments and their life cycle, establishes the classification of regulatory instruments, the necessary conditions for the emergence of new instruments, the procedure for their justification and approval, public discussion, establishes the adequacy of the choice of instruments used using the results of risk analysis and parameters, on which the achievement of the goals of their use is monitored, the conditions and procedure for their cancellation or replacement.
Approaches to the reform of state regulation of entrepreneurial activity are conditionally divided into two groups. The first group concerns specific regulations and is related to the regulation of their life cycle. The second group has a common character for all state regulation of entrepreneurial activity.
First group. Constantly current policy state regulation of entrepreneurial activity with respect to the specific requirements of the legislation and the tools used is characterized by some cyclicality. The life cycle of legal requirements and tools for their implementation includes:
1) regulatory planning;
2) designing new regulations;
3) revision of regulations;
4) reporting by state bodies.
regulatory planning. The policy of state regulation of entrepreneurial activity regulates the planning by state bodies of legislative and other rule-making activities that establish or change the requirements or tools of state regulation.
Plans are prepared by state bodies on the basis of methods developed by the consultative and advisory body, approved by the heads of state bodies and submitted to the consultative and advisory body in the form of a notification. After that, the plans are published by state bodies on the official Internet resource of state bodies, including a single centralized crowdsourcing system that contains a database of regulatory legal acts and provides an opportunity for each public association to comment in detail and in a structured way, make proposals and discuss both existing regulations and projects. regulations. At the same time, it should be possible to evaluate comments and sort them by date, popularity rating and commenting subjects.
Designing new regulations. State bodies develop draft laws and other regulatory legal acts that establish new requirements or new use of regulatory tools according to plans. They also prepare the accompanying documentation developed and approved in accordance with this Concept.
When preparing accompanying documents for draft regulatory legal acts, state bodies will prove the need to introduce specific regulation. Such projects and accompanying documents are published on the official Internet resource of state bodies.
The verification of compliance with the procedures by state bodies when designing regulations, the reliability and completeness of the justification is carried out by a consultative and advisory body. In cases of revealing violations of the procedure or other disagreements with the state body, the conclusions of the consultative and advisory body are submitted to the leadership of the Government of the Republic of Kazakhstan for consideration.
Revision of regulations. Revision of existing regulations is carried out with a frequency of 5-10 years in accordance with the plans. Government authorities may revise existing regulations at higher intervals based on the analysis of standard cost model data, emergencies, or requests from citizens and organizations.
The consultative and advisory body initiates a revision of existing regulations based on an analysis of the reporting of state bodies, research data or appeals from citizens and organizations.
Bodies and persons with the right of legislative initiative initiate a revision of existing regulations in accordance with the requirements of the legislation of the Republic of Kazakhstan.
National Chamber of Entrepreneurs and others public associations independently initiate revision of existing regulations.
The concept provides for a methodology for reviewing existing regulations only for state bodies. In cases where the consultative and advisory body initiates a revision of existing regulations, it submits an appropriate appeal to the state body, which carries out the revision procedure itself.
In cases where the National Chamber of Entrepreneurs or other public associations initiate a review of existing regulations, they prepare appropriate justifications and submit them to the state and advisory body.
In the course of periodic review, state bodies in each case prove the need for the existence of regulation, change them or cancel them.
The analysis is carried out in order to achieve the regulatory objectives specified in the initial regulatory impact analysis, approved during the design of the regulation, through existing requirements and tools. In such cases, the following steps are provided:
1) analysis of the text of a normative legal act and study of the experience of its application;
2) analysis of the dynamics of indicators of the effectiveness of regulation and their comparison with the data of the analysis of regulatory impact;
3) analysis of the dynamics of business costs using the standard cost model and their comparison with the relevant regulatory impact analysis data;
In other cases (in the absence of an initial analysis of the regulatory impact), the analysis is carried out on the basis of a simplified methodology for assessing the achievement of goals (using a standard cost model). In such cases, the following steps are provided:
1) analysis of the text of a regulatory legal act and study of the experience of its application in order to retrospectively determine the purpose of regulation and the regulations used;
2) retrospective determination of indicators of the effectiveness of regulation, substantiation of their objectivity and reliability;
3) measuring the direct information costs of the business using the standard cost model;
4) preparation of an opinion on the need to change the regulation;
5) if necessary, preparation of a draft amendment to a normative legal act and the corresponding justification.
In both cases, when the requirements and procedures are tightened, the rationale necessarily includes an analysis of the regulatory impact.
Revision materials, analyzes and recommendations are published on the official Internet resource of state bodies.
The verification of compliance with the analysis procedures by state bodies of the reliability and completeness of the analysis is carried out by a consultative and advisory body. In cases of revealing violations of the procedure or other disagreements with the state body, the conclusions of the consultative and advisory body are submitted to the leadership of the Government of the Republic of Kazakhstan for consideration.
Reporting of state bodies.
To form consolidated reports, state bodies submit reports to the consultative and advisory body, which include data on the implementation of plans, shows the dynamics of indicators for achieving regulatory goals, regulatory costs, and budget expenditures. The consultative and advisory body summarizes these reports for all state bodies, analyzes their impact on the development of entrepreneurship, points to systemic shortcomings.
All reporting is published on the official Internet resource of state bodies, including a single centralized crowdsourcing system, for a public analysis of the regulatory impact of existing and newly introduced regulations.
The main tool of the first group of approaches to the reform of state regulation of entrepreneurial activity is the analysis of regulatory impact.
Regulatory impact analysis is an analytical procedure for comparing costs and benefits, taking into account the potential risks associated with the possible introduction of regulatory legal acts that establish requirements that are mandatory for business entities, as well as tools and procedures for ensuring that these requirements are met. In the course of the regulatory impact analysis, a comparative analysis of the costs and benefits of possible alternatives to the introduced new requirement, relevant tools and procedures for their enforcement is carried out.
The analysis of regulatory impact is carried out before the adoption of decisions by state bodies concerning the issues of regulation of entrepreneurial activity.
The main goal of regulatory impact analysis is to increase the efficiency and effectiveness of public policy through the choice of alternative regulatory approaches to more accurately achieve certain goals (solution of well-defined problems).
The objectives of regulatory impact analysis are:
1) a clear definition of the problem to be solved;
2) definition alternative methods problem solving;
3) assessment of the consequences of the adoption of regulation on the solution of the problem and on the costs of all parties involved;
4) determination of measurable indicators for assessing the problem and achieving the goals of state regulation.
The result of the implementation of regulatory impact analysis will be:
1) the possibility of making an optimal and rational decision based on complete and reliable information;
2) saving resources of business entities, consumers and the state budget by reducing the corresponding costs;
3) the ability to objectively monitor the effectiveness of the decisions taken in order to make appropriate adjustments to the regulatory policy.
Regulatory impact analysis is a tool that can be used in any decision-making by governments at both the national and local levels.
At the same time, regulatory impact analysis is associated with certain costs, both of the working time of civil servants and, in some cases, direct costs of budgets. different levels. In addition, conducting a regulatory impact analysis and its subsequent discussion before making decisions can significantly reduce the speed of their adoption and limit the flexibility of authorities.
Taking into account world experience, the Concept defines the following areas for the use of regulatory impact analysis in the Republic of Kazakhstan:
First. Regulatory impact analysis is used exclusively in the design of regulatory decisions affecting the interests of business entities. Decisions that affect the interests of business entities, but do not change the mandatory requirements of the law or the tools and procedures for their implementation are planned without the use of regulatory impact analysis (public investment, subsidies, procurement, and others). Draft decisions on overcoming the consequences of accidents, natural disasters and other emergency situations of temporary action, even if they are of a regulatory nature, are planned without the use of regulatory impact analysis.
Second. Regulatory impact analysis is used when planning draft laws of the Republic of Kazakhstan, technical regulations of the Customs Union, decrees of the Government of the Republic of Kazakhstan, decisions of maslikhats developed by akimats.
Third. Regulatory impact analysis is used if the scope of the draft decision covers more than 100 business entities, regardless of the size of the costs.
Fourth. Regulatory impact analysis is used if the planned decision tightens the requirements, complicates the procedures for their implementation, entails any increase in the costs associated with its implementation only for business entities.
Fifth. Regulatory impact analysis is used when renewing a regulation if it was originally set to expire.
The analysis of regulatory impact in the most complete form provides for the use economic modeling, other resource-intensive methods of collecting and analyzing information. The implementation of such a regulatory impact analysis requires very high qualifications of performers, is difficult to understand for people without special economic education, and requires the use of significant financial resources.
In this regard, to simplify the analysis of regulatory impact, it is assumed:
1) liberalization of the requirements for the measurability of indicators of the existence of a problem that needs to be solved, and the achievement of the goal (benefit) of the designed regulation. For the purposes of liberalization, it is possible to admit the sufficiency of using, in exceptional cases, a clear description of the problem without defining numerical indicators;
2) a temporary departure from the use of digital indicators with recommendations for their definition and collection for future use;
3) regulation of alternatives to the projected regulation. The practice of using regulatory impact analysis in other countries shows that a full-fledged analysis of alternatives is not always carried out. Especially at the initial stages of implementing regulatory impact analysis, government authorities approach the identification and analysis of alternatives formally. For this reason, it is necessary to oblige state bodies to consider the current situation, the possibility of strengthening control over the implementation of existing requirements, responsibility for violations of existing requirements, introducing elements of self-regulation or a notification procedure;
4) determination of only the direct costs of business entities related to the fulfillment of regulatory requirements (administrative costs for the fulfillment of information requirements, the costs of working with inspectors, the costs of necessary investments), direct costs to consumers, if any are foreseen (an example would be raising the price of goods or services with a possible reduction in supply due to reduced competition), direct budget costs, if any are foreseen. When introducing a regulatory impact analysis, an analysis of possible costs due to unused opportunities, other indirect costs will not be carried out;
5) the analysis of regulatory impact will not use the analysis of incremental effects. Benefits and costs are estimated assuming full implementation and functionality of the planned regulation;
6) when analyzing the regulatory impact, the method of economic modeling will not be used. The analysis will be based on a direct comparison of costs and benefits analyzed for each alternative based on a simplified methodology;
7) when introducing a regulatory impact analysis, an analysis of possible risks will not be carried out.
Any regulation is adopted in order to solve a specific problem that, for one reason or another, the market mechanism is not able to solve.
Today, when preparing normative legal acts and substantiating them, state bodies often confine themselves to general formulations of problems. This naturally leads to the impossibility of such general formulations to determine the target groups and performance evaluation indicators. decision subsequently.
When preparing a regulatory impact analysis, it is proposed to pay special attention to a clear definition of problems, disclosure of their manifestations and causes. Manifestations of problems are revealed through digital or, in exceptional cases, qualitative indicators that determine this manifestation. After the adoption of regulation, such an indicator becomes an indicator for evaluating the effectiveness of regulation.
This indicator is also one of the tools for determining the benefits of the proposed regulation. Such indicators, among others, may be the levels of environmental pollution, the number of accidents or incidents, data on the illegal circulation of goods and services, the number of poisonings, injuries.
When determining indicators, a circle of subjects is determined, which are directly or indirectly affected by the manifestation of the problem. Such a circle of subjects, among others, can be consumers of a particular product or service, residents of a particular territory, employees of a particular industry, the state as a whole (in cases affecting state security).
It is proposed to pay special attention to the reliability of indicators and the frequency of their measurements. The reliability of indicators depends on the way they are measured (collection of primary information, its generalization). In order to conduct regulatory impact analysis, to ensure the reliability of indicators and the possibility of their re-measurement, it is supposed to use the following sources:
1) data of statistical authorities and tax authorities;
2) data of state bodies obtained in the process of processing reports, data on occurrences, measurements;
3) data of law enforcement agencies;
4) data from sociological and other studies conducted by organizations with a positive reputation.
The mandatory sections of the regulatory impact analysis include:
1) definition of the problem that needs to be solved by the introduction of regulation, indicating digital indicators of its manifestation and a clearly defined circle of subjects affected by this problem. If the problem is complex, it is allowed to divide it into component parts, for each of which a digital indicator of manifestation and a circle of subjects are determined;
2) determination of the causes of the problem with a clear indication of all cause-and-effect relationships. In the analysis of cause-and-effect relationships, statistical correlations and other methods of analysis are used. Particular attention is paid to the description of unaccounted possible factors of influence (externalities) on the existence of the problem;
3) description of the mechanisms of influence of the designed regulation on the causes of the problem and its solution;
4) a clear definition of the beneficiaries (beneficiaries) of the proposed regulation;
5) determination of the benefits from the regulation project with the design of the dynamics of indicators based on the monetized or other benefit of the beneficiaries;
6) description and analysis of mechanisms of influence that are alternative to the planned regulation of measures, identification of the relevant beneficiaries (beneficiaries), determination of benefits from alternative measures;
7) determination of the circle of cost subjects from the introduction of regulation. In such a definition, it is necessary to detail which types of business will incur costs (including regional, industry, and other aspects), and provide an approximate number of business entities that will incur costs. Separately, it is necessary to indicate other entities that will incur direct or indirect costs (including budgets, categories of the population);
8) the costs of implementing the draft regulation are calculated for each category separately. Expenses are calculated in monetary form or in other digital form in cases where the monetary form cannot be used. Transfer payments are clearly accounted for. In exceptional cases, non-numerical costs are reported in descriptive form.
Cost types for business entities include:
1) the costs of fulfilling information obligations (time spent in terms of the price of a man-hour);
2) payment for forms, services or fees;
3) the costs of the equipment necessary for installation, its maintenance;
4) other investments in fixed assets;
5) the costs of compulsory insurance, if such is introduced;
6) costs of expert examinations and other conclusions issued by third parties;
7) travel expenses and waiting in queues;
8) payment for advanced training courses, other forms of education;
9) membership fee, subscriptions to periodic information publications, other periodic payments.
For all the presented alternatives to the draft regulation, the circle of cost subjects is determined and the corresponding costs are calculated according to the approaches presented above:
1) comparative analysis of the generalized data of benefits and costs of the regulation project and its alternatives;
2) a conclusion with recommendations on the regulation project, the necessary database changes for the implementation of indicators and recommendations on the frequency of monitoring the effectiveness of the regulation project.
The grounds for returning the analysis of regulatory impact for revision are its incomplete or dishonest execution, logical errors made during the analysis. The regulatory impact analysis is sent for revision with a clear indication of all causes and recommendations for correcting the deficiencies.
The regulatory impact analysis is returned for revision in the following cases:
1) the absence of one or more of the above mandatory sections of the regulatory impact analysis;
2) the absence of digital indicators in the definition of the problem, if any, or a clear circle of actors affected by this problem;
3) lack of analysis of possible externalities;
4) superficial or deterministic analysis of the mechanisms of influence of alternative measures, their benefits;
5) incomplete accounting of possible types of costs;
6) inattention to double or transfer payments, periodicity of costs;
7) surface or deterministic cost accounting for alternatives to the draft regulation;
8) inaccuracy of primary information, lack of relevant references.
A detailed methodology for conducting a regulatory impact analysis with accompanying instructions, examples and training manuals is developed by an advisory body with the involvement of experts, associations, scientific and other organizations.
The advisory body is developing a training program for civil servants on the use of the regulatory impact analysis methodology.
To ensure transparency and publicity of the ongoing regulatory impact analysis procedure, it is necessary to use a unified centralized system for public analysis of the regulatory impact of existing and newly introduced regulations, containing a base of normative legal acts and providing an opportunity for each entity participating in the regulatory impact analysis procedure, and citizens to independently enter into the system documents, comment in detail and in a structured way, make proposals and discuss both the current regulations and draft regulations. At the same time, it should be possible to evaluate comments and sort them by date, popularity rating and commenting subjects.
The second group of methods refers to the full range of functioning of the regulatory system.
These methods include:
1) comprehensive reform of regulatory instruments;
2) analysis of the performance of regulatory functions;
3) tracking the effectiveness of state regulation of entrepreneurial activity.
Comprehensive reform of regulatory instruments.
Regulatory instruments fall into four categories:
1) licensing instruments;
2) instruments of control and supervision;
3) information tools;
4) tools of self-regulation.
For the successful implementation of state regulation of entrepreneurial activity, it is necessary that the instruments be streamlined and consistent with the principles of policy as a whole.
The reform of state control and supervision instruments is as follows.
In order to further optimize the control activities of state bodies, it is proposed to switch to organizing inspections based on risk assessment, taking into account the abolition of scheduled inspections of business entities, reducing the requirements to be verified in the exercise of state control and supervision, clearly regulating the implementation of other forms of control and unscheduled inspections, full automation of the risk management system, elimination of duplication of control functions of state bodies.
It is also necessary to work out the issues of applying alternative forms of control and security (liability insurance, personal financial guarantees, public control).
It will be necessary to identify control functions unusual for the state, the implementation of which will be more effective in a competitive environment with their subsequent transfer to self-regulation.
To ensure strict compliance with the requirements of laws, increase the transparency of planning and conduct an objective analysis of the control and supervisory activities of state bodies, it is proposed to implement full automation of risk management systems.
As a result of automation, a database will be formed that will allow obtaining reliable data on the verification activities of state bodies for their subsequent analysis and appropriate decision-making.
Automation of the risk assessment system will ensure minimal human involvement in planning inspections and collecting data on their results. As a result of automation, a reliable database on the verification activities of state bodies will be formed, which will be used to analyze the regulatory impact. In this area, it is proposed to automate the risk assessment system at the stages of planning, conducting and completing inspections.
At the planning stage of inspections, the selection of subjects for inclusion in the inspection plan will be carried out without human participation based on the risk assessment criteria that will be included in automated system. At the stage of conducting inspections in an automated mode, it is proposed:
1) register an act on the appointment of an audit in the bodies of legal statistics through electronic document management;
2) record all stages of inspections and control all terms (beginning, suspension, extension, completion) of inspections;
3) reflect the results of checks in the system (including detected violations).
As a result of automation of the risk management system, government agencies will ensure the following:
1) full implementation of the analysis for the continuous improvement of risk assessment, which will reduce the burden on law-abiding entrepreneurs and increase the effectiveness of state control and supervision;
2) tracking the process from planning to completion of inspections for each audited entity;
3) contributing to the elimination of corruption manifestations on the part of inspectors;
4) identification of "unnecessary" requirements;
5) simplification of the document flow procedure and increase in the efficiency of the use of working time;
6) reliability of departmental reporting data.
As a result of the automation of the risk management system, the transparency of the control and supervisory activities of state bodies will be ensured.
Revision of the issues of proportionality of administrative sanctions to the nature and danger of offenses, a clearer differentiation of the responsibility of small, medium, large businesses.
In accordance with long-term plan legislative works of the Government of the Republic of Kazakhstan for 2015-2016 ensured the development and adoption on November 12, 2015 of the Law of the Republic of Kazakhstan "On Self-Regulation".
At the same time, there are elements of self-regulation in the current legislation of Kazakhstan in certain industries.
As a rule, self-regulatory organizations are created in industries where the association of entities is carried out on a professional basis.
This direction is the most long-term and directly depends on the effectiveness of the implementation of all other areas of the Concept.
It should be taken into account that a serious revision of the legislation of Kazakhstan will be required. For a long time it has been improved in the direction of a clear regulation of the powers of officials and limiting the possibilities for making subjective decisions. Much attention was paid to the fight against corruption. In other words, a balanced system of state regulation was built, in which the powers of civil servants were subject to restrictions, decision-making procedures were strictly formalized, responsibility was tightened, including the formation of anti-corruption legislation. To introduce full-fledged self-regulation, it is necessary to carry out the same serious work in relation to the functions transferred to self-regulatory organizations.
Self-regulation is a set of rules developed, legitimately adopted and executed by business entities by representatives of a certain industry, without direct dependence on state regulation. As a broader concept, self-regulation is also seen as regulation that includes various forms of co-regulation, in which the state approves the self-regulation regime, or self-regulation and state regulation are carried out in parallel and complement each other. Self-regulation is based on the ability of economic operators, social partners, non-governmental organizations or associations to accept among themselves and for themselves general rules at the country level (codes professional ethics or industry agreements).
The areas of self-regulation can be the professional services of lawyers, doctors, accountants, auditors, real estate agents, architects. There are other areas of self-regulation: in the environmental sector, the advertising industry, Internet service providers and alcohol advertising, print media, healthcare providers.
The self-regulatory mechanism includes not only the development of rules that guide industry professionals, but also the provision of services for the industry and consumers, including mechanisms for handling claims and resolving conflicts.
The relationship between legal requirements and the self-regulatory system can take various forms:
1) self-regulation can be carried out in the form of setting a set of rules in the absence of regulation by the state;
2) self-regulatory norms can operate alongside legislation, setting higher standards for the industry;
3) self-regulation can replace existing state regulations, in case the industry accepts the obligation to carry out self-regulation, and the state regulations are revised.
The self-regulation system may consist of the following elements:
1) the code of honor of the association of entrepreneurs of a certain industry, inclusive, with a system of sanctions for its non-fulfillment;
2) the system of introduction to the profession, namely, education and preparation for examinations or qualification tests, preparation of examination materials and qualification tests and their administration;
3) participation in the control and supervision carried out by the state regulatory body, namely, joint inspections, preparation of control sheets, risk assessment;
4) development of recommendations for changing legislation;
5) consideration of consumer and member complaints self-regulatory organization, conflict resolution, sanctions, statistics;
6) other quality control activities in the industry.
The benefits of self-regulation include that it can replace burdensome government regulation with a less burdensome form or mitigate the negative aspects of government regulation. Self-regulation rules can be more flexible, adaptable to market conditions and costs. Practitioners with detailed industry knowledge can set better standards and more effectively detect violations.
The benefits for the state are associated with lower costs and the need for personnel, the transfer of costs and burdens to the market participants themselves, and the creation of better conditions for cooperation in the market.
Self-regulation also promotes collaboration and collaboration within the industry, replaces confrontation with relationships based on cooperation and partnership, and exploits the potential for pressure from other industry enterprises to comply.
On the other hand, self-regulation by professional and industry organizations should balance the public interest with the private interests of its members and avoid anti-competitiveness.
Analysis of the performance of regulatory functions. The analysis of the performance of the regulatory functions of state bodies is carried out in order to compensate for the institutional interest of state bodies to maintain the status quo when revising regulations, reducing state budget funds allocated for the performance of regulatory functions, optimization staffing and management structures of state bodies. Analysis of the performance of regulatory functions is carried out by commissions established under state bodies.
Such commissions should include representatives of a consultative and advisory body, a state body that analyzes the performance of regulatory functions, the National Chamber of Entrepreneurs, the ministries of finance and the national economy.
Representatives of the consultative and advisory body are appointed chairmen of the commissions. The methodology for analyzing the performance of regulatory functions is developed by the authorized body for entrepreneurship based on the recommendations of the consultative and advisory body and approved by the Government of the Republic of Kazakhstan.
The consultative and advisory body is responsible for the organizational support of the work of the commissions.
Based on the results of the analysis of the performance of regulatory functions, a report and recommendations are prepared, which are approved by the chairman of the commission. These documents, as well as the dissenting opinion of the state body, if it differs from the report and recommendations of the commission, are submitted to the leadership of the Government for consideration.
The procedure for analyzing the performance of regulatory functions includes:
1) analysis of documents establishing the functions and responsibilities of the state body;
2) analysis of the sphere of regulation for which the state body is responsible, with an emphasis on achieving the stated goals of regulation;
3) analysis of the reporting of the state body on the revision of regulation;
4) revision of legal requirements and relevant regulatory impact analyzes, analysis of the use of regulatory tools;
5) analysis of the staffing and structure of the state body, a survey of employees and heads of the state body in order to optimize the management and performance of the entrusted regulatory function;
6) consultations with the leadership of the state body;
7) preparation of a report and recommendations.
Tracking the effectiveness of state regulation of entrepreneurial activity.
A necessary component of any state policy is a system for monitoring its implementation. In the policy of state regulation of entrepreneurial activity, it is necessary to control the implementation of procedures and requirements by state bodies. It is necessary to analyze the periodic reporting of state bodies, dialogue with non-governmental organizations, independent research, track indicators of achieving the goals of regulation and the costs of business under the influence of regulation.
An integrated system of monitoring should be built and the institutional possibility of its implementation should be provided, relations between regulatory state bodies and structures conducting monitoring and supervision should be regulated, and the responsibility of civil servants for violations committed in the implementation of state policy should be established.
The central element of monitoring the effectiveness of state regulation of business activity is the periodic reports of the consultative and advisory body, which summarize the performance of indicators for achieving the goals of regulation and the costs of business and the budget using a standard cost model.
Another element of such monitoring is the periodic targeted and general research carried out by independent organizations. Targeted research is carried out on a specific regulation, field of activity or industry. General research is carried out across the spectrum of regulatory policy. An example of such research is the assessment of the price of the regulatory or investment climate of the state through a sociological survey of enterprises. In such studies, it is important that they are carried out periodically and monitor the dynamics of indicators.
Advisory body.
The consultative and advisory body is supposed to be created on the basis of the current Interdepartmental Commission on Business Regulation under the chairmanship of the First Deputy Prime Minister, whose members will be representatives of state bodies at the level of deputy first heads of state bodies, national associations of entrepreneurs, consumers, as well as other persons from interested bodies and organizations.
Organizational support for the consultative and advisory body will be provided by a working body, the functions of which will be performed by the authorized body for entrepreneurship with the involvement of independent experts, employees of departmental and independent analytical organizations. The head of the working body of the consultative and advisory body will be the deputy head of the authorized body for entrepreneurship.
The functions of the advisory body will include:
1) methodological support of work related to planning, development and revision of regulatory legal acts that establish regulatory requirements and tools;
2) coordination of plans of state bodies in terms of developing draft laws and other regulatory legal acts that establish new requirements and tools, and revision of existing requirements and tools;
3) preparation of opinions on the execution of design procedures and revision of regulatory legal acts;
4) conducting a preliminary analysis or organizing a complete analysis of related documents in the design or revision of regulatory legal acts and preparing relevant conclusions;
5) analysis of periodic reporting of state bodies and preparation of relevant approvals and conclusions;
6) development of appropriate methods and monitoring of the implementation of the policy of state regulation of entrepreneurial activity;
7) methodological support of work and participation in the process of optimizing the resources and structures of state bodies for the effective implementation of the policy of state regulation of entrepreneurial activity.
Also, this Concept is aimed at reforms in the following priority areas:
1. Technical regulation. Technical regulation in Kazakhstan differs from world practice.
It will be necessary to analyze the world experience in order to bring the law enforcement practice of Kazakhstan in line with it.
At the same time, technical regulation is of an umbrella nature, when many different legal requirements with a large number of reference norms are combined under one regulatory legal act - technical regulations, which entails duplication of functions of state bodies, including control and supervisory ones.
A number of measures in this direction are already envisaged by the Program for Technical Regulation and Creation of Quality Infrastructure for 2010-2014.
As part of the Concept for further reform of the licensing system, permits issued for products will be identified. In the future, it is proposed to abandon such permits and regulate products only by means of technical regulation. In turn, technical regulation makes it possible to use the mechanisms of business self-regulation to a large extent.
In the field of technical regulation in a competitive environment, expert work, writing voluntary standards, and so on can be carried out.
The current model of state control in the field of technical regulation is aimed at controlling the object of control and does not ensure the implementation of the main principles of regulation: prevention and suppression of the sale of hazardous products.
The situation is exacerbated by poor awareness and low literacy of end users. In Kazakhstan, the activities of consumer rights protection societies are not developed due to the lack of resources and legislative instruments of influence.
In order to ensure the safety of products, processes and prevent the practice of deceiving consumers, there is a need to take a number of measures to correct the existing system of technical regulation.
A fundamental solution to the problem of inspections requires the introduction of a set of measures that will be aimed both at improving the efficiency of the work of state control bodies and protecting the legitimate rights and interests of private businesses.
According to the European experience, it is proposed to introduce market surveillance, which will systematically solve existing problems related to the safety and quality of final products based on a clear delineation of rights, duties and tougher responsibilities of market participants.
Thus, the state will be able to transfer to the market the function of security control, in case of violation of which severe penalties will follow, up to material compensation for the damage caused.
It is necessary to consider the issue of creating an information system for alerting hazardous products at the state level, which will ensure timely and efficient exchange of data on hazardous products within the framework of the Common Economic Space, in the future with the EU system (RAPEX).
Such a system will allow building effective system monitoring the fulfillment of the requirements established in the unified Technical Regulations of the Customs Union.
On the other hand, an important guarantee of product safety and an alternative to state control is insurance of civil liability of market participants (certification bodies, importers, producers, etc.) to consumers for product quality, for harm caused by the produced (sold) goods or rendered works, services .
Insurance should be carried out in the event of the insured's property liability to consumers for the sale of products that do not comply with technical regulations and regulatory technical documents on standardization.
However, it should be borne in mind that liability insurance, although it is an effective measure to ensure product safety, will increase the burden on business entities.
In this regard, the implementation of this tool should be approached carefully. This question needs to be worked out from the point of view of the ratio economic effect from insurance and business expenses.
In view of the fact that technical regulation instruments allow not only to protect the market from evil quality products, but also solve the problems of increasing the competitiveness of domestic products, by establishing safety and quality requirements that meet international requirements, it is necessary to regulate standardization issues. This will make it possible to fill in the existing gaps, eliminate the negative trends in standardization that appeared during the implementation of the technical regulation reform, realize the strategic interests of the state (ensuring technological re-equipment, implementation state order, defense capability, environmental protection, social protection of the population), promote innovative technologies and improve the energy efficiency of the economy.
In the Republic of Kazakhstan, mandatory certification still prevails, while it is necessary to develop certification on a voluntary basis. Voluntary certification has an advantage over mandatory due to the expansion of the concept of "quality". Here, such requirements can be considered that the buyer considers the most significant, while in mandatory certification there is a certain list of normatively established operational parameters.
As part of the implementation of the Concept, it is necessary to take a number of measures aimed at developing business self-regulation in terms of the introduction and wider use of voluntary certification.
The implementation of these measures will reduce administrative pressure on business by reducing the range of objects subject to mandatory assessment (confirmation) of conformity in those areas where there are minor risks, while focusing the certification tool on potentially hazardous products.
It is also necessary to introduce a mechanism of public monitoring, in which the control activities of the state in relation to the quality of goods will be gradually replaced by mechanisms for handling consumer complaints and independent examinations.
2. Protection of consumer rights. Any reforms aimed at improving the business environment should be carried out taking into account the need to maintain at the proper level the protection of the rights and interests of the consumer. At the same time, a consumer can be understood as a fairly wide range of subjects. So the state is a consumer of business services and goods in public procurement, entrepreneurs are consumers of state services when receiving public services and so on.
In Kazakhstan, since 2010, the Law of the Republic of Kazakhstan “On Protection of Consumer Rights” has been in force, which defines the legal, economic and social foundations protection of consumer rights, as well as measures to provide consumers with safe and high-quality goods (works, services).
According to the Law of the Republic of Kazakhstan "On Protection of Consumer Rights", consumer protection is carried out by all state bodies within their competence.
At the same time, until November 2013, the authorized state body in the field of consumer protection was the Agency of the Republic of Kazakhstan for the Protection of Competition, whose work was formal, due to the lack of both legislative and actual powers to take measures to respond to consumer complaints, which are often multi-sectoral in nature. .
As a result, a number of problems have arisen in this area, the solution of which must be approached comprehensively.
Currently, the problems that exist in the field of consumer protection include:
1) insufficient work of state bodies on consumer complaints. Despite the fact that consumer protection should be carried out by all state bodies within their competence, given function is not implemented. Public authorities are more interested in conducting scheduled inspections than in responding to consumer complaints;
2) lack of analysis of the work of central state and local executive bodies in terms of identifying and solving problems in the field of consumer protection;
3) the existing judicial system does not allow for quick and efficient consideration of consumer protection cases. Currently, the burden of proof lies with the consumer as an equal party to civil legal relations, and this often leads to a passive attitude of the consumer in protecting their rights and interests. At the same time, elderly people, children, housewives are most often deceived;
4) weak work of public associations for the protection of consumer rights. Currently public associations of consumers operate in isolation, do not have stable sources of funding, powers, qualified personnel, and there is no coordination of their activities;
5) outdated material and technical support for research and examination of the quality and safety of products (expert laboratories) or lack thereof due to certain types research;
6) low level of awareness and consumer culture of the population due to the lack of publicly available information;
7) the presence of many violations of consumer rights in the form of deceptive advertising and sales on the Internet, additional payment for unordered services, various violations during sales, sweepstakes, and more.
To solve these problems, it is proposed:
1) to determine one of the focuses of the work of the authorized body in the field of consumer protection is the consideration of consumer complaints at the regional level. For this it is necessary structural units empower the authorized body in the field of consumer protection in all regions with the relevant powers. This will allow more prompt and timely response to specific facts of harm to life, human health, the environment, as well as increase public confidence in the activities of the specified authorized body.
At the same time, it is supposed to consider the issue of empowering the authorized body in the field of consumer protection with the right to pre-trial settlement of conflicts arising from violations of consumer rights. Thus, the authorized body in the field of consumer protection could approve settlement agreements between entrepreneurs and consumers whose rights have been violated;
2) introduce an assessment of the activities of central state and local executive bodies for the implementation of functions for the protection of consumer rights with the maintenance of an appropriate rating;
3) to expand the mechanisms of self-defense by the consumer of their rights. For example, you can grant the right to record the violation of his rights through video and photography.
It is necessary to carefully study the experience of developed countries in terms of determining the status of the consumer or individual target groups (pensioners, children, housewives) as the most vulnerable with the provision of appropriate advantages in the litigation, including studying the world practice of pre-trial agreement, when the parties make a compromise decision without resorting to court;
4) study and adapt to the conditions of Kazakhstan the world experience in terms of the possibility of providing various measures of state support for existing consumer protection societies in order to improve the quality of their work;
5) develop and support the work of national centers for research and examination of product quality and safety;
6) create a special independent Internet resource where the consumer will be able to view information about the company, its trademarks, as well as the goods (works, services) provided, write a complaint and, accordingly, receive a response directly from the company.
In addition to complaints, consumers will be able to comment and give preference for a particular product (work, service), which will allow consumers to focus on quality.
Entrepreneurs are offered voluntary registration on the site, which gives the company the opportunity to respond to consumers' complaints, claims and reviews. Such a dialogue between the consumer and the entrepreneur will allow manufacturers to conduct marketing research in order to improve the quality of goods (works, services).
When voluntarily registering on an Internet resource, an entrepreneur joins the Memorandum on the provision of quality goods (works, services);
7) in order to increase the level of legal literacy of consumers, wide coverage in the media is necessary and in public places(cinemas, television, public transport) state policy and the work of the authorized body in the field of consumer protection in this direction;
8) identifying inappropriate advertising and combating it (especially on the Internet) should also become priorities for the work of the authorized body in the field of consumer protection and all other state bodies in supervised areas.
As a result of such work, a multiplier effect can be obtained: the identification of non-conforming products, the improvement of laboratory discipline, the growth in the consumption of quality products and the feedback from the state to consumers.
Approaches to the reform of information tools
Footnote. Section 2 is supplemented by a subsection in accordance with the Decree of the Government of the Republic of Kazakhstan dated November 7, 2016 No. 672 (shall be enforced ten calendar days after the day of its first official publication).
The purpose of working with information tools within the framework of state regulatory policy is to reduce the costs associated with the information obligations of business entities, optimize the collection and processing of information, and better inform public authorities. To this end, it is recommended to identify the following priority areas for this work:
1) carrying out a clear functional classification of information tools to put things in order in their use and avoid duplication;
2) development of a system for the use of information tools, determination of the boundaries of their effective functioning and achievement of goals;
3) reduction and optimization of information requirements and costs of information tools necessary for the execution by business entities;
4) assessment of the administrative costs of business in connection with the fulfillment of information requirements.
The reform of information tools involves the creation of the necessary institutional and methodological framework.
For full coverage of all information tools, their classification and qualitative formation of their list, an expert group will be created under the advisory and advisory body from among representatives of government bodies and the business community.
State bodies carry out an inventory of information obligations, for which purpose an analysis of each information tool (requirement) is carried out by determining the group of this tool, the use of the information provided, indicative costs by the stages of execution of the information tool.
State bodies should identify the indicator value of the working time spent on the fulfillment of elements (stages) of information obligations, such as:
1) study of instructions;
2) acquisition, installation and use of technologies and systems;
3) search for data sources;
4) completion and revision of the collection of information;
5) information transfer.
The results of the inventory will be considered by the expert group and based on the results of the discussion, depending on the effectiveness in achieving the goals, a decision will be made to cancel or revise each information tool.
According to the results of the inventory, it is recommended to classify them according to their functional characteristics.
To do this, it is proposed to use the division into the following groups:
1) fulfillment of the requirements of the legislation before third parties. For example, labeling, declaration, mandatory instructions, service rules, other information required to be provided to consumers, information in the framework of bankruptcy proceedings, on changes in the structure of ownership, other information about private business entities that is required to be provided to third parties;
2) regular mandatory reporting to public authorities (with the exception of tax, statistical and financial periodical reporting);
3) a one-time submission of information to state bodies (forms, extracts, declarations, notifications, other documents filled out by private entrepreneurship entities submitted to state bodies as part of registration, licensing procedures or other appeals to state bodies).
This category also includes notifications of the start or termination of entrepreneurial activities, the list of which is approved by the Appendix to the Law of the Republic of Kazakhstan “On Permits and Notifications”.
The final list of information tools will be submitted for consideration to the advisory body.
Further optimization of the use of information tools is possible through a detailed analysis of specific requirements or information obligations. The main criterion for such an analysis is the use of the information provided by its recipient (usually a state body). Sometimes private businesses provide information that is either not used at all, or the usefulness of its use is limited. Information requirements that contain these types of information should be reviewed first.
In many countries, including Kazakhstan, integrated databases of business entities have been created or are being created. The use of such databases can significantly reduce the amount of information required from private businesses, because a certain amount of permanent and historical information is already in these databases, and integrating these databases with the requirements of various government agencies avoids duplicating the provision of requirements by private businesses.
This point should be taken into account when conducting an inventory of information tools and their subsequent optimization.
The steps described above to optimize information tools, when fully implemented, will lead to a reduction in the number of information requirements for private businesses.
The next step is to review the information obligations for cost reduction.
International experience and the experience of Kazakhstan show that such a reduction is possible and effective in cases where the political leadership of the state sets certain quantitative goals for such a reduction.
For example, after a quantitative reduction and inventory of the remaining information tools, it is possible to determine the goal of reducing time costs and, accordingly, the financial costs of private business entities.
The list of normative legal acts through which
implementation of the Concept is expected
Footnote. The list as amended by Decree of the Government of the Republic of Kazakhstan dated November 7, 2016 No. 672 (shall be enforced ten calendar days after the day of its first official publication).
The implementation of the Concept is expected through the following regulatory legal acts:
1. Code of the Republic of Kazakhstan dated July 5, 2014 "On Administrative Offenses".
2. Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015.
3. Law of the Republic of Kazakhstan dated May 31, 1996 "On public associations".
4. Law of the Republic of Kazakhstan dated November 27, 2000 "On Administrative Procedures".
5. Law of the Republic of Kazakhstan dated November 9, 2004 "On technical regulation".
6. Law of the Republic of Kazakhstan dated November 12, 2015 "On self-regulation".
7. Law of the Republic of Kazakhstan dated April 6, 2016 "On legal acts".
For the first time in Kazakhstan, an entrepreneurial code was adopted, in which. Chapter 7 is devoted to the issues of legal regulation of entrepreneurship by the state. While consolidating the freedom of entrepreneurship, it is impossible not to notice the growing role of state regulation in promoting the development of entrepreneurship. The organizational forms of interaction between state bodies and private business entities are being modified, significant shifts are taking place in the goals, mechanism, management apparatus, in a combination of state and market regulation mechanisms. The definition of state regulation sounds like: "a set of measures of legislative, executive and judicial authorities, as well as control functions carried out on the basis of regulatory legal acts by state institutions and public organizations in order to stabilize the existing socio-economic system." According to Article 80 of the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the RK), state regulation of entrepreneurship should be carried out to ensure the safety of goods, works, services produced and sold by business entities for the life and health of people, to protect the legitimate interests of entrepreneurs and the state. Environmental safety and national security of the Republic of Kazakhstan are also priority goals of state regulation of entrepreneurship. The history of the formation in Kazakhstan of the system of state regulation of entrepreneurial activity in the new market conditions is interesting. During the first years of independence, a legal framework was developed to regulate the relations of private property, civil society and freedom of enterprise. Problems of regulation by state bodies were solved as they arose, by introducing new regulatory instruments. In this regard, preference was given to permissive instruments. Permits are the easiest tool to administer, but are subject to the highest corruption risks. At the same time, for entrepreneurs as subjects of regulation, the introduction of permits became a significant barrier to entry into the market. And in the presence of complex and sometimes impossible requirements, such a barrier is insurmountable for small businesses. Realizing the need to limit the arbitrary introduction of business regulation, the state carried out reforms aimed at improving the efficiency of state regulation. In 2006, the Law of the Republic of Kazakhstan “On Private Entrepreneurship” was adopted, which provided for the creation of expert councils under state bodies. As a result, businesses got the opportunity to participate in the development of regulatory legal acts through expert councils established under the central state, local representative and executive bodies. The principles of state protection and support of private entrepreneurship, criteria for determining the dimension and much more have been fixed. In 2007 normative base was replenished with the Law of the Republic of Kazakhstan "On Licensing", which approved an exhaustive list of types of licensed activities and new principles of licensing. Consistently introduced the principles of "one window" for coordination with all government agencies when obtaining licenses, "silence is a sign of consent" are extended to all permits, a single period for issuing licenses is set - 15 working days, verification of the submitted package of documents for completeness within two days, the obligatory notarization of documents. The issuance of all licenses has been transferred to an electronic format for permits that are not associated with a direct risk to the life and health of citizens, are of an informational nature and do not affect the provision of security from high threats, a notification procedure has been introduced. A certain role in reforming the issues of state control and supervision in relation to business entities was played by the Law of the Republic of Kazakhstan “On State Control and Supervision in the Republic of Kazakhstan”, adopted in 2011. In the process of implementing this law, the level of departmental acts of state bodies that establish mandatory requirements for business has increased. In particular, more than 250 legal acts have been raised to the level of resolutions of the Government of the Republic of Kazakhstan. A three-year ban on scheduled inspections of small businesses, introduced in 2012, became a big incentive for business development. And, as already noted, on October 29, 2015, the President of the Republic of Kazakhstan signed the Entrepreneurial Code of the Republic of Kazakhstan, which entered into force on January 1, 2016. The pre-existing the legislative framework, regulating legal issues entrepreneurship, eliminated gaps and contradictions, systematized the socio-economic and legal conditions and guarantees for ensuring the freedom of entrepreneurship. The result of the reforms carried out was to be a significant reduction in the pressure of regulatory authorities on business. Changes have been made in such areas as the opening of an enterprise, taxation, and the protection of investors. The Entrepreneurial Code, in addition to systematizing the provisions of the relevant laws on the principle of homogeneity, consolidated uniform principles, measures of state support for private entrepreneurship, the agro-industrial complex, industrial innovation, investment activities, and special economic zones. The earlier reform of the licensing system and state control and supervision provided an inventory of the relevant regulatory instruments and their approval only at the level of laws, with the recognition of illegitimate all other permits and control functions that were not included in the relevant lists of laws. This approach ensured that entrepreneurs were protected from the arbitrary introduction of new onerous regulatory instruments. State control and supervision is aimed, among other things, at detecting violations and preventing them. The provision on the priority of the prevention of an offense before punishment is fundamental. In practice, fines are most common as sanctions, and warnings are less common. The high penalty rate indicates that fines are applied even to minor violations, even though international practice is moving in the direction of notices of improvement. The Entrepreneurial Code consolidated the basic principles of state regulation of relations with the participation of business entities, marked by the Concept of the Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020, approved by Decree of the President of the Republic of Kazakhstan dated August 24, 2009 No. 858. Such as: guaranteeing the freedom of private enterprise (it is allowed to carry out any types of activities that are not prohibited by the legislation of the Republic of Kazakhstan), ensuring its protection and support (the principle of freedom of private enterprise); equality of all business entities to carry out entrepreneurial activities (principle of equality of business entities); guarantee of inviolability and protection of property of business entities (principle of inviolability of property); action of business entities within the limits of the Constitution of the Republic of Kazakhstan and normative legal acts adopted in accordance with it (principle of legality); stimulation of entrepreneurial activity, including support and priority for the development of small businesses (principle of stimulating entrepreneurial activity); participation of business entities in the examination of draft regulatory legal acts, texts of international treaties and other obligations of the Republic of Kazakhstan affecting the interests of entrepreneurship (principle of participation in rule-making). On April 18, 2014, the Government of the Republic of Kazakhstan approved the Concept of State Regulation of Entrepreneurial Activity until 2020, which was adopted in pursuance of the instructions of the Head of State. Implementation of the Concept provides for the achievement of goals and the solution of tasks to create a balanced system of state regulation that is cheap for business and free from corruption. The effectiveness of measures of state regulation of entrepreneurial activity also depends on the stability of the institutional structure of entrepreneurial activity. Improving legislation leads to the creation and continuous change of various laws, which, by the fact of their repeated and unsystematic changes, can indirectly affect business. Entrepreneurs note that they have to spend more time to understand constantly changing regulations, which leads to an increase in both explicit and implicit transaction costs. State regulation of entrepreneurial activity should take into account the impact of collective actions, as well as informal institutional restrictions on the development process business structures. Summing up, it should be noted that state regulation of entrepreneurial activity is the most important lever of a market economy, where the main instrument is law, which can have a great regulatory impact on the main areas of society, including entrepreneurial activity. State regulation of entrepreneurial activity is necessary both in order to ensure the implementation of the public interests of society and the state, and to create best conditions for the development of entrepreneurship, with close interaction between entrepreneurship and the state.
The duration and complexity of the process of entrepreneurship development lead to the need for program-targeted management of this process, therefore, in many respects, the success of entrepreneurship development depends on the central government authorities.
The prospective development of entrepreneurship focuses on two important areas:
1. Creation of large organizational and economic structures (should give the economy stability and manageability, open the way to the large-scale implementation of scientific and technical innovations.
2. Development of small business (should create a competitive environment, provide production with flexibility and individualization).
Within the framework of the first direction, quite powerful organizational and economic structures of a new type are emerging - state, mixed and private corporations, concerns, as well as commercial and industrial groups that are able to successfully operate in the domestic and foreign markets. Organic interweaving of large and small manufacturing companies with powerful financial institutions(commercial banks, insurance and investment institutions), as well as transport, trade and information structures form financial and industrial groups with truly enormous production and financial capabilities. The functioning of such groups is the progress of modern social production and at the same time a condition for its further development. Financial and industrial groups arise and become stronger under the influence of the need to develop large-scale scientific research and development, to use the most complex technical and technological complexes, industrial cooperation, to effectively withstand the sharp fluctuations in business conditions. In addition, the experience of developed Western countries shows that national capital is able to compete with transnational corporations, foreign financial and industrial groups, if structured into powerful financial and industrial formations, closely interacting with government agencies, work in a legal regime that adequately takes into account the peculiarities of the national and world economy.
Legal regulation of entrepreneurship
The issue of the legal foundations of state regulation of entrepreneurship cannot be disclosed without characterizing the content of the principles for implementing such a policy. The principles of state regulation of entrepreneurship are fundamental ideas enshrined in legal norms, in accordance with which the mechanism of statehood of Kazakhstan in the field of entrepreneurship is organized and functions. These principles are part of objectively existing general principles state administration, which are enshrined in the current legislation and are used in the process of governing the country.
The principle of legality is a comprehensive legal principle. It applies to all forms of legal regulation, is addressed to all subjects of law. The main content of this principle is the requirement of the strictest observance of laws and by-laws based on them. The legitimacy of state regulation of entrepreneurship means that its measures comply with current legislation and are applied in the manner prescribed by law. A sufficient number of high-quality legal norms, along with a high level of their implementation by all subjects of legal relations, is the basis for ensuring the regime of the legality of the activities of economic entities. The principle of legality is the basis for the functioning of both the state as a whole and entrepreneurial activity in particular.
The principle of expediency of state regulation of entrepreneurship is that it should be used only when certain problems in the development of entrepreneurship can be solved with its help and when the negative consequences of its application do not exceed those achieved with its help. positive effect. The purpose of the application of state regulation is to create obstacles to violations of legal norms. The content of state regulation measures is subject to the principle of justice. Justice is one of the general principles of law, is the guiding principle of legal regulation. The fairness of state regulation is ensured by the fact that the rules of law establish the equality of business entities before the law and are expressed in accordance with the scope of the regulatory impact of the nature of the offense, in their proportionality.
The next principle of state regulation of entrepreneurship is the mutual responsibility of the state and business entities. At the same time, the state, which performs functions in this area through the legislative, executive and judicial authorities, is legally recognized as the main subject for ensuring the safety of entrepreneurial activity. The state must ensure not only the safety of every person, but also give guarantees in ensuring the safety of business activities.
According to paragraph 1 of Article 4 of the Law of the Republic of Kazakhstan "On Private Entrepreneurship" dated January 31, 2006, the main goals of state regulation of private entrepreneurship are: creating favorable conditions for the development of private entrepreneurship and protecting the interests of the state and consumer rights by introducing the administration of private entrepreneurship. In accordance with paragraph 2 of Article 4 of the Law of the Republic of Kazakhstan "On Private Entrepreneurship" dated January 31, 2006, the main principles of state regulation of private entrepreneurship are:
Guaranteeing the freedom of private enterprise and ensuring its protection and support;
Equality of all subjects of private entrepreneurship in the implementation of entrepreneurial activities;
Guarantee of inviolability and protection of private property (property of private business entities);
Priority for the development of small business in the Republic of Kazakhstan;
Participation of private business entities in the examination of draft regulatory legal acts affecting the interests of private business.
The right of everyone to freedom of entrepreneurial activity is concretized within the framework of civil legislation and, above all, in its basic principles. In accordance with paragraph 1 of Article 2 of the Civil Code of the Republic of Kazakhstan (general part), civil legislation is based on the recognition of the equality of participants in the relations regulated by it, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for unhindered exercise of civil rights, ensuring the restoration violated rights, their judicial protection. In accordance with paragraph 2 of Article 2 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities acquire and exercise their civil rights by their own will and in their own interest. They are free to establish their rights and obligations on the basis of the contract and to determine any conditions of the contract that do not contradict the law.
The realization of the right to freedom of entrepreneurial activity is guaranteed by the norms of the current legislation in the form of determining the limits of legal regulation of private entrepreneurial activity and the establishment of prohibitions addressed to state authorities and administration to restrict the freedom of entrepreneurship.
In accordance with paragraph 2 of Article 10 of the Civil Code of the Republic of Kazakhstan, the state guarantees freedom of entrepreneurial activity and ensures its protection and support.
State guarantees of freedom of entrepreneurial activity are established in the Law of the Republic of Kazakhstan "On Protection and Support of Private Entrepreneurship".
Article 14 of the law guarantees a private entrepreneur the opportunity to freely exercise the following rights:
· create any types of enterprises, the organization of which does not contradict the legislative acts of the Republic of Kazakhstan;
Acquire all or part of a property state enterprises and enterprises based on other forms of ownership, other property and related property rights;
when the ownership of buildings and structures (including those not completed by construction) is transferred, along with these objects, the right of ownership or permanent land use is transferred to land plot in the manner and on the terms established by the land legislation of the Republic of Kazakhstan;
participate with their property and property legally obtained in the activities of other economic entities;
Use by agreement of the parties the property of legal entities and citizens;
hire and fire any number of employees on the terms of a contract or on terms that do not contradict the legislation of the Republic of Kazakhstan;
· establish forms, systems and amounts of remuneration and other types of income of persons working for hire;
· to form a program of economic activity, to choose suppliers and consumers of manufactured products (works, services), to perform work and deliveries for state needs on a contractual basis;
· independently establish prices, rates and tariffs for goods (works, services) sold, except for cases determined by the norms of the current legislation of the Republic of Kazakhstan;
· open bank accounts, including for keeping money and carrying out all types of settlement, credit and cash transactions;
· to freely dispose of income from entrepreneurial activity remaining after paying taxes and making other obligatory payments;
receive unlimited income;
Use at your choice various systems social security and social insurance;
· to appeal in accordance with the established procedure against the actions of state and other bodies that infringe on his rights or legitimate interests;
· act as a participant in foreign economic relations and carry out currency transactions;
· carry out other actions related to entrepreneurial activity, if they do not contradict the legislation of the Republic of Kazakhstan.
The above and other rights of private entrepreneurs to freely carry out entrepreneurial activities are protected by law. Paragraph 3 of Article 10 of the Civil Code of the Republic of Kazakhstan defines ways to protect the rights and legitimate interests of entrepreneurs, providing for:
The possibility of carrying out entrepreneurial activities without obtaining anyone's permits, except for licensed types of activities, the list of which is established in Article 9 of the Decree of the President of the Republic of Kazakhstan, having the force of law, dated April 17, 1995 No. 2200 "On Licensing";
The most simple direct procedure for registration of all types of entrepreneurship in all sectors of the economy in one registration authority;
Limitation by legislative acts of inspections of entrepreneurial activities carried out by state bodies, which is regulated by the Law of the Republic of Kazakhstan “On taxes and other obligatory payments to the budget”, the Law of the Republic of Kazakhstan dated June 19, 1997 “On Individual Entrepreneurship”; Decree of the President of the Republic of Kazakhstan dated April 27, 1998 "On the protection of the rights of citizens and legal entities to freedom of entrepreneurial activity";
The possibility of forced termination of entrepreneurial activity only by a court decision, issued on the grounds and in the manner determined by legislative acts;
Establishment by legislative acts of a list of works, types of goods and services that are prohibited for private entrepreneurship, prohibited or restricted for export or import;
Possibility of involving state bodies, officials, as well as other persons and organizations to establish property liability to entrepreneurs by law for unlawful obstruction of their activities;
Prohibition of executive control and supervisory bodies to enter into contractual relations with business entities for the purpose of fulfilling the duties that are the functions of these bodies;
Other means provided by the legislation, including: the Law of the Republic of Kazakhstan dated July 4, 1992 "On the Protection and Support of Private Entrepreneurship" (as amended), the Law of the Republic of Kazakhstan dated June 19, 1997 "On State Support for Small Business", decree President of the Republic of Kazakhstan dated March 6, 1997 "On measures to strengthen state support and enhance small business" .
The activity of an entrepreneur is aimed at making a profit, at obtaining property benefits. In this case, we can talk about a possible commercial risk, possible adverse property consequences of the entrepreneur's activities (due to both omissions in work and related to improper fulfillment of one's obligations).
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