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Materials of the Panel Discussion "Problems of the Real Estate Market in the Russian Federation" 25.02.2000
February 25 the “round table” meeting was held in the journal " Legal regulation of the market of the real estate ". The representatives of federal and Moscow authorities, business communities, lawyers, scientists, representatives of various regions of country took part in it.
The following questions were subject for discussion:
- Role of the state in legal regulation of the real estate market;
- Problem of the state concerning the optimum control of a state ownership;
- Direction of development of legislative base;
- Feature of practice of the rights application;
- Distinctive problems of regions;
- Necessity of preparation of the efficient market managers;
- Measures for lowering of taxes for the domestic commodity producers. The academician of RAEN (Russian academy of the natural sciences), associate editor of the journal Jolkov A.S.
In the opening statement Mr. Jolkov has paid attention to an exclusive urgency of the problems which have been submitted for consideration. He has paid the special attention to the increasing necessity of a legal study of a many-sided problem of the the real estate market dynamics. It’s not a secret, that the significant legal gaps existing in this sphere, the principled variances in treatment of its major categories, a lack of correspondence of the normative base in the regions and at a federal level, brake the efficient development of all components of the real estate. And all this reduces the budgetary base, derivates criminal intensity, constrains investment and social activity.
The academician Jolkov has paid special attention to some social aspects of development of the real estate market. In particular, he supposes, that acquires the introduction of parameters describing a parity of the social and market demand in economic practice has got a large importance. It is very important in the sphere of housing construction. The comparison of parameters, reflecting the number of families requiring for improvement of the housing conditions (social demand for housing), with the parameters describing a demand in the market of housing (market demand), allows to evaluate scales of absolute and structural deficiency of housing and necessary volumes of the state bounties to this sector of the real estate.
M.Jolkov noted, that the first issue of the journal, its contents provoked many positive responses, the editorial staff of the journal received a lot of interesting offers of cooperation .
The most important information was given by the deputy chief of department of the Russian Federation Government Administration Bagrov S.E.
At the beginning of the statement he told about general tendencies of privatization, having emphasized, that the character of privatization in Russia has been changed. The mass sale of a state ownership is not now the ground direction of this kind of activity.
The number of open joint-stock companies created during the privatization period, has achieved now more than 30 thousand, the total number of the privatized enterprises — more than 127 thousand. Thus, in 1994 22 thousand enterprises were privatized, in 1995 —10,1 thousand, in 1996 —5 thousand, in 1997 —3,4 thousand, in 1998 — about 2 thousand enterprises.
At privatization the individual privatization projects are much more required. When for some reasons it is impossible, the purposes of privatization, consequence of the decisions about sale are analyzed, the way of sale of asset is justified. The international financial advisers are widely involved in this job. However, it is necessary to add, that it is justified only at the sale of the shares of the most attractive joint-stock companies, such as, for example, "Gazprom".
It is possible to speak about amplification of the state attention to results of privatization. The state realizes that its monopoly position is lost in many spheres. Though it remains by the largest owner, it is necessary to take into account the fact, that today the state is only one of many owners in Russia. Such understanding of the provision requires also variation of the relation for use of the state-owned property. In some cases it is spoken about a system forming role of public sector in economy of Russia.
Anyway, the state disposing its asset as the ordinary owner, whose first care is to see its property bringing the income. We hear now more and more often the thesis about necessity of increasing frequency of the state ownership management efficiency, that is often considered as a problem of magnifying of the incomes from its use.
Now the state possesses the unitary state enterprises and establishments, blocks of shares of open joint-stock companies created during the privatization, real estate objects.
There are three aspects of a problem. First aspect is coupled to the increasing attention of public authorities to problems of management of the state-owned property. The concept defining the basic purposes, problems and principles of a state policy of Russian Federation in sphere of management of public sector of economy is created for making a state-owned property mechanism of control. It means the set of the economic relations coupled to use of the state-owned property, consolidated for the federal state unitary enterprises founded on the right of economic management or operational management (further the unitary enterprises) and the official bodies (further the establishments), state treasury of Russian Federation, and also property rights of Russian Federation resulting from its commercial activity (except for the state-owned property, involved in budgetary process according to the legislation of Russian Federation).
The necessity of an improvement of management is coupled mainly to the affirmation, that the market mechanisms have significant potential of "self-regulation", and the participation of the state in management will only reduce the efficiency of activity of the managing subjects. Getting an official status, such point of view has resulted to the fact that the basic efforts were concentrated on acceleration of sale of the state-owned property, while in most of countries of Europe the activity of the state is directional on ensuring of an optimum parity between the state and private sectors of economy. The variation of priorities in management of the property should be accompanied by creation of a control mechanism, which will provide a "set-up" of the state enterprises with the decision of problems of raise of activity efficiency, firstly in spheres, where the motivation of activity of the private capital is inadequate.
The normative approach to the property management can be used as the instrument of this control mechanism: the level of standards and management property specifications is established in dependence of the forms and objects of the property.
The second aspect includes the estimation of its scales. The orienting points can be placed on the basis of the following data.
About 14 thousands unitary enterprises and 23 thousands establishments exist now in Russian Federation.
We can draw your attention to the fact, that the basic problems arise in management of this kind of asset.
With adoption of the Civil Code of Russian Federation (here and after — CC of RF) the USSR Law " About the businessmen and enterprise activity " and Law of RSFSR " About the enterprises and enterprise activity "have definitively lost their legal force. According to the CC of Russian Federation the state unitary enterprise is not the owner of the asset, Russian Federation or subject of Russian Federation are the unique founders of such enterprise and holders of asset, which is granted on the right of economic management or operational management. The indicated standard is directly stipulated by the article 113 of CC of Russian Federation.
The sharing of Russian Federation in the unitary enterprise is founded on the right of a state ownership, by virtue of which it is the owner of the enterprise, possessing it as a property complex.
The legal person in the organization-legal form of the unitary enterprise is recognized by the CC of Russian Federation as a commercial organization . And in the actual conditions of transitory economy is the independent subject of managing.
The state enterprise founded on the right of economic management, independently possesses, uses and disposes of the asset (item 294 of the CC of Russian Federation) with allowance for limitations concerning the real property (item 296 of the CC of Russian Federation), which can not be disposed without the consent of the owner.
The unitary enterprise founded on the right of operational management (the public enterprise), possesses, uses and disposes of the asset, with the consent of the owner of this asset (item 297 of the CC of Russian Federation).
The functions of the unitary enterprises management are not precisely distributed between the various federal executive bodies.
The ministry of the state-owned property of Russian Federation grants the property referring to the federal property to the unitary enterprises, adjusts questions of the real property control, holds their registry, decides questions of the unitary enterprises reorganization, realizes the supervision of the unitary enterprises property productivity . The executive federal bodies affirm the charters of the unitary enterprises, appoint to the post and release from the position their chiefs, conclude, change and terminate the contracts with the chiefs of the unitary enterprises.
The contracts between the majority of the chiefs of the unitary enterprises and the federal executive bodies are not concluded, and the available contracts do not provide the responsibility of the chiefs for results of activity. The quantity of the unitary enterprises is rather significant, their basic activity sometimes doesn’t respond the state interests. The acting unitary enterprises include also enterprises subject to privatization, but not privatized for some reasons (basically by virtue of low asset liquidity). The legislation focused on mass privatization, could not take into consideration the economic features of the objects and to provide the necessary privatization order.
The organization-legal form of the unitary enterprise and of the institutes of economic management rights ,stipulated by the civil procedure law, have several negative properties.
The legal construction of the economic management right grants the subject of such right the broad audience of authorities on possession and use of the owner’s property. In reality these authorities are realized by the chief of the unitary enterprise, whose mutual relationships with the owner are regulated by labour laws. At the same time, the rights of the owner concerning the property being in economic management, are defined. The interposition of state bodies in activity of the unitary enterprises (their chiefs) outside of the established rights is improper.
In particular, the chiefs of the unitary enterprises administer the financial flows of these enterprises without any control, they accept independently the decisions on directions of use of the profit. They are not coupled by the necessity to adjust their decisions with the owners of asset (except for questions of the the real property control), the labour legislation, efficiently defending the rights of the chiefs, creates significant difficulties for application of responsibilities for results of the enterprise activity.
The authorities of the owners stipulated by the current legislation, don’t always grant him possibilities not only to demand the chiefs of the unitary enterprises of achievement of the definite qualitative indexes in the enterprises activity.
The order of cooperation of various state bodies at accomplishment of owner’s authorities concerning the unitary enterprises properly is not regulated. The obligatory audit is not stipulated for the unitary enterprises. Without the audit the supervision of their economic and financial activities is complicated.
The decision of the unitary enterprises management problems is related to the forming of the system of mutual relationships with the chiefs stimulating an efficient enterprises’ activity in the proper owner’s interests, and to the direct appropriate state-owned property management carried out by the state bodies. The decisions on creation, reorganization, liquidation of the legal persons, about definition of a subject and purposes of their activity corresponding to the state purposes , on privatization of the state-owned property, on coordination of the offers according to the state-owned property order, on control of its use and of its safety, and also other decisions can be accepted according to the authorities of the owner, stipulated by the legislation into force.
The realization of a management system supposes:
a) the definition of the quantity of the unitary enterprises necessary for executing of state functions;
b) the definition of the purpose of the state with reference to every unitary enterprise;
c) the establishment of an accounting procedure of the unitary enterprises chiefs concerning the course of executing of the accepted program (plan, business - plan), which provides the demands to the form, completeness of the reports, order of their consideration and affirmation;
d) The establishment of the method of adoption of the administrative decisions when the purposes of the state are not achieved, the program (plan, business - plan) is not executed;
e) The stricter supervision of the chiefs’ activity of the unitary enterprises.
Now the Government of Russian Federation has already accepted the appropriate decisions.
One of the most important act necessary for establishment of the chiefs’ activity supervision as well as for representatives of the state, was the order of October 4, 1999 ¹ 1116 about the affirmation of an accounting procedure of these groups of specialists. The order establishes the periodicity of the accountability, the forms and appropriate list of parameters. The main attention is paid to the parameters describing the financial stability of the enterprise or joint-stock company, and also to the bargains, which results can be essentially reflected in a composition of a unitary enterprise’s property complex .
The questions related to the definition of optimum number of the unitary enterprises, necessary to the state for accomplishment of the functions in sphere of execution, have found reflection in the order of December 6, 1999 ¹ 1348. In this act the missions concerning the analysis of activity of the unitary enterprises and preparation of the offers about their liquidation, sale, conversion to joint-stock companies or conservation to the form of the state unitary enterprises based on the right of economic management are given to the federal ministries and departments.
The order of December 9, 1999 ¹ 1366 decides a question on the order of transfer of the unitary enterprises in the property of the subjects of Russian Federation. The current legislation decides this problem only for the objects of social and cultural use, and also concerning the shares, considering them as the special kind of asset. The indicated order provides a possibility of transfer of the enterprise as of the property complex. Thus the amounts transferred from the federal budget to the subjects of Russian Federation, decrease on a value of the transferred enterprises, that is defined according to the legislation of Russian Federation .
The governmental order of Russian Federation of January 11, 2000 ¹ 23 affirms the Provision about the management of the registry of parameters economic efficiency of the federal state unitary enterprises activity. This document is an attempt to evaluate possibilities of the enterprises in the form of annually affirmed parameters of activity with the subsequent control of their executing with the purposes of the analysis of the achieved results and preparation of the offers on improvement of activity of the unitary enterprises.
The system of auditor checks of the federal unitary state enterprises (order of January 29, 2000 ¹ 81) is created. The annual auditor checks are introduced since 1999 for the enterprises, which profit volume of realization of production for one year exceeds in 500 thousand time the statutory minimum size of the wage, and also for the enterprises, which assets sum of the balance exceeds in 200 thousand time the statutory minimum size of the wage at the end of a financial year.
The measures on amplification of the federal state unitary enterprises activity supervision are stipulated by the governmental order of Russian Federation dated February 3, 2000 ¹104. The order provides the coordination of the projects of these enterprises with the Ministry of the state property of RF. Besides the indicated measures it is supposed to carry out the analysis of efficiency of activity of the enterprises, engaging the specialized organizations, the definition of a share of the enterprises subject to transfer in the federal budget, and also the definition of the recommended amount of the dividends in joint-stock companies with a state share in the charter capital.
At the same time the question on application of standards of the civil right for raise of the responsibility of the chiefs of the state enterprises is not obvious.
With reference to a case in point the appropriate decision will mean an immediate practical realization of standards and provisions of civil procedure law.
Thus, the most essential role at selection of the candidates on such position will refer to the following circumstances.
1. The management relations founded on the civil legal agreement, will mean actually transfer of control on a property complex of the enterprise to its chiefs. In this case according to the Civil Code of Russian Federation the chief of the enterprise should be registered as the individual businessman.
2. The impossibility of application of standards of the labour legislation providing the social warranties to the workers to the chiefs. Within the framework of the civil-law relations the word-record card is not made out, the total years of service are not taken into consideration and, hence, questions of a provision of pensions can be decided only within the framework of activity of not state pension funds. Besides the chief of the enterprise will not have the right on a paid holiday and temporary disablement allowance.
3. The federal state unitary enterprises registered in Russian Federation, are essentially differentiated by their financial status. Lot’s of enterprises are unprofitable, thus the basic part of their debts is constituted by the indebtedness to the federal budget. The revision of the contracts with the chiefs of these enterprises will demand not only the definition of a source of their compensation, but also the definition of obligations on the part of the state, it means, that the aggravation of a financial position of the enterprises will not be caused by actions of the owner of their asset.
Now the federal executive bodies have no experience in the field of decision of these questions.
Further mister Bagrov paid attention on the analysis of efficiency of sharing of the state in the charter capitals of joint-stock companies. They can be classified as follows:
100 percents of the shares are found in the federal property — 382 joint-stock companies;
More than 50 percents — 470 joint-stock companies;
From 25 percents up to 50 percents — 1601 joint-stock companies; less than 25 percents — 863 joint-stock companies.
It is possible to allocate the following groups of organizations by their organization-legal form, in which charter capital there is a share of the state: open joint-stock companies — 3611; the closed joint-stock companies — 251; the limited societies and partnerships — 34. The dividends under the federal block of shares have constituted in 1998 — 574,6 million rubles, in 1997 — 270,7 million rubles, in 1996 — 118 million rubles, in 1995 — 115 millions rubles (in a standard of price of 1998). The reporter supposes that the decision of problems of the management efficiency raise could be carried out by the shares finding in the federal property, by adoption of the state acts, in which the following questions would find reflection.
During the meetings of board of directors and general meetings of the shareholders the representatives of Russian Federation in the control bodies of joint-stock companies are obliged to assert an item of the state worded in written directives concerning every case in point.
In conclusion the reporter mentioned the problems of the insurance activity. It was underlined, that the including of the mechanism of insurance in process of property administration and shaping of new policy in sphere of insurance and insurance risks of management of a state ownership (within the framework of worded above opinion) should be carried out by creation of the state insurance company. Thus it is recognized, that the concentration of insurance protection of a state ownership and federal investment programs in hands of the state insurance company will promote the decision of the important social problems. Other points of view were also stated. S.E. Bagrov answered on many questions.
The editor-in –chief S.O. Bochkov told about the problems of the journal, the materials of the second issue.
The chief of co-operative "Vklad" M.G. Salkov participated in discussion of the report of Bochkov.
He has underlined the necessity of decision of several legal questions in sphere of the deposit under the real estate, leasing relations in contract activity.
The professor N.S. Guskov paied attention to the questions of personnel ensuring of the real estate market.
The dynamical development of the market relations in sphere of the real estate requires the constant additional personnel potential. And it causes a lot of problems. The system of training of personnel qualified to work in the field of operations with the real estate is not created. According to the opinion of Guskov, the journal should have a definite heading making clear a situation in personnel selection.
The professor N.P.Shevelkin told about the features of the property relations in sphere of the tourist business. He thinks that the revision of the concept development of tourist branch is obligatory. Now the general balance of external economic operations of Russia in a tourism sphere, including the “chelnoki”, has deficiency of more than 10 billion dollars annually.
In 1996 the program " Development of tourism in Russian Federation " was accepted.
The search of new organizational mechanisms is necessary.
The report of the chief of concern " Russki mekh (Russian fur) " I.I.Persiyaninova was rather interesting. The reporter spoke about a high urgency of the stated questions, has recommended to the journal to pay more attention to the analysis of an actual situation in the Russian regions. It was offered to hold a round table meeting in one of the subjects of Russian Federation.
The extensive discussion of the various real estate problems, in which more than twenty persons have taken part, will be fixed in a base of selection of a material for the following issues.
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