Chapter I. Methodological foundations of the status self-regulatory organizations in civil law.

§ 1. The concept and legal nature of self-regulatory organizations in the civil law of Russia: essence and content.

§ 2. History of the Russian legislation on self-regulation and self-regulatory organizations.

§ 3. Experience in regulating the activities of self-regulatory organizations abroad.

Chapter II. Features of civil law regulation of the activities of self-regulatory organizations

§ 1. Acquisition of the status of a self-regulatory organization.

§ 2. Features of the legal regulation of the activities of self-regulatory organizations.

§ 3. Features of the relationship of self-regulatory organizations with some participants in civil circulation, providing the activities of their members.

§ 4. Problems of relations between self-regulatory organizations and authorized federal executive bodies.

Introduction to the thesis (part of the abstract) on the topic "Legal regulation of the activities of self-regulatory organizations"

The relevance of the research topic is determined by the actively developing process of the transfer by the state of many of the most important types of entrepreneurial and professional activity on self-regulation, which is accompanied by a constant increase in the number of self-regulatory organizations (SROs), since the institution of self-regulation is considered by public authorities as one of the main elements in the process of debureaucratization of the country's economy and the formation of regulatory bodies not through their administrative appointment, but through proactive and responsible actions by the most active professionals. In this regard, models are being developed for combining state regulation of the economy with self-regulation of subjects economic activity.

At the same time, in the civil science of Russia there is still no common understanding legal status SROs, and theoretical definitions of the main legal categories used in the process of self-regulation have not been developed. Moreover, well-known domestic civilists do not yet pay due attention to the theoretical aspects of self-regulation. As a result, in the absence of a properly developed doctrine on the status and main functions of SROs, the legislation governing their activities remains fragmented and contradictory. The gaps in federal legislation and the lack of authority to resolve these issues at the level of local regulations cause quite serious problems in law enforcement practice.

In addition, there is no generally recognized positive assessment of the necessity and significance of the activities of these organizations in the business and professional communities, i.e. subjects of many types of entrepreneurial, cultural, educational, educational and other socially significant activities are not ready to work in conditions of self-regulation. A vivid example of this is the sharply negative position of patent attorneys on the initiative of some deputies of the State Duma of the Federal Assembly of the Russian Federation to unite them into SROs1.

From this point of view, it is relevant to clarify the status of SROs as subjects of civil law, to identify an effective mechanism for civil law relations between SROs and other subjects of law, to develop a concept for self-regulation of socially significant types of entrepreneurial and professional activities, as well as to make proposals aimed at improving Russian legislation in this area. areas.

The stated facts allow us to speak about the relevance of the topic of this dissertation research.

The degree of scientific development of the dissertation topic. The theoretical basis of the study was the ideas and works of jurists of different times. Among them are both representatives of classical Russian legal science and Russian scientists, in particular, T.E. Abova, V.K. Andreev, K.N. Annenkov, I.A. Gemini, S.N. Bratus, L.I. Bulgakova, E.H. Vasilyeva, E.V. Vaskovsky,

B.V. Vitryansky, E.P. Gavrilov, H.JI. Duvernoix, A.A. Evetsky, I.V. Ershova,

C.S. Zankovsky, O.S. Ioffe, K.D. Kavelin, N.I. Klein, N.V. Kozlova, O.A. Krasavchikov, V.V. Laptev, D.I. Meyer, V.P. Mozolin, I.B. Novitsky, V.V. Orlova, G.D. Otnyukova, E.A. Pavlodsky, A.P. Pechnikov, N.V. Rostovtseva, O.A. Ruzakova, A.P. Sergeev, L.S. Simkin, V.N. Sinelnikova, E.A. Sukhanov, E.V. Talapina, Yu.A. Tikhomirov, Yu.K. Tolstoy, V.E. Chirkin, L.I. Shevchenko, G.F. Shershenevich, V.F. Yakovlev and others.

The dissertation used the works of economists, in particular, P.V. Kryuchkova2, D.M. Lyubavina3, A.V. Volzhanin4, as well as foreign

1 See: Open letter- objection to the adoption of the draft law No. 478949-5 “On Amendments to Certain Legislative Acts Russian Federation on issues of self-regulation of the activities of patent attorneys”, sent by a team of patent attorneys of Tomsk to the State Duma // Invention. 2011. No. 3. S. 18-22; Discussing draft law No. 478949-5 on self-regulation of the activities of patent attorneys // Patent Attorney. 2011. No. 2. S. 2-35.

2 Kryuchkova P.V. Self-regulation as a discrete institutional alternative to market regulation: Diss.doc. economy Sciences. M., 2005.

3 Lyubavin D.M. Formation of self-regulating business communities as a factor in improving the competitiveness of small businesses: Diss. economy Sciences. M., 2006. researchers in the field of self-regulation, including J. Black, John Lunstroth, John Horsfield-Bradbury, Fabrizio Cafaggi.

The issues of introducing self-regulation in certain areas of entrepreneurial and professional activity were considered in the works of R.N. Aganina, E.V. Vladyki, E.G. Dorokhin, V.N. Lisitsa, N.V. Sukhareva and other authors.

Certain legal problems of SRO activities are reflected in the studies recent years. So, in the dissertation of O.N. Maksimovich5, self-regulation is considered from the perspective of the method of influencing social relations. A.V. devoted her work to self-regulatory organizations as subjects of business law. Basova6. General provisions of the legal status of SRO

7 R analyzed by D.O. Grachev. I.G. Zhurina studied the civil law status of self-regulatory organizations, and A.Yu. Kolyabin9 and T.V. Dzgoev10 - the legal status of some varieties of these subjects. YES. Posunko11 investigated some issues of SRO in the light of associations legal entities.

However, the results obtained in the existing works do not allow solving many theoretical and practical problems of self-regulation. In addition, there are no legal studies of SROs as subjects of law in the light of their purpose, including in terms of limiting state intervention in civil law relations.

4 Volzhanin A.B. Self-regulatory organization of arbitration managers: Diss. cand. economy Sciences. M., 2007.

5 Maksimovich O.N. Self-regulation in the field entrepreneurial activity as a manifestation of the civil law method of regulating public relations: Diss. legal Sciences. Kazan, 2007.

6 Basova A.B. Self-Regulatory Organizations as Subjects of Business Law: Diss. legal Sciences. M., 2008.

I Grachev D.O. Legal status of self-regulatory organizations: Diss. legal Sciences. M., 2008.

8 Zhurina I.G. Civil law status of self-regulatory organizations in the Russian Federation: Diss. legal Sciences. M., 2009.

9 Kolyabin A.Yu. Self-regulatory organization of arbitration managers as a legal entity: Diss. legal Sciences. M., 2007.

10 Dzgoev T.V. Legal status self-regulatory organization of auditors: Diss. cand. legal Sciences. M., 2009.

II Posunko YES. Holding as an entrepreneurial association (on the example of the agro-industrial complex): Diss. cand. legal Sciences. M., 2007.

Thus, self-regulatory organizations as a legal phenomenon need further scientific understanding, and their legislative regulation needs to be improved.

The purpose of the dissertation research is based on the study legal regulations, scientific literature, law enforcement and judicial practice conduct a comprehensive analysis of theoretical and practical problems of legal regulation of SRO activities, based on the results of which to develop evidence-based recommendations aimed at improving the legal status of SROs, increasing the efficiency of SROs and improving domestic legislation in this area.

In accordance with the purpose of the dissertation work, scientific task: to explore the theoretical problems of the creation and effective functioning of SROs, to clarify the definitions of the main legal categories used in the field of SROs, and to identify the problems of legal regulation in the area under study.

Research tasks:

Formulate the concept of professional activity in relation to members of the SRO;

Reveal the legal nature of a self-regulatory organization, as well as formulate a definition of the concept of "self-regulatory organization";

Suggest grounds for distinguishing standards and rules of SROs and formulate definitions of these legal categories;

To identify and justify the danger of the SRO turning into an extra administrative link;

Determine the most effective ways and measures to ensure proper compliance by SRO members with the conditions and procedures for carrying out entrepreneurial or professional activities;

Conduct a comparative legal study of the legislation on SROs and develop proposals and recommendations aimed at unifying the said legislation;

Identify problems in the legal regulation of SRO activities and formulate proposals for their elimination.

The object of the research is the social relations that arise in the process of creation and operation of SROs, considered in theoretical and practical aspects.

The subject of the study are laws and other regulations regulating issues of the creation and operation of SROs, legislative regulation of interaction between SROs and public authorities, the practice of resolving disputes related to the application of the norms of Russian legislation on SROs by arbitration courts and courts of general jurisdiction, research by Russian and foreign scientists on this topic, as well as the practice of activity SROs in various sectors of the economy.

Methodological basis research. In the process of work, the author used general methods of scientific knowledge, including methods of empirical research (observation, comparison, etc.), as well as methods used both in theoretical (analysis, synthesis, forecasting, modeling, etc.) and in practical level. The dialectical method and the method of system analysis served as the basis for studying the patterns of development of types of regulation of professional and entrepreneurial activities. Poor knowledge of the object of study predetermined the need to use such general scientific methods of cognition as analysis and synthesis. Of the set of private scientific and special research methods, formal legal analysis, the historical method, and the method of comparative law, which allow a comparable analysis of various norms of law, were most often used. The combination of these methods made it possible to carry out a comprehensive theoretical analysis of the legal category under study, to identify its essence, to identify the shortcomings of the theoretical framework and the legal framework, and to formulate proposals for improving the legislation governing the activities of SROs

The empirical basis of the study was the regulatory legal acts of the Government of the Russian Federation, the Ministry of Economic Development and Trade of the Russian Federation, the Federal Commission for the Securities Market and others. government agencies regulating relations in the sphere of self-regulation; Resolutions of the Plenums Supreme Court Russian Federation and the Supreme Arbitration Court of the Russian Federation on the application of the legislation of the Russian Federation for the period from 1996 to 2009; materials of the current office work of state bodies from 2005 to 2009; results of inspections of self-regulatory organizations of arbitration managers and self-regulatory organizations of appraisers conducted by the Federal Service for State Registration, Cadastre and Cartography for the period 2005-2010; local regulations adopted by the SRO of arbitration managers. In addition, more than 50 court decisions were analyzed, including those of the European Court of Human Rights, the Constitutional Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation, the Federal Arbitration Courts of Moscow, Volga-Vyatka, West Siberian, Far Eastern, Volga, North -Western, North Caucasian, East Siberian districts, as well as Arbitration courts of Moscow, Penza region, St. Petersburg and Leningrad region for the period from 1981 to 2010.

The scientific novelty of the study lies in the fact that the dissertation is one of the first comprehensive monographic studies of the legal status of SROs as subjects of civil law performing certain state functions. In the study, in contrast to existing scientific works, for the first time the definitions of standards and rules of SROs were developed and substantiated, the concept of a self-regulatory organization as a subject of civil law (legal entity of private law) with certain public law qualities was disclosed, a definition of professional activity was given in relation to SRO members , which until now have not been the subject of independent scientific development. Based on the results of the study, conclusions were drawn and proposals of theoretical and practical significance were made, aimed at improving the legal regulation of SRO activities. The results obtained are intended to significantly complement and develop not only theoretical basis self-regulation, but also the provisions of domestic legislation on SROs.

The scientific novelty of the dissertation research is specified in the provisions and conclusions submitted for defense, which are either new in general or have elements of scientific novelty.

X. In relation to members of the SRO, professional activity should be considered independent and initiative activity individuals who have a higher professional or secondary professional education or vocational training carried out through private practice or on the terms employment contract for the purpose of providing services, performing works, selling goods, as well as using property and receiving systematic income.

The main distinguishing feature of professional activity from entrepreneurial activity is that a legal entity cannot carry out professional activity, it only uses the results of the professional activity of its employees in order to systematically make a profit.

2. It has been established that SROs, being non-profit organizations consolidating private law interests, have the powers (to regulate and control the entrepreneurial and (or) professional activities of their members) that are more typical for state bodies. The expansion of the functions of the SRO is due to the fact that the state, within the framework of its policy of reducing the managerial, socio-cultural and other functions of state bodies, delegates the performance of certain state functions to the SRO. With this in mind, the following definition is proposed:

A self-regulatory organization (SRO) is a professional or sectoral association of individuals and (or) legal entities that have the right to independently and proactively carry out entrepreneurial and (or) professional activities, created on the basis of membership, in the form of associations or unions in order to develop standards and rules for entrepreneurial and (or) professional activities of its members, entered in the relevant state register of self-regulatory organizations and empowered to implement state control for compliance accepted standards and rules by its members, as well as having the right to establish and apply a system of disciplinary measures to its members for their violation.

The fundamental novelty of this definition is, firstly, that in it the SRO is endowed with the powers of state control, otherwise its control is no different from the control of the employer. Secondly, the sign - non-profit organizations has been replaced by professional or industry associations, unions, since SROs unite specialists of one profession or a certain industry. This proposal takes into account the provisions of the Concept for the Development of Civil Legislation of the Russian Federation on expanding the subject composition of associations and unions by including individuals in them. Thirdly, the definition added the authority of the SRO to establish and apply a system of disciplinary measures to its members for violating the standards and rules of business or professional activity.

3. Definitions of standards and rules of a self-regulatory organization have been formulated:

The SRO standard is a local regulatory and technical act that establishes, in accordance with the requirements of federal legislation and on the basis of the unification of business practices, procedures, criteria, standards and a detailed procedure (technology) for the actions of members of a self-regulatory organization in the course of their entrepreneurial or professional activities;

SRO rules are a local regulatory legal act, containing requirements for entrepreneurial and professional activities of members of a self-regulatory organization, formulated on the basis of practical experience in a particular area, taking into account the norms of the current legislation.

4. The danger of the SRO turning into an unnecessary administrative link - an intermediary between the state and persons engaged in professional activities, which tends to monopolize, inevitably leading to unreasonably high membership and entrance fees, as well as a significant increase in the cost of training services, advanced training and certification of specialists , as well as certification of goods (works, services) produced by SRO members.

To prevent the trend that has arisen, it is necessary to eliminate the restrictions established by Art. 5 of the Federal Law of December 1, 2007 No. 31510

Federal Law "On Self-Regulatory Organizations", that an entity carrying out a certain type of activity can be a member of only one self-regulatory organization that unites subjects of professional or industry activities.

12 Collection of Legislation of the Russian Federation. 2007. No. 49. Art. 6076. (as amended on July 27, 2010 No. 240-FZ)

5. It has been established that, under the current legislation, a person expelled from an SRO for violating the conditions and procedures for carrying out entrepreneurial or professional activities may join another SRO and continue its activities. Only at the request of the authorized state body, the court may decide to disqualify the named person. Thus, exclusion from SRO members as a measure of disciplinary action does not perform a preventive and preventive function.

In order to increase the responsibility of SRO members and strengthen the legality of entrepreneurial or professional activities, it is advisable to introduce a rule in the Federal Law “On Self-Regulatory Organizations” that a person expelled from an SRO is deprived of the right to re-enter the SRO of the relevant type of activity within three years (i.e. . actually a ban on the profession). If the excluded person is a member of another SRO that unites the subjects of this entrepreneurial or professional activity, then he is obliged to suspend his activities in it for three years.

6. A comparative analysis of the legislation on self-regulatory organizations showed that SROs can unite both individuals and legal entities, and only individuals (for example, appraisers) or only legal entities (for example, unions of agricultural cooperatives). In the same time

Federal Law No. E07-FZ of December 30, 2008 “On Auditing Activities” provides for the possibility of dual membership of individuals in SROs: auditors (Part 1, Article 4); b) indirect membership: if an individual (auditor) concludes an employment contract with

13 Collection of Legislation of the Russian Federation. 2009. No. 1. Art. 15. (harm, dated December 28, 2010 No. 400-FZ) by an audit organization through an audit organization that is also obliged to be a member of one of the self-regulatory organizations of auditors (part 1 of article 3).

In order to exclude dual membership of individuals in SROs and unify legislation, it is advisable to change the subject composition in the field audit activity by analogy with valuation activities, namely: to exclude legal entities from the number of subjects of audit activity (respectively, members of the SRO). This will expand access to the profession, as well as increase the personal responsibility of auditors for the quality of their professional activities.

7. Members of the SRO often submit to the SRO along with reports on their activities confidential information about intellectual property(belonging to them or third parties, in whole or in part), who are entitled to get acquainted with it. At the same time, in accordance with the norms of part four of the Civil Code of the Russian Federation, the SRO does not have the right to use this information or dispose of it. However, there is a real risk that such information will be passed on to interested parties. The issue of keeping official secrecy is of particular relevance in relation to SROs of patent attorneys, since the interaction of a patent attorney with a customer is confidential. At the same time, the SRO does not bear the responsibility provided, for example, by art. 1472 of the Civil Code of the Russian Federation, for violating the exclusive right to a production secret (know-how) of third parties, since it is not a person obliged to maintain the confidentiality of such information in accordance with paragraph 2 of Art. 1468, p.Z Art. 1469 or paragraph 2 of Art. 1470 of the Civil Code of the Russian Federation, as well as by a person who illegally received information constituting a production secret and disclosed or used this information.

In order to protect exclusive rights to the results of intellectual activity and to means of individualization of counterparties of SRO members, as well as to prevent disclosure without the consent of the author or applicant of the essence of an invention, utility model or industrial design before the official publication of information about them, it is proposed to include in the Federal Law "On Self-Regulatory Organizations" and Federal Law No. 98-FZ of July 29, 2004 “On Commercial Secrets”14, which provides for the responsibility of the SRO for the actions of its employees and members of the collegiate management body who are not employees and members of this organization, related to the unlawful use of official secrets obtained them by virtue of their official position. Also, the Federal Law “On Self-Regulatory Organizations” should include a provision on the obligation of SROs to establish for their employees and independent members of SRO bodies recognized as such in accordance with Part 2 of Art. 17 of the Federal Law "On Self-Regulatory Organizations", requirements for their confidentiality in relation to third parties. *

In addition, according to the dissertation student, it is advisable to supplement the principles of civil law with the principle "Inadmissibility of arbitrary disclosure of information constituting an official secret." For these purposes, it is proposed to amend the Civil Code of the Russian Federation, adding paragraph 1 of Art. 1 of the Civil Code of the Russian Federation after the words "inadmissibility of arbitrary interference by anyone in private affairs" with the words "and disclosure of information constituting an official secret."

The dissertation also substantiates other proposals for solving the most pressing theoretical and practical issues of legal regulation of the activities of SROs, including determining the procedure for the development of federal standards by national associations of SROs.

Scientific-theoretical and practical significance of the dissertation research. The study makes a certain contribution to the development and deepening of scientific knowledge about the legal nature and legal status of SROs, about the relationship between self-regulation and state regulation of subjects of civil law.

14 Collection of Legislation of the Russian Federation. 2004. No. 32. Art. 3283. (as amended on July 24, 2007 No. 214-FZ)

The results of the work can be used in legislative activities aimed at improving the legal regulation of SRO activities; in lecture courses teaching materials and other manuals on civil and business law; practicing lawyers in the process of legal support for the creation and activities of SROs.

Approbation of the research results. The dissertation was discussed and approved at the Department of Civil and Business Law of RGAIS. The main provisions, conclusions and recommendations formulated in the dissertation were reported by the author at scientific and practical conferences, and are also reflected in 13 publications of the author, including abroad.

The proposals and recommendations of the author, formulated on the basis of the results of the dissertation research, are accepted for practical use by the International School of Management "Intensive" of the Russian Academy public service under the President of the Russian Federation, Federal tax service, NP "Interregional Self-Regulatory Organization of Professional Arbitration Managers", NP "Ural Self-Regulatory Organization of Arbitration Managers". ,

The main theoretical conclusions and provisions, as well as practical recommendations for improving the legislation on SROs, developed in the course of the dissertation research, were sent to the Committee of the State Duma of the Federal Assembly of the Russian Federation on civil, criminal, arbitration and procedural legislation in the form of proposals and a letter of thanks was received for the opinions expressed and proposals that can be taken into account in the legislative process.

The structure of the dissertation is determined by the purpose and objectives. The dissertation research consists of an introduction, two chapters, combining seven paragraphs, a conclusion and a bibliographic list.

Dissertation conclusion on the topic “Civil Law; business law; family law; international private law”, Gerasimov, Andrey Alekseevich

Conclusion

Domestic and foreign experience shows that self-regulatory organizations play a significant role in a market economy as a tool to limit state intervention in civil law relations, with the help of which all kinds of needs of the state and society are realized. The formation and development of the institution of self-regulatory organizations make it possible to establish the proportions of socio-economic development, contribute to the reduction of administrative barriers to entrepreneurial and professional activities, and contribute to the development of civil society.

A market economy urgently requires the formation of a mechanism for interaction between state authorities and economic entities as a long-term determination of the possibilities and prospects for self-government. This is achieved by legal restriction of state power, which can be implemented, in particular, through the institution of self-regulatory organizations that allow citizens to exercise the constitutional right to freedom of economic activity by involving various groups of subjects of civil law in its regulation on mutually beneficial terms. When creating a system of self-regulatory organizations in modern Russia, it is necessary to take into account both domestic and foreign experience in this area.

The formation and implementation of the powers to carry out certain functions of state bodies by self-regulatory organizations is a rather complex and lengthy process, which includes the activities of government bodies and business entities for

323 As rightly noted by S.S. Zankovsky, the focus on cooperation between the government and the business community should become one of the most important provisions related to state regulation economics, which it is expedient to formulate in federal legislation. See: Zankovsky S.S. Prospects for the development of legislation on entrepreneurship // Entrepreneurial Law. Appendix "Business and law in Russia and abroad". 2010. No. 3. P. 16 - 18. definition of areas of activity in which self-regulation should be developed, the formation of requirements for organizations applying for the authority to exercise public functions, registration of self-regulatory organizations and control over the performance of public functions by them. This process is in the sphere of complex legal regulation. The presence of the public law component is determined by the special target orientation of the formed legal relations, the direct participation of the state in the relations under consideration.

Currently, the Russian Federation has created a mechanism for the formation of self-regulatory organizations and the transfer of certain functions of state bodies to them. However, in the process of exercising these powers, a clearer understanding of the legal nature of self-regulation and self-regulatory organizations is necessary. In particular, it should be borne in mind that self-regulation is only an addition to, and not a replacement for, state regulatory management the main areas of production and provision of services. At the same time, self-regulation in the proper sense of the word cannot be decreed. Legislation can only create conditions for a long process of self-organization of subjects of entrepreneurial and professional activity, determining, based on state priorities, the areas that a self-regulatory organization has the right to regulate.

AT modern conditions legal regulation of the activities of self-regulatory organizations, it is necessary to change approaches to assessing the concept of "self-regulatory organization"! A self-regulatory organization should not be considered as an independent organizational and legal form of a legal entity. This approach is supported by the fact that in accordance with Part 6 of Article 3 of the Federal Law “On Self-Regulatory Organizations”, the status of a self-regulatory organization is acquired and lost by a non-profit organization by respectively entering information about it in the state register of self-regulatory organizations or deleting this information from the specified register. If a non-profit organization is deprived of the said status, the named legal entity continues to exist in the previous organizational and legal form determined by the Civil Code of the Russian Federation or the Law “On Non-Commercial Organizations”.

The method of acquiring the status of a self-regulatory organization and the basis for the implementation of their activities by members of the SRO are the criteria on which the legal classification of self-regulatory organizations should be based.

The assignment of the status of a self-regulatory organization to a non-profit organization is preceded by a preliminary stage at which the authorized state body, which is the federal executive body, checks the compliance of the potential self-regulatory organization that has filed the relevant application with the requirements established by law.

A self-regulatory organization has a number of features that make it possible to distinguish it from the general mass of legal entities. These include functioning in the form of a non-profit organization, formation on the basis of membership, official registration of a non-profit organization in the status of a self-regulatory organization, and the implementation of certain functions of state bodies.

The implementation of certain public functions by self-regulatory organizations predetermines the need to establish a requirement for mandatory membership in a self-regulatory organization. A self-regulatory organization is a special subject of civil law relations, endowed with certain powers of a prerogative nature necessary for the implementation and protection of public interests, since the said organization performs some functions of a public nature. A self-regulatory organization has the right to exercise control over the observance by its members of the legislation of the Russian Federation, to develop certain types normative legal acts, etc.

The study made it possible to determine the limits of the civil legal personality of self-regulatory organizations, which is more limited in comparison with the civil legal personality of not commercial organizations, which do not have the status of self-regulatory organizations, since, unlike the latter, self-regulatory organizations, according to general rule, cannot carry out entrepreneurial activity even when it serves the achievement of the goals for which they were created, and corresponds to these goals.

Also, the mentioned study allowed us to conclude that the obligation of a self-regulatory organization to ensure additional property liability of its members, established by the legislation on self-regulatory organizations, is not a civil liability of the named organization for the obligations of its members arising as a result of causing harm due to defects in goods produced by a member of the self-regulatory organization ( works, services), but as a measure to protect the civil rights of consumers of goods (works, services) created by members of a self-regulatory organization.

In the study of the relationship of self-regulatory organizations with some participants in civil circulation, ensuring the activities of their members, a violation by self-regulatory organizations of the constitutional rights of their members to freedom of economic activity and freedom of choice of persons with whom they can conclude civil law contracts, established by part 1 of article 8 of the Constitution Russian Federation and Article 1 of the Civil Code of the Russian Federation. This violation of the rights of SRO members is due to the right of these organizations to oblige their members to conclude contracts only with accredited organizations. It has also been established that this power of self-regulatory organizations limits competition, since non-accredited organizations are deprived of the opportunity to conclude agreements with members of the self-regulatory organization. Moreover, the rights of an indefinite number of persons who are consumers of services (works) provided by SRO members to a fair contract price are violated, which contributes, for example, to an increase in the costs of arbitration management, and thereby reducing the ability of creditors and the debtor, respectively, to return their funds and restore solvency.

Therefore, depriving self-regulatory organizations of the authority to establish a ban on concluding contracts with non-accredited organizations is appropriate. It is also necessary to supplement the Federal Law “On Self-Regulatory Organizations” with a norm establishing General requirements, conditions and grounds for accreditation by self-regulatory organizations of participants in civil relations that ensure the activities of SRO members. In addition, in order to prevent the identified tendency for the SRO to become an unnecessary administrative link that tends to monopolize, it is advisable to exclude the restrictions established by Art. 5 of the Federal Law "On Self-Regulatory Organizations", that an entity carrying out a certain type of activity can be a member of only one self-regulatory organization that unites subjects of professional or industry activities.

When considering the problems of relations between self-regulatory organizations and authorized state bodies, an imbalance was revealed between the rights and obligations of self-regulatory organizations and the rights and obligations of authorized state bodies, and the absence of norms regulating the interaction of these persons was established.

In addition, based on the analysis of law enforcement practice, the improper performance of the control function by self-regulatory organizations of arbitration managers and self-regulatory organizations of appraisers was established. This is due to the fact that, firstly, the same type of relations that develop in the exercise of state control (supervision) over the activities of self-regulatory organizations do not have a unified legal regulation. Secondly, the current legislation does not regulate the terms for consideration by self-regulatory organizations of complaints against their members.

The revealed shortcomings of the modern legislation of the Russian Federation regulating the activities of self-regulatory organizations create an objective premise that the main task of most self-regulatory organizations is to represent the interests of the members of these organizations, that is, to carry out lobbying activities, and not to comply with the state interest and work for the good of society. Implementation by self-regulatory organizations of narrowly focused interests instead of socially significant ones is unacceptable and is subject to mandatory harmonization in order to create these organizations. This task can be solved by improving the legislation on self-regulatory organizations, including the elimination of the shortcomings noted above:

Supplementing the Federal Law "On Self-Regulatory Organizations" with Article 22.1, which regulates the procedure for the development by national associations of self-regulatory organizations and the approval of federal standards by authorized federal executive bodies;

Introduction of civil liability of self-regulatory organizations for failure to perform and (or) improper performance of the functions assigned to them by the state;

Establishing a unified procedure for the exercise by authorized federal executive bodies of control (supervision) over the performance by self-regulatory organizations of the federal executive bodies transferred to them for the exercise of certain powers;

The extension to self-regulatory organizations of the provisions of the Federal Law "On the Procedure for Considering Appeals from Citizens of the Russian Federation".

A self-regulatory system can be transparent, structured and accountable only if, on the one hand, business and professional entities are ready for self-regulation, and, on the other hand, the powers and responsibilities of self-regulatory organizations are spelled out in detail in the law and an appropriate state authority is established for them. control.

The recent increase in financial potential and some stabilization financial system Russia today contribute to the implementation of many vital important tasks reforming the economy and society. Under these conditions, the institution of self-regulatory organizations in the system of state regulation can and should play a significant role in the development of a market economy system in the Russian Federation.

Please note that the scientific texts presented above are posted for review and obtained through original dissertation text recognition (OCR). In this connection, they may contain errors related to the imperfection of recognition algorithms. There are no such errors in the PDF files of dissertations and abstracts that we deliver.

As a manuscript

LEGAL REGULATION OF FORMATION

AND DEVELOPMENT OF SELF-REGULATORY ORGANIZATIONS

Specialty 12.00.03 - civil law; business law;

The dissertation materials can be used in the educational process in the preparation of educational and methodological support for the disciplines "Commercial Law", "Russian Business Law", "Corporate Law", "Civil Law".

Approbation of work. The main provisions and results of the study were reported and discussed at scientific and practical conferences held in the Russian Federation and Ukraine.

Research structure. The dissertation research consists of an introduction, three chapters that combine eight paragraphs, a conclusion and a list of sources used.

Basic provisions for defense.

1. Self-regulation, as an integral element of social relations, is an institution of civil society and, based on independence and initiative, allows subjects of law to exercise the authority to regulate and control a certain area of ​​socio-economic relations. Self-regulation is of particular relevance in the context of the long-term tasks facing Russia: the development of civil society and the modernization of government institutions - the abolition of unnecessary functions and powers. Self-regulation is capable of taking over many of the traditional government powers.

3. Joining a self-regulatory organization, with rare exceptions, should not be mandatory. Otherwise, participation in self-regulatory organizations turns into a compulsory act. In fact, in certain sectors of the economy of the Russian Federation, membership in self-regulatory organizations is an admission to the profession (for example, in relation to arbitration managers, auditors), leaving no other options for existence independent of a self-regulatory organization, which is unacceptable, from our point of view. In this situation, there must be alternative options, possibly more complex, so that the subjects of professional activity have the right to choose.

4. The dissertation identified two conceptual approaches to the issue of the relationship between state regulation and self-regulation: 1) self-regulation is understood as a continuation of state regulation; 2) self-regulation is opposed to state regulation. Within the framework of the Federal Law of 01.01.2001 "On Self-Regulatory Organizations" (the Law on SROs), a third, compromise approach was reflected. The state allows the united subjects of entrepreneurial or professional activity to develop ethical and corporate norms and monitor their implementation, but at the same time without giving them the right to replace the state in legal aspect. There is also no opposition to state regulation, for example, self-regulatory organizations are not entitled to bring their members to administrative responsibility.

5. In the course of his research, the author found that self-regulatory organizations are not completely identical in their status. The grounds for the creation of self-regulatory organizations, their legal status, functions, rights and obligations, the principles of membership in organizations of this type are different. The references contained in the Law on SROs to other federal laws on key issues (for example, on membership in a self-regulatory organization as a condition for the implementation of certain economic activities) do not define a general approach for their solution in the legislation.

6. Foreign experience in the formation of self-regulation shows that it arose from the need of product manufacturers (work performers) to independently regulate relationships with consumers. The idea of ​​self-regulation arose not at the initiative of the state and was not carried out in an administrative manner. In many foreign countries ah, the ideas of self-regulation are a legal tradition, which cannot be said about the Russian Federation. In our case, self-regulatory organizations, in fact, were created based on foreign experience, and were not the result of a long historical development.

MAIN CONTENT OF THE WORK

In administered presented general characteristics work, the relevance of the topic is substantiated, the goal, objectives, subject, object of research are determined, its methodological base, scientific novelty are disclosed, a list of the main provisions submitted for defense is provided, and information is given on the approbation of the research results.

AT first chapter considers public self-regulation as an institution of civil society and the rule of law.

AT first paragraph the institute of self-regulation is considered as an integral element in the rule of law.

At present, the relationship between the state and civil society in developed countries tends to expand the self-organizing principles of civil society.

However, as the Constitutional Court of the Russian Federation emphasized, the emergence of self-regulatory organizations does not mean that the state renounces its constitutional authority to establish the legal foundations of a single market in cases where representatives of a particular profession are vested with public law functions, and self-regulatory organizations formed by them - the right to develop and establish rules of professional activity binding on its members.

Self-regulation can be understood as the creation of organizations to protect the rights of an unlimited number of persons, that is, public law organizations with functions characteristic of public authorities. They are needed as a counterbalance to a certain slowness inherent in the state apparatus.

Self-regulatory organizations play the role of a kind of intermediary between public authorities and civil society institutions.

Self-regulation can be viewed in a broad sense - as a legal category. In the institutional sense, self-regulation is manifested in the activities of self-regulatory organizations.

Self-regulation can be considered in various qualities: both as a direct activity, and as an independent institution of law, and as a principle of legal regulation of certain spheres of public life.

In addition, self-regulation can also be viewed as a kind of process that unfolds over time, within which participants transfer part of their rights to an organization, standards and rules are developed and established, their implementation is ensured, the activities of such an organization are directly regulated, and compliance with these standards is monitored and rules.

Second paragraph devoted to the problem of differentiation of forms of self-regulatory organizations.

Forms of self-regulation can be different, they largely depend on the professional interests of the participants in self-regulation.

Industry - quasi-regulation;

The idea of ​​self-regulation in a particular professional field of activity has a long historical tradition.

However, in Russia this tradition was revived only in the 90s of the last century, when self-regulatory organizations were provided for professional participants in the securities market. Therefore, if for a number of foreign countries self-regulation is, in fact, a legal tradition, then the same cannot be said about the Russian Federation.

In fact, we have entered the second stage modern development self-regulating organizations, which was marked by the adoption of the Law on SROs.

Second chapter devoted to the legal problem of the organization and functioning of the institution of self-regulation.

AT first paragraph analyzes foreign experience in the development of self-regulatory organizations.

World experience in the formation of self-regulation shows that it arose from the need of product manufacturers (work performers) to independently regulate relationships with consumers. The idea of ​​self-regulation did not arise on the initiative of the state and was not carried out administratively against the will of one or another professional community. Self-regulation in these countries is due, first of all, to the need for this by the entrepreneurs themselves and, more importantly, it meant their awareness of their readiness for their business qualities, in the conditions of public confidence in business, without excessive state interference to regulate their activities independently.

As a rule, it is the state that authorizes the activities of self-regulatory organizations. However, there are examples of the emergence and functioning of self-regulation without any involvement of the state.

In developed foreign legal systems, non-state regulation is a presumption. It is presumed that only that part of the regulation that the professional community cannot carry out independently is transferred to the state. In Western countries, as experience shows, business first appeared, and then its regulation appeared.

From the analysis of European legislation, it follows that in the field of corporate relations, self-regulation is not always effective. Therefore, at present, European legislators are actively working to find a more effective combination of public and private regulation, developing a regulatory strategy - co-regulation, while the goals set by the legislative authorities will be achieved by private companies.

In second The paragraph deals with the institutionalization of self-regulatory organizations in Russia.

Institutionalization is the development, definition and consolidation of certain norms, rules, statuses and roles, bringing them into a system that can satisfy social needs.

As the Constitutional Court of the Russian Federation emphasized, the formation of relevant self-regulatory organizations refers to market methods regulation of the economy.

The term "self-regulatory organization" (self-regulatory organization) was borrowed from Anglo-American law.

It should be said that the process of institutionalization of self-regulatory organizations is based on the observance of certain conditions.

First of all, the formation of self-regulatory organizations is carried out according to the principle of unity of the industry of production of goods (works, services) or the market for manufactured goods (works, services) or unites subjects of professional activity of a certain type.

It is noteworthy that at present the areas of entrepreneurship are developing unevenly, many are in their infancy, so it takes time for them to form and decide on the fundamental processes of their activities. Therefore, only at a certain stage is it possible to fully implement self-regulation.

AT third The paragraph deals with supervision and control in relations with the participation of self-regulatory organizations, as well as legal liability for violations of the law on self-regulatory organizations.

By regulating in sufficient detail the procedural issues of disciplinary proceedings, the SRO Law determined that the self-regulatory organization, within two working days from the date of the adoption by the body for consideration of cases on the application of disciplinary measures against members of the self-regulatory organization of the decision on the application of disciplinary measures against a member of the self-regulatory organization, sends copies of such a decision to a member of the self-regulatory organization, as well as to the person who filed the complaint on which such a decision was made.

From our point of view, the established two-day period should be considered unjustified, since, of course, to prepare a high-quality motivated decision, given that there may be several such decisions, and in most cases their execution is carried out by one member of the disciplinary committee, who is an authorized employee of a self-regulatory organization, practically impossible. In this regard, this requirement of the law has complicated the disciplinary procedures of self-regulatory organizations and reduced their quality.

Attention should be paid to the procedure for crediting funds received by a self-regulatory organization as a result of imposing a fine on a member of a self-regulatory organization to the compensation fund of a self-regulatory organization. According to Article 13 of the SRO Law, “the compensation fund is initially formed exclusively in cash from the contributions of members of the self-regulatory organization”, while a fixed amount is established for each member.

From our point of view, it seems not entirely illogical and inappropriate to combine different sources of obtaining Money into one article, thereby violating the principle of transparency and reliability of accounting information.

Having entrusted self-regulatory organizations with the functions of control, the federal executive authorities perform the state functions assigned to them, limiting themselves to supervision over this activity.

In general, the development of self-regulation should be recognized as an important component of the administrative reform aimed at optimizing state intervention in the economic activities of economic entities.

Third the chapter is devoted to the analysis of self-regulatory organizations as a subject of civil law.

AT first The paragraph discusses the conceptual foundations of the legal status of self-regulatory organizations.

Of course, self-regulatory organizations have a dual legal nature: on the one hand, they are non-profit organizations, and they are registered in the manner prescribed by Article 13.1 of the Federal Law of 01.01.2001 "On Non-Profit Organizations", on the other hand, from the moment (date) of inclusion in the state register of self-regulatory organizations they acquire a special public law status.

This circumstance has repeatedly been the subject of discussion by various authors, a number of whom even believe that the term "self-regulatory organization" characterizes not the civil law, but the public law status of a legal entity, which it acquires from the moment information about it is included in a special state register. .

Existing self-regulatory organizations have differences in the ways of acquiring, terminating their status, legal status, activities, especially the procedure for admitting an organization to membership and terminating such membership, exercising control over the activities of their members and applying disciplinary measures against their members.

At present, Russian legislation contains a significant number of acts regulating the formation of the institution of self-regulation in certain industries. The initial premise was the assumption that the provisions of special (industry) laws can determine certain features of self-regulatory organizations in certain industries, take into account their specifics, however, existing experience regulation shows that the norms of special laws are often so specific that they come into direct conflict with the norms of the basic law.

In second The paragraph deals with the issue of acquiring the legal status of a self-regulatory organization.

The special properties of self-regulatory organizations that distinguish them from other organizations, including non-profit ones, arise from the moment of acquiring the status of a self-regulatory organization, which is not associated with state registration of this organization. It should be noted that there is no unified approach in the legislation on the issue of acquiring the status of self-regulatory organizations.

From our point of view, such a variety in the ways of obtaining status is hardly justified, given that all self-regulatory organizations are called upon to perform similar functions.

In addition, it is hardly reasonable to exclude such, for example, business areas as the securities market, the activities of investment funds, and credit organizations from the scope of the Law on SROs.

It should be said that the question of the number of members of self-regulatory organizations causes a lot of controversy.

If approached from the standpoint of the federal executive body that maintains the register of self-regulatory organizations, then it certainly benefits from a higher quantitative threshold for creating a self-regulatory organization, since this reduces the total number of self-regulatory organizations and facilitates supervision over them.

In accordance with Article 13 of the SRO Law, a self-regulatory organization has the right to apply the following methods of ensuring property liability:

1) creation of a system of personal and (or) collective insurance;

2) formation of a compensation fund.

In our opinion, it is necessary to link the reduction in the amount of contribution to the compensation fund of a self-regulatory organization with the amount of the sum insured under the liability insurance agreement of members of such an organization and the amount of insurance coverage.

It is advisable to establish in the SRO Law that the regulated organization itself bears full property liability at the expense of the compensation fund.

The funds of the compensation fund are strictly targeted and cannot be used by the self-regulatory organization, except for payments for damage caused by its members to third parties. Therefore, an organization that voluntarily terminates its membership in a self-regulatory organization has every right to receive its funds back.

The implementation of this position will require an amendment to the legislation of the Russian Federation in terms of establishing the right of a former member of a self-regulatory organization to receive contributions to the compensation fund in the event of voluntary termination of his membership in such an organization.

AT third The paragraph deals with the issues of improving the legal regulation of the creation and activities of self-regulatory organizations in the modern state.

The economic principles and foundations for the successful operation of non-profit organizations are different, and to such an extent that proposals are made to use special terms to designate organizations of certain groups of special terms that directly indicate their essence and purpose in order to distinguish them from other non-profit constructions.

The establishment of non-profit organizations with a special legal status will make it possible to more effectively identify the advantages and disadvantages of the current legislation in relation to the issue of their economic significance, social entity and principles for the implementation of their goals in modern conditions.

In connection with the approval of the Concept for the Development of the Civil Legislation of the Russian Federation, the question arises of the need to improve the system for building and organizing the activities of many legal entities, including those related to non-profit organizations.

The status of legal entities is currently determined not only general provisions Civil Code of the Russian Federation, but also many separate federal laws, often contradicting both each other and the Civil Code of the Russian Federation.

The trends in the further development of the legislation of the Russian Federation are reflected in the idea of ​​introducing the institution of self-regulatory organizations into the most diverse spheres of society.

Prospects for the development of self-regulatory organizations largely depend on the ability of economic entities to take advantage of the benefits provided by the current legislation in the field of self-regulation. At the same time, it is necessary to take into account the fact that economic entities have different forms of ownership (state, municipal, private), and therefore they have different opportunities for joining self-regulatory organizations.

In the regions, a problematic issue in the organization of self-regulatory organizations is the number of participants, since often there is not a sufficient number of business entities involved in a particular area of ​​activity. In this case, the creation of an independent self-regulatory organization may be difficult or practically impossible. The solution to the issue may be the entry of business entities into associations of interregional or federal significance or entry into self-regulatory organizations created in larger neighboring regions. But in this case, the problem of the territorial remoteness of the administrative center of self-regulatory organizations arises, which entails additional time and financial costs, reduces the efficiency of two-way communication between the self-regulatory organization and its member, and reduces the degree of control of the self-regulatory organization of its members. This situation does not meet the goals for which the institution of self-regulation is being created.

AT imprisonment the results of the dissertation research are summed up, the main conclusions of theoretical and practical significance are stated, proposals are made to improve the legislation regulating self-regulation issues.

MAIN PUBLICATIONS ON THE TOPIC OF THE DISSERT RESEARCH

1. Kepov prerequisites and stages of formation of the legal foundations of self-regulation / // Law and education. -2011. – no. p. l.

2., On the responsibility of self-regulatory organizations for the obligations of their members / // scientific and analytical journal "Bulletin" of St. Petersburg University of the Fire Service of the Ministry of Emergency Situations of Russia. No. 3 - 20p. l.

3. , Tkachev foreign experience development of self-regulatory organizations / // Scientific and analytical journal "Bulletin" of St. Petersburg University of the Fire Service of the Ministry of Emergency Situations of Russia. No. 3 - 2011-1.0 p.

in other editions:

1., Self-regulation as a way of organizing civil society // Security service in Russia: experience, problems, prospects. Sat. Proceedings of scientific-practical. conf. St. Petersburg State Fire Service EMERCOM of Russia. St. Petersburg, 2010. (0.5 p. sheet).

2., Problems of responsibility of self-regulatory organizations//Security service in Russia: experience, problems, prospects. Materials of scientific-practical. conf. St. Petersburg State Fire Service EMERCOM of Russia. St. Petersburg, 2009. (0.7 p. sheet).

3., On the legal status of self-regulatory organizations /, V. A. // scientific and analytical journal “Law. Safety of emergency situations. No. 2 - 2011. -0.7 p. l.

4. , Kepov and control of activities of self-regulatory organizations /, // Scientific and practical journal "Fundamental research of the corporate sector of the economy". No. 2. - 2011. - 0.7 p. l.

5. Kepov development of self-regulatory organizations /
// Corporate lawyer. No. 8.–2011– 0.7 p. l.

6. Kepov self-regulation of public relations / // Scientific and theoretical journal "Bulletin of the Lugansk State University of the Ministry of Internal Affairs of Ukraine". No. 8 -2011 - 0.6 p. l. (special issue).

7. Keepers of the legal status of disciplinary committees of self-regulatory organizations / Technical means counteraction to terrorist and criminal explosions. Sat. Proceedings of scientific-practical. conf. St. Petersburg State Fire Service EMERCOM of Russia. St. Petersburg, 2010. (0.5 p. sheet).

Democracy and the quality of the state. Newspaper "Kommersant" dated 06.12.2012

Problems of responsibility of self-regulatory organizations // Security service in Russia: experience, problems, prospects. Materials of scientific-practical. conf. St. Petersburg State Fire Service EMERCOM of Russia. SPb., 2009.

Forms of self-regulation of public relations // Development of the state and law in modern conditions: experience, realities, prospects. Materials of scientific-practical conf. Lugansk State University Ministry of Internal Affairs of Ukraine, No. 8 -2011.

Determination of the Constitutional Court of the Russian Federation of 01.01.2001 No. 000-0-0//Bulletin of the Constitutional Court of the Russian Federation. 2010. No. 6.

Totyeva the status of self-regulatory audit associations // Taxes. 2006. No. 1. S. 94.

Relevance of the topic. Self-regulation of professional and entrepreneurial activities is the most effective mechanism for the market, borrowed from foreign practice. The introduction of this method is associated with the partial abolition of licensing and the transition to a qualitatively new stage in the system of interaction between the state and society.

Self-regulatory organizations (hereinafter referred to as SROs) arise in various industrial and manufacturing sectors as a result of the growth of self-awareness among participants in business relations. This makes it possible to exclude the influence of supervisory authorities from those areas of control where their presence seems unnecessary.

The purpose of creating SROs is to de-bureaucratize the Russian economy and form new civil law institutions aimed at strengthening the practice responsible management economic activity.

In many countries of the world, self-regulatory structures and related private organizations have developed naturally in the course of historical development and today are successfully used as an alternative to public administration. In Russia, the process of creating SROs has not yet been completed, therefore, along with self-regulation, other terminological concepts are also used, such as private regulation and self-licensing.

Objective. The study of the legal foundations of the activities of self-regulatory organizations.

Tasks:

Reveal the essence of the concept of "self-regulatory organization";

Consider the procedure for acquiring the status of a self-regulatory organization;

Define the functions, rights and responsibilities of self-regulatory organizations;

Consider the governing bodies of self-regulatory organizations.

Object of study - self-regulating organizations.

Subject of study - legal basis for the activities of self-regulatory organizations, their legal status.

Normative base. In the course of the work done, federal laws regulating the activities of self-regulatory organizations in the Russian Federation were considered:

Other normative-legal acts concerning the regulation of the activities of various types of non-profit organizations.

1 BASIS OF ORGANIZATIONAL AND LEGAL STATUS OF SELF-REGULATORY ORGANIZATIONS

1.1 The concept and essence of self-regulatory organizations

The main legal act regulating the activities of self-regulatory organizations of all types is the Federal Law of December 1, 2007 N 315-FZ "On Self-Regulatory Organizations". This Law defines the basic provisions of self-regulation, fixes the principles for the formation of self-regulation, as well as its legal and financial foundations.

This law was introduced for several reasons:

First, the need to strengthen the responsibility of entrepreneurs to consumers of their goods and services, to raise business ethics standards.

Secondly, self-regulation, as conceived by the legislator, should lead to a reduction in budget costs associated with state regulation and control of the activities of entrepreneurs.

Thirdly, the creation of self-regulatory organizations will allow business participants to more effectively protect their interests in the event of conflicts with officials and reduce the “corruption burden” on business.

Fourth, SRO is an additional alternative mechanism for resolving disputes between entrepreneurs and consumers. Finally, fifthly, the adoption of a federal law regulating the work of self-regulatory organizations streamlines and details the legislation, and also creates a legal basis for the implementation of state economic policy in the direction of protecting the interests of entrepreneurs.

According to Part 1 of Article 3 of the Federal Law, self-regulatory organizations (hereinafter referred to as SROs) are non-profit organizations created for the purpose of self-regulation, based on membership, uniting business entities based on the unity of the industry of production of goods (works, services) or the market for manufactured goods (works, services) ) or uniting subjects of professional activity of a certain type .

In accordance with Federal Law No. 315-FZ, the purpose of SRO activity is self-regulation - an independent and initiative activity that is carried out by subjects of entrepreneurial or professional activity and the content of which is the development and establishment of standards and rules for this activity, as well as monitoring compliance with the requirements of these standards and rules . The subject of self-regulation is the entrepreneurial or professional activity of entities united in self-regulatory organizations. A self-regulatory organization develops and approves standards and rules for entrepreneurial or professional activities, which are understood as requirements for the implementation of entrepreneurial or professional activities that are mandatory for all members of a self-regulatory organization. Federal laws may establish the specifics of the development and establishment of standards and rules of self-regulatory organizations for certain types of entrepreneurial or professional activities that apply to business entities.

Subjects of entrepreneurial activity, according to the Federal Law "On Self-Regulatory Organizations", are understood as individual entrepreneurs and legal entities duly registered in the territory of the Russian Federation and carrying out entrepreneurial activities determined in accordance with the Civil Code of the Russian Federation, and subjects of professional activity - individuals engaged in professional activities regulated in accordance with federal laws (part 3 of article 2 of Federal Law No. 315-FZ).

In conclusion, I would like to note that in the Federal legislation much attention is paid to the concept of self-regulatory organizations, as well as the essence of the self-regulation process. This is explained by the fact that self-regulation is a new, poorly studied phenomenon in modern law enforcement practice. Based on this, the legislative bodies were faced with the task of preventing the occurrence of legal errors and violations caused by a lack of understanding of the essence of the self-regulation process.

1.2 The procedure for acquiring the status of a self-regulatory organization

I would like to note that the SRO is not an independent organizational and legal form of a legal entity. SRO is a status acquired by a non-profit organization upon fulfillment of the requirements stipulated by the current legislation of the Russian Federation.

In accordance with paragraph 2 of Art. 51 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), a legal entity is considered established from the date of making the corresponding entry in the unified state register of legal entities. That is, a legal entity arises through the creation, "birth" of a new subject of civil circulation. With regard to SROs, the legislator does not use such provisions. In accordance with Art. 22 of the Federal Law of July 29, 1998 No. 135-FZ “On Appraisal Activities in the Russian Federation” “the status of a self-regulatory organization of appraisers is acquired by a non-profit organization in accordance with the provisions of this article from the date of its inclusion in the unified state register of self-regulatory organizations of appraisers.” Federal Law No. 315-FZ contains a provision according to which, " non-profit organization acquires the status of a self-regulatory organization from the date of entering information about a non-profit organization in the state register of self-regulatory organizations”. That is, the emergence of an SRO is not the creation, but the acquisition by a non-profit organization of the status of an SRO.

That is, on the one hand, SROs are non-profit organizations, and they are subject to the requirement of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations” on mandatory state registration, and on the other hand, they have a special public law status, acquired subject to a number of conditions stipulated by law.

In accordance with Part 1 of Art. 3 of Federal Law No. 315-FZ, in order to acquire the status of an SRO, a legal entity must:

1. be established in the form of a non-profit organization;

2. the purpose of creation is self-regulation;

3. such legal entity must be based on the membership of its participants;

4. A legal entity must unite business entities on the basis of the unity of the industry of production of goods (works, services) or the market for industrial goods (works, services) or unite subjects of professional activity of a certain type.

In addition to the requirements of the law above, for a non-profit organization to become an SRO, the following conditions must also be met:

1) association within a non-profit organization as members of at least twenty-five subjects of entrepreneurial activity or at least one hundred subjects of professional activity of a certain type, unless otherwise established by federal laws in relation to self-regulatory organizations uniting business or professional entities;

2) the existence of standards and rules for entrepreneurial or professional activities that are mandatory for all members of the non-profit organization;

3) ensuring additional property liability of each SRO member to consumers of goods (works, services) produced and other persons by establishing an insurance requirement for members of a self-regulatory organization specified in paragraph 1 of part 1 of Article 13 of this Federal Law, and by forming a compensation fund of a self-regulatory organization .

4) in order to carry out activities as a self-regulatory organization, a non-profit organization must create specialized bodies that exercise control over compliance with the requirements of the standards and rules of entrepreneurial or professional activity by members of the self-regulatory organization and consider cases on the application of disciplinary measures against members of the self-regulatory organization provided for internal documents self-regulating organization.

5) entering information about a non-profit partnership in the state register of self-regulatory organizations.

Moreover, federal laws may establish other requirements for non-profit organizations uniting business or professional entities to be recognized as self-regulatory organizations, and higher requirements may also be established in comparison with the requirements for self-regulatory organizations specified in this Federal Law. In accordance with Part 3 of Art. 22 of the Federal Law of July 29, 1998 No. 135-FZ “On Appraisal Activities in the Russian Federation”, the SRO of appraisers must unite at least 300 appraisers.

In accordance with the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, an SRO of arbitration managers must unite at least 100 arbitration managers (it should be noted that we are talking about business entities, since the arbitration the manager, in accordance with paragraph 1 of article 20 of the said Law, must be registered as an individual entrepreneur).

SRO builders (Urban Planning Code of the Russian Federation, Article 55.4) must unite as part of a non-profit organization as its members at least one hundred individual entrepreneurs and (or) legal entities.

So, from the moment an entry is made in the unified state register of SROs, a new legal entity of a special organizational and legal form does not arise. That is, any non-profit organization from the moment of making an entry in such a register only acquires a special status.

1.3 Functions, rights and responsibilities of self-regulatory organizations

1.3.1 Functions of self-regulatory organizations

In accordance with Article 6 of the Federal Law of December 1, 2007 N 315-FZ "On Self-Regulatory Organizations", the SRO performs the following main functions:

1) develops and establishes requirements for membership of subjects of entrepreneurial or professional activity in a self-regulatory organization, including requirements for joining a self-regulatory organization;

2) apply disciplinary measures provided for by this Federal Law and internal documents of the self-regulatory organization in relation to its members;

3) form arbitration courts to resolve disputes arising between members of the self-regulatory organization, as well as between them and consumers of goods (works, services) produced by members of the self-regulatory organization, other persons, in accordance with the legislation on arbitration courts;

4) analyzes the activities of its members on the basis of information provided by them to the self-regulatory organization in the form of reports in the manner prescribed by the charter of the self-regulatory organization or other document approved by the decision of the general meeting of members of the self-regulatory organization;

5) represents the interests of members of a self-regulatory organization in their relations with state authorities of the Russian Federation, state authorities of the subjects of the Russian Federation, bodies local government;

6) organizes vocational training, certification of employees of members of a self-regulatory organization or certification of goods (works, services) produced by members of a self-regulatory organization, unless otherwise established by federal laws;

7) ensure the transparency of the activity of its members, publish information about this activity in accordance with the procedure established by this Federal Law and internal documents of the self-regulatory organization.

The law also states that the self-regulatory organization, along with the above functions, has the right to perform other functions provided for by the charter of the self-regulatory organization and not contradicting the legislation of the Russian Federation.

1.3.2 Rights of self-regulatory organizations

In accordance with the main functions established by this article, in the process of carrying out its activities, a self-regulatory organization has the right to:

1) exercise control over the entrepreneurial or professional activities of its members in terms of their compliance with the requirements of the standards and rules of the self-regulatory organization;

2) challenge on its own behalf, in accordance with the procedure established by the legislation of the Russian Federation, any acts, decisions and (or) actions (inaction) of state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation and local governments that violate the rights and legitimate interests of a self-regulatory organization, its a member or members, or posing a threat of such a violation;

3) participate in the discussion of draft federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, government programs on issues related to the subject of self-regulation, as well as to send to the state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation and local governments conclusions on the results of its independent examinations of draft regulatory legal acts;

4) to submit proposals for the consideration of state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation and local governments on the formation and implementation of state policy and the policy pursued by local governments in relation to the subject of self-regulation;

5) request information from the state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation and local self-government bodies and receive from these bodies the information necessary for the self-regulatory organization to perform the functions assigned to it by federal laws, in the manner prescribed by federal laws.

4. A self-regulatory organization, along with the rights specified in Part 3 of this Article, has other rights provided for by this Federal Law and other federal laws, taking into account the specifics established for entrepreneurial or professional activities of a certain type.

1.3.3 Responsibility of self-regulatory organizations

The responsibility of self-regulatory organizations is expressed through the implementation of the responsibility of the participants in a non-profit organization.

With the acquisition of the status of an SRO, the mechanism of liability of participants in a non-profit organization does not change.

Consequently, the responsibility of members of the SRO should be implemented according to the rules of responsibility provided for by the current legislation in relation to non-profit organizations.

The current legislation of the Russian Federation provides for a variety of organizational and legal forms of non-profit organizations, but for the most part they have one thing in common - a non-profit organization is not liable for the obligations of its participants (members) (Chapter 2 of the Federal Law of January 12, 1996 No. 7-FZ "On non-profit organizations).

For example, a non-profit partnership is not liable for the obligations of its members (Part 1, Article 7 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations”). In accordance with Art. 313 of the Civil Code of the Russian Federation, the fulfillment of an obligation may be assigned by the debtor to a third party, unless the obligation of the debtor to fulfill the obligation personally follows from the law, other legal acts, the terms of the obligation or its essence. responsibility for such harm independently, since the law does not provide for the possibility of a non-profit partnership to be liable for the obligations of its members.

In accordance with paragraph 1 of Art. 56 of the Civil Code of the Russian Federation and paragraph 3 of Art. 23 of the Civil Code of the Russian Federation, whether it is a legal entity or an individual entrepreneur - members of the SRO are liable for obligations with all their property.

But let us recall that the SRO has a special status of a non-profit organization. And if a member of the SRO were responsible solely with his property for all his obligations, then there would be no point in the very creation of the SRO at all. Therefore, one of the goals of creating an SRO, as well as becoming a member of an SRO, is to reduce the risk of a decrease in the property sphere of an SRO member in the event of its property liability to consumers for the goods it produces.

In order to ensure additional property liability of its members to consumers of goods (works, services) produced by them and other persons, SROs create systems of personal and (or) collective insurance, and also form a compensation fund. Thus, an SRO member is responsible to consumers of the goods (works, services) produced by him and other persons not only with his property, the responsibility of an SRO member is ensured by the insurance system and payments from the compensation fund formed by all members. It should be noted that the amount of payments from the compensation fund is determined by the general meeting of SRO members.

Federal Law No. 315-FZ establishes only one mandatory requirement for liability insurance of SRO members to consumers of goods (works, services) - minimum size the sum insured under the liability insurance agreement of SRO members (thirty thousand rubles per year). In accordance with paragraph 1 of Art. 947 of the Civil Code of the Russian Federation, the sum insured is the amount within which the insurer undertakes to pay insurance compensation under a property insurance contract or which he undertakes to pay under a personal insurance contract.

Thus, the consolidation in the Federal Law of December 1, 2007 N 315-FZ "On Self-Regulatory Organizations" of the functions, rights of the SRO and the responsibility of its members is designed to protect the basic interests of citizens when using the services provided by SRO representatives.

1.4 Governing bodies of self-regulatory organizations

In accordance with Article 5 of the Federal Law "On Self-Regulatory Organizations", the governing bodies of a self-regulatory organization are:

General meeting of members of a self-regulatory organization;

A permanent collegial governing body of a self-regulatory organization;

Executive body of a self-regulatory organization.

Let's consider them in more detail.

General meeting of members of a self-regulatory organization.

The General Meeting of Members of a Self-Regulatory Organization is the supreme governing body of the Self-Regulatory Organization, authorized to consider the issues related to its competence in the activities of the Self-Regulatory Organization.

The general meeting of members of a self-regulatory organization is convened at intervals and in the manner established by the charter of the self-regulatory organization.

The exclusive competence of the general meeting of members of a self-regulatory organization includes the following issues:

Approval of the charter of a non-profit organization, making changes to it;

Election of members of a permanent collegiate management body of a self-regulatory organization, early termination of the powers of the said body or early termination of the powers of its individual members;

Appointment to a position of a person exercising the functions of the sole executive body of a self-regulatory organization, early dismissal of such a person from office;

Approval of disciplinary measures, the procedure and grounds for their application, the procedure for considering cases of violation by members of the self-regulatory organization of the requirements of the standards and rules of the self-regulatory organization;

Determination of priority areas of activity of the self-regulatory organization, the principles of formation and use of its property;

Approval of the report of the permanent collegiate management body of the self-regulatory organization and the executive body of the self-regulatory organization;

Approval of the estimate of the self-regulatory organization, making changes to it, approval of the annual financial statements of the self-regulatory organization;

Deciding on the voluntary exclusion of information about the self-regulatory organization from the state register of self-regulatory organizations;

Making a decision on the reorganization or liquidation of a non-profit organization, appointing a liquidator or a liquidation commission;

2. A permanent collegiate governing body of a self-regulatory organization.

A permanent collegial management body of a self-regulatory organization is formed from among individuals - members of the self-regulatory organization and (or) representatives of legal entities - members of the self-regulatory organization, as well as independent members (persons who are not affiliated with labor relations with a self-regulatory organization and its members).

Each member of the permanent collegiate governing body of the self-regulatory organization shall have one vote during voting.

A self-regulatory organization independently determines the quantitative composition of a permanent collegial governing body, the procedure and conditions for its formation, activities, and decision-making.

The competence of the permanent collegiate governing body of a self-regulatory organization includes the following issues:

Approval of the standards and rules of the self-regulatory organization, making changes to them;

Creation of specialized bodies of the self-regulatory organization, approval of regulations on them and rules for their activities;

Presentation to the general meeting of members of the self-regulatory organization of a candidate or candidates for appointment to the position of the executive body of the self-regulatory organization;

Adoption of a decision on joining a self-regulatory organization or on exclusion from a self-regulatory organization on the grounds provided for by the charter of a self-regulatory organization.

3. Executive body of the self-regulatory organization.

The competence of the executive body of the self-regulatory organization includes any issues of economic and other activities of the self-regulatory organization that do not fall within the competence of the general meeting of members of the self-regulatory organization and its permanent collegial management body.

4. Specialized bodies of the self-regulatory organization

The specialized bodies of the self-regulatory organization, which are necessarily created by the permanent collegial management body of the self-regulatory organization, include:

The body exercising control over compliance by the members of the self-regulatory organization with the requirements of the standards and rules of the self-regulatory organization;

The body for the consideration of cases on the application of disciplinary measures against members of a self-regulatory organization.

In addition to the specialized bodies of the self-regulatory organization listed in the Federal Law, the decisions of the permanent collegiate governing body of the self-regulatory organization may provide for the creation on a temporary or permanent basis of other specialized bodies acting on the basis of the relevant regulation approved by the permanent collegiate governing body of the self-regulatory organization.

The specialized bodies of the self-regulatory organization perform their functions independently.

Thus, the system of governing bodies of self-regulatory organizations is legally defined. Each of the non-profit organizations that have received the status of an SRO must restructure its structure in accordance with the requirements of federal law. It is assumed that this structure of management bodies will allow the most efficient organization of the performance of SRO functions, and protect, on the one hand, the interests of SRO members, and, on the other hand, the interests of legal entities and individuals using their services.

In conclusion of the chapter, I would like to note that the main concept of introducing the institution of self-regulation in the Russian Federation is the transfer by the state to self-regulatory organizations of controlling functions over the implementation by industry entities of special legal requirements governing this type of activity. The basis for the transfer of control functions by the state to self-regulatory organizations is the presence of a public component in the activities of the subjects of this type of activity.

2 LEGAL FRAMEWORK FOR THE ACTIVITIES OF DIFFERENT TYPES OF SELF-REGULATORY ORGANIZATIONS

2.1 Types of self-regulatory organizations in the Russian Federation

The type of self-regulatory organization depends on the types of activities of the entities participating in these organizations. So, they can be created by subjects of either professional or entrepreneurial activity. There are also mixed types of self-regulatory organizations, that is, under certain conditions, joint membership of both professional and business entities is possible.

Self-regulation is carried out on the terms of the entry of entities into specialized organizations - non-state non-profit partnerships that unite business entities on a voluntary basis on the basis of the unity of the industry, the market for manufactured goods (works, services) or one type of activity.

There are the following types of SROs:

Self-regulatory organizations of arbitration managers (SROs of arbitration managers);

Self-regulatory organizations of appraisers (SRO appraisers);

Self-regulatory organizations of builders (SRO of builders, SRO in construction, SRO);

Self-regulating organizations of prospectors (SRO of prospectors, SRO in surveys, SROI);

Self-regulatory organizations of designers (SRO of designers, SRO in design, SROP);

Self-Regulatory Organizations of Auditors (SROs of Auditors);

Self-regulatory organizations of professional participants in the securities market (SROs of professional participants in the securities market);

Self-regulatory organizations of management companies (SROs of management companies);

Self-regulatory organizations of carriers (SRO of carriers, SRO of road carriers);

Self-regulatory organizations of actuaries (SROs of actuaries, SROs in insurance, SROs in insurance market);

Self-regulatory organizations in the field of energy audit (SRO in the energy sector, SRO in the field of energy audit, SROE);

Self-regulatory organization of collectors (SRO collectors, TERM);
Self-regulatory organizations in the field of medicine (SROs in medicine, SROs of doctors, SROs of medical specialists, SROs).

Consider the most common of them.

2.2 Self-regulatory organizations of builders

Self-regulatory organization of builders (SRO) - a type of non-profit organization based on the membership of individual entrepreneurs and legal entities that carry out construction, reconstruction, overhaul of facilities capital construction.

Self-regulation in the field of construction, reconstruction, overhaul capital construction facilities (construction activities) is regulated by the following regulatory legal acts:

Self-regulation in construction was introduced in the Russian Federation on January 1, 2009 in place of building licenses (licenses for activities in the field of construction of buildings and structures of I and II levels of responsibility).

The main goals of self-regulatory organizations of builders are:

1. Prevention of causing harm to the life or health of individuals, property of individuals or legal entities, state or municipal property, environment, life or health of animals and plants, objects cultural heritage(monuments of history and culture) of the peoples of the Russian Federation (hereinafter - harm) due to shortcomings in the work that affect the safety of capital construction projects and are carried out by members of self-regulatory organizations;

2 Improving the quality of construction, reconstruction, overhaul of capital construction projects.

3. Informing professional participants in construction activities.

Self-regulatory organizations in construction are created:

on a regional basis;

on an interregional basis;

on an industry basis.

Membership in a construction self-regulatory organization (SRO) is a mandatory requirement for construction organizations and individual entrepreneurs engaged in construction activities allowing to carry out construction activities.

Members of a construction self-regulatory organization (construction SRO) in order to carry out construction activities must obtain a certificate of admission to work in the field of construction, reconstruction, overhaul of capital construction objects (permission to construction work).

State control over the activities of SROs in the field of construction and maintenance of the state register of self-regulatory organizations is carried out by the Federal Service for Environmental, Technological and Nuclear Supervision (Rostekhnadzor).

2.3 Self-regulatory organizations of professional participants in the securities market

A self-regulatory organization (SRO) of professional participants in the securities market is a voluntary association of professional participants in the securities market, acting in accordance with the Federal Law "On the Securities Market" on the principles of a non-profit organization, to ensure the conditions for the professional activities of participants in the securities market, compliance with standards professional ethics in the securities market, protecting the interests of securities holders and other clients of professional participants in the securities market who are members of a self-regulatory organization, establishing rules and standards for conducting transactions with securities that ensure efficient operation in the securities market.

Self-regulatory organizations (SROs) of professional participants in the securities market are regulated by the following legal acts:

3. Federal Law No. 46-FZ of March 5, 1999 “On the Protection of the Rights and Legitimate Interests of Investors in the Securities Market”.

5. Decree of the Government of the Russian Federation of June 30, 2004 No. 317 “On approval of the Regulations on the Federal Service for financial markets».

6. Decree of the Federal Commission for the Securities Market of the Russian Federation dated July 1, 1997 No. 24 “On approval of the regulation on self-regulatory organizations of professional participants in the securities market and the regulation on licensing self-regulatory organizations of professional participants in the securities market”.

Other regulatory legal acts.

State regulation of the activities of self-regulatory organizations (SROs) of professional participants in the securities market is carried out by the Federal Financial Markets Service. The Federal Financial Markets Service also maintains a register of self-regulatory organizations (SROs) of professional participants in the securities market.

The objectives of the activities of self-regulatory organizations (SROs) of professional participants in the securities market are:

1. Development and improvement of the securities market regulation system.

2. Establishing rules and standards for conducting transactions with securities that contribute to efficient operation in the securities market.

3. Implementation of supervision and control over the activities of professional participants in the securities market.

4. Protection of the legal rights and interests of securities holders and clients of professional participants in the securities market who are members of a self-regulatory organization.

5. Raising the standards of professional activity in the securities market, including the standards of professional ethics in the securities market;

6. Ensuring the conditions for professional activity in the securities market.

Based on the goals set, the following main activities of self-regulatory organizations (SROs) of appraisers can be distinguished:

1. A self-regulatory organization (SRO) establishes binding rules for its members to carry out professional activities in the securities market, standards for conducting transactions with securities, and also monitors compliance by its members with the rules and standards adopted by the self-regulatory organization (SRO).

2. Creates and maintains efficient systems control and supervision over the activities of its members, as well as promptly detects and suppresses violations of the requirements of the legislation of the Russian Federation, as well as internal documents of a self-regulatory organization (SRO).

3. Carries out training of citizens in the field of professional activity in the securities market (SM), takes qualification exams and issues qualification certificates.

4. Organizes information and methodological support for its members.

A self-regulatory organization (SRO) of professional participants in the securities market, in order to exercise its powers in the territory of the constituent entities of the Russian Federation, has the right, with prior approval from the FFMS, to create its own branches and representative offices. It is obliged to exercise control over the activities of its branches and representative offices, and is also responsible for their activities.

2.4 Self-regulatory organizations of arbitration managers

Self-regulatory organization of qualified receivers (SRO of qualified receivers) - a non-profit organization based on membership, created by citizens of the Russian Federation, information about which is included in the unified state register of self-regulatory organizations of qualified receivers and whose activities are to regulate and ensure the activities of qualified receivers.

Self-regulation of organizations (SROs) of arbitration managers is regulated by the following regulatory legal acts:

5. Decree of the Government of February 30, 2005 No. 52 “On the regulatory body exercising control over the activities of self-regulatory organizations of arbitration managers”.

Other regulatory legal acts.

Regulatory body exercising control over the activities of self-regulatory organizations (SROs) of arbitration managers , is Federal Registration Service. The Federal Registration Service also maintains a unified state register of self-regulatory organizations of arbitration managers . The objectives of the activities of self-regulatory organizations of arbitration managers (SROs of arbitration managers) are:

1. Association of arbitration managers to exercise control over their activities.

2. Improving the quality of services performed by arbitration managers.

3. Informing arbitration managers.

Based on the goals set, the following main activities of self-regulatory organizations (SROs) of arbitration managers can be distinguished :

Development and establishment of conditions for membership of arbitration managers in a self-regulatory organization (SRO) and standards and rules of professional activity that are mandatory for members of a self-regulatory organization (SRO).

Control over the professional activities of members of a self-regulatory organization (SRO) in terms of compliance with the requirements of Federal Laws, regulatory legal acts of the Russian Federation, federal standards, standards and rules of professional activity.

Consideration of complaints against the actions of a member of a self-regulatory organization (SRO) acting as an arbitration manager in a bankruptcy case and the application of disciplinary measures against its members, including expulsion from members of a self-regulatory organization.

Ensuring the formation of a compensation fund for a self-regulatory organization (SRO) to financially secure liability for compensation for losses caused by members of a self-regulatory organization (SRO) in the performance of duties of arbitration managers.

Self-regulatory organizations of arbitration managers have the right to create associations of self-regulatory organizations and be their members. An association of self-regulatory organizations (SROs) of arbitration managers, which includes more than fifty percent of all self-regulatory organizations, information about which is included in the unified state register of self-regulatory organizations of arbitration managers, has the right to acquire the status of a national association of self-regulatory organizations.

Thus, SROs can exist in various forms, depending on the tasks and goals of self-regulation of this type of activity, as well as on:

Type of activity of subjects of SRO members - entrepreneurial and / or professional;

The specifics of the activity itself, which determines required amount SRO in this type of activity, and the structure of self-regulation in this type of activity.

The level of requirements of federal legislation regarding the degree of mandatory membership in SROs, justified by the level of public (public interest) and strategic significance of the activities of SRO entities.

CONCLUSION

In conclusion, I would like to note that in the Russian Federation, today the formation of the institution of self-regulation continues. This is manifested in the improvement of the legal framework governing the activities various kinds SROs, an increase in the number of SROs and the number of their participants.

The result of the introduction of a self-regulation system should be the development of entrepreneurial activity in certain areas of the provision of services that are important in the system market economy Russia, such as: construction, design, auditing, advertising, insurance, energy, medicine, etc. Therefore, the main goal of introducing self-regulation in various fields and areas of business and professional activity is to distinguish between state regulation and regulation by professional and business associations, creating conditions for the formation of such associations that could actually create effective mechanisms for financial and legal responsibility to the consumer. In reality, this means that the introduction of the institution of self-regulation creates an equal subject of management, participating in the preparation and adoption of decisions that regulate their own business and professional activities, but at the same time taking on additional responsibility to consumers of goods and services produced.

In general, the very concept of self-regulation is fully consistent with the principles of the democratic regime of the state, the free market economy and the political course of the Russian Federation on present stage its development.

BIBLIOGRAPHICAL DATA

1. The Constitution of the Russian Federation of December 12, 1993 (subject to amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation of December 30, 2008 N 6-FKZ and of December 30, 2008 N 7-FKZ). Online version of the ConsultantPlus system [Electronic resource] Access mode: http://www.consultant.ru/.

2. Urban Planning Code of the Russian Federation of December 29, 2004 No. 190-FZ Internet version of the Garant system [Electronic resource] Access mode: http://www. guaranteed .ru/. ;

3. Civil Code of the Russian Federation of November 30, 1994 No. 51-FZ / Internet version of the ConsultantPlus system [Electronic resource] Access mode: http://www.consultant.ru/. ;

4. On self-regulatory organizations. Federal Law of December 1, 2007 No. 315-FZ. Internet version of the Garant system [Electronic resource] Access mode: http://www. guaranteed .ru/. ;

5. About non-commercial organizations. Federal Law of January 12, 1996 No. 7-FZ Internet version of the ConsultantPlus system [Electronic resource] Access mode: http://www.consultant.ru/. ;

6. On insolvency (bankruptcy). Federal Law No. 127-FZ of October 26, 2002 Internet version of the Garant system [Electronic resource] Access mode: http://www. guaranteed .ru/. ;

7. About the securities market. Federal Law No. 39-FZ of April 22, 1996 Internet version of the ConsultantPlus system [Electronic resource] Access mode: http://www.consultant.ru/.;

8. On the regulatory body exercising control over the activities of self-regulatory organizations of arbitration managers. Government Decree of February 30, 2005 No. 52 Internet version of the ConsultantPlus system [Electronic resource] Access mode: http://www.consultant.ru/. ;

9. On protecting the rights and legitimate interests of investors in the securities market. Federal Law of March 5, 1999 No. 46-FZ Internet version of the Garant system [Electronic resource] Access mode: http://www. guaranteed .ru/. ;

10. Approval of the Regulations on the Federal Financial Markets Service. Decree of the Government of the Russian Federation of June 30, 2004 No. 317. Internet version of the ConsultantPlus system [Electronic resource] Access mode: http://www.consultant.ru/.

11. Zhilinsky S.E. Business Law ( legal basis entrepreneurial activity) - 8th ed., revision. and additional / S.E. Zhilinsky,. - M.: Norma, 2007. - 944 p.

12. Everything about SRO is a specialized project on self-regulation in the Russian Federation. [Electronic resource] Access mode: http: // www.all-sro.ru/.

About self-regulatory organizations. Federal Law of December 1, 2007 No. 315-FZ. Internet version of the Garant system [Electronic resource] Access mode: http://www. garant.ru/.

Town Planning Code of the Russian Federation of December 29, 2004 N 190-FZ. / Electronic resource.[Access mode]: www. guarantee. ru.

SRO auditors- a non-profit organization established on the terms of membership in order to ensure the conditions for the implementation of audit activities (part 1 of article 17 of the Audit Law).

As mentioned above, the process of self-regulation of entrepreneurial activity is regulated by the Federal Law of December 1, 2007 No. 315-FZ “On Self-Regulatory Organizations” (hereinafter referred to as the SRO Law). The adoption of this Law was the beginning of the reform of the system of state regulation of audit activities, since there was a transition from such a traditionally used method of state influence on business, such as licensing, to self-regulation.

Self-regulation is carried out on the terms of association of subjects of entrepreneurial or professional activity in SROs. The essence of self-regulation lies in the fact that the state transfers certain functions to the SRO for state regulation of entrepreneurial and professional activities. On the question of the legality of such a transfer, the Constitutional Court of the Russian Federation stated: “The Constitution of the Russian Federation does not prohibit the state from transferring the powers of executive authorities to non-governmental organizations participating in the performance of certain functions of public power. Within the meaning of its articles 78 (parts 2 and 3) and 132 (part 2), such a transfer is possible provided that it does not contradict the Constitution of the Russian Federation and federal laws.

This legal position was confirmed in subsequent acts of the Constitutional Court of the Russian Federation.

“The constitutional principle of a democratic law-based state and the freedom of economic activity guaranteed by the Constitution of the Russian Federation presuppose the development of the principles of self-government and autonomy in the economic sphere necessary for the formation of civil society, a manifestation of which is the creation of self-regulatory organizations.

SROs should be considered as an institutional means of self-regulation of business relations.

The civil legal status of SROs is determined by the provisions of the Civil Code of the Russian Federation. The fundamentals of the legal status of SROs as non-profit organizations are established by the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations”.

According to the international practice By definition, a Self-Regulating Organization is an organization that exercises some degree of regulatory authority over a particular area of ​​activity.

According to paragraph 3 of Art. 50 of the Civil Code of the Russian Federation, SROs are created in the organizational and legal forms of associations (unions) - corporate legal entities (corporations), the founders (participants) of which have the right to membership in them and form them supreme body(Clause 1, Article 65.3 of the Civil Code of the Russian Federation). In accordance with Art. 123.8 of the Civil Code of the Russian Federation, an association (union) is an association of legal entities and (or) citizens based on voluntary or, in cases established by law, on mandatory membership and created to represent and protect common interests, including professional ones, to achieve socially useful goals, as well as other purposes that do not contradict the law and have a non-commercial nature.

As a general rule, associations (unions) may have civil rights and bear civil obligations corresponding to the goals of their creation and activities, provided for by the charters of such organizations.

A non-profit organization acquires the status of a self-regulatory organization of auditors from the date of its inclusion in State Register SRO and loses such status from the date of exclusion of information about it from the specified register. The register is maintained by the Ministry of Finance of Russia.

The specificity of the legal nature of SROs is due to the combination of private and public legal principles in their activities. The Constitutional Court of the Russian Federation noted the special status of the SRO: “Self-regulatory organizations ... have a dual legal nature: on the one hand, these are non-profit organizations and they are registered in the manner prescribed by Art. 3 of the Federal Law "On Non-Commercial Organizations", on the other hand, from the date of inclusion in the Unified State Register of Self-Regulatory Organizations, they acquire a special public law status of SROs.

The condition for inclusion in the register of SRO auditors is compliance with the established part 3 of Art. 17 of the Audit Law to such requirements as:

• association in the SRO as its members of at least 700 individuals or at least 500 commercial organizations that meet the requirements established by the Audit Law;
• availability of approved rules for the implementation of external quality control of the work of members of SRO auditors, adopted rules for the independence of auditors and audit organizations and an adopted code of professional ethics for auditors;
• providing SRO auditors with additional property liability of each of its members to consumers of audit services and other persons through the formation of a compensation fund (compensation funds) of SRO auditors.

Functions, rights and obligations of SRO auditors are determined by Art. 17 of the Audit Law and art. 6, 14 of the Law on SRO.

In order to provide access to information, the SRO of auditors, in accordance with the requirements of the Law on SROs, is obliged to create and maintain a website in the information and telecommunication network Internet, the electronic address of which includes a domain name, the rights to which belong to this SRO. The list of information posted on the official website of the SRO is determined by Part 2 of Art. 7 of the SRO Law. In the manner determined by the SRO itself, it has the right to place Additional information on the activities of its own and its members (part 7 of article 7 of the Law on SROs).

Therefore, the principle of transparency (from the French transparent - transparent) is one of the fundamental principles of SRO activity. For violation of obligations to disclose information, Art. 14.52 of the Code of Administrative Offenses of the Russian Federation provides for the responsibility of the SRO.

To carry out its activities as a self-regulatory organization of auditors, a non-profit organization creates specialized bodies that control and consider cases on the application of disciplinary measures against members of the SRO of auditors.

If a member of the SRO of auditors has violated the requirements of the Law on Auditing, auditing standards, rules for the independence of auditors and audit organizations, the code of professional ethics of auditors, the SRO of auditors may apply the following disciplinary measures (Article 20 of the Audit Law):

• issue an order obliging a member of the SRO of auditors to eliminate the violations identified by the results of an external audit of the quality of his work and setting the deadlines for their elimination;
• issue a written warning to a member of the SRO of auditors about the inadmissibility of violating the specified requirements;
• impose a fine on a member of the SRO of auditors;
• make a decision to suspend the membership of the audit organization, the auditor in the SRO of auditors for a period until they eliminate the identified violations, but not more than 180 calendar days from the day following the day of adoption said decision;
• decide on the exclusion of the audit organization, the auditor from the members of the SRO of auditors;
• apply other measures established by internal documents of SRO auditors.

The auditor, in respect of which a decision has been made to suspend his membership in the SRO of auditors, during the entire period of validity of such a decision, is not entitled to:

• participate in the implementation of audit activities;
• give recommendations confirming an impeccable business (professional) reputation to persons wishing to become members of the SRO of auditors;
• participate in the work of elected and specialized bodies of SRO auditors.

An audit organization, an individual auditor, in respect of which a decision has been made to suspend their membership in the SRO of auditors, during the entire period of validity of such a decision, is not entitled to: conclude contracts for the provision of audit services and make changes to contracts for the provision of audit services that entail an increase in the obligations of the audit organization, an individual auditor concluded prior to the adoption of the said decision by the SRO of auditors.

As mentioned, state control (supervision) over the activities of the SRO of auditors is carried out by Rosfinnadzor. in the form of plans and unscheduled inspections according to the Federal Law of December 26, 2008 No. 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control”, taking into account the specifics of the SRO and the conduct of inspections established by Art. 22 of the Audit Law.

If, during the audit, violations of the requirements of the Law on Auditing, auditing standards, rules for the independence of auditors and audit organizations, and the code of professional ethics for auditors are revealed, Rosfinnadzor may apply the following measures of influence:

• issue an order obliging the audit organization to eliminate the violations identified by the results of an external audit of the quality of its work and setting the deadlines for their elimination;
• issue a warning in writing about the inadmissibility of these violations;
• send the SRO of auditors, of which the audit organization is a member, a binding order to suspend the membership of the audit organization in the SRO of auditors for a period until it eliminates the identified violations, but not more than 180 calendar days from the day following the day the said decision was made;
• send an SRO of auditors, a member of which is an audit organization that has committed a violation of the requirements established by Part 6 of Art. 1, part 1, art. 8, pp. 2.1 and 3 h. 2 and h. 3 art. 13 of the Law on Audit, a mandatory order to exclude information about an audit organization from the register of auditors and audit organizations.

• For more on self-regulation, see: Self-regulation of entrepreneurial and professional activities. Unity and differentiation: monograph; ed. I.V. Ershov. M. : NORMA: INFRA-M, 2015; Ershova I.V. Self-regulation of entrepreneurial and professional activities: issues of theory and legislation // Actual problems Russian law. 2014. No. 10; She is. Self-regulation of entrepreneurial and professional activities // Business and law in Russia and abroad (supplement to the journal "Entrepreneurial Law"). 2014. No. 3.