Freedom of economic activity is an article of the Russian Constitution. General provisions on the legal regulation of economic activity in the Russian Federation. Theories of economic freedom

UDK 34 BBK 67

THE CONSTITUTIONAL MEANING OF FREEDOM OF ECONOMIC ACTIVITY

YANA VITALIEVNA LOBANOVA,

Associate Professor, Department of Constitutional and Municipal Law, Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikotya E-mail: [email protected]

Scientific specialty 12.00.02 - constitutional law; constitutional trial; municipal law

Scientific supervisor: Doctor of Law, Professor V.I. Chervonyuk Reviewer: Doctor of Law, Professor E.N. Khazov

Citation index in electronic library NIION

Annotation. The article examines the concept of freedom in a philosophical sense, a constitutional sense. The content of freedom of economic activity through its basic economic rights is analyzed.

Key words: freedom in the philosophical understanding, the constitutional meaning of economic freedom, the content of freedom of economic activity.

Abstract. The article examines the concept of freedom in philosophical value, the constitutional meaning. Analyze the contents of the freedom of economic activity through its basic economic rights.

Keywords: freedom in the philosophical understanding of the constitutional meaning of economic freedom, the content of the freedom of economic activity.

IN modern world the question of understanding freedom is one of the key ones and remains relevant to this day, since freedom is closely related to a person’s desire to defend his rights and is an integral condition for the formation of a democratic state, therefore the object of analysis in the article is freedom as such in its philosophical and economic understanding, as well as defining the boundaries of such freedom.

The question of freedom has been considered by many philosophers. Let us consider the views of some philosophers on this issue. The first views on freedom originate in ancient Greek philosophy. The use of this concept is found among the sophists. By freedom they understand the “inner freedom” of the individual1. Thus, for example, one of the outstanding representatives of ancient Greek philosophy, Aristotle, defined freedom exclusively as the freedom of human action or freedom of spontaneity. Human action is free in the sense that it comes from

“own influence” or is “sua sponte”2. Another ancient Greek philosopher, Epictetus, defined freedom as the desire for one’s own aspirations “free is the one for whom everything happens according to his own free decisions”3. He focused his attention on internal freedom, calling for as little dependence on the outside world as possible.

Subsequent philosophers treated freedom already in the Middle Ages. At this stage, the key focus of thinkers is the freedom of human will. One of these was Aurelius Augustine4. The next representative of this era is Thomas Aquinas. As for Aurelius Augustine, so for Thomas Aquinas, freedom is seen as a unique phenomenon with intrinsic value - it is the possibility of choice based on reason5.

Significant changes in the relationship between the individual and society are inherent in the Renaissance. Unlike previous thinkers, the phenomenon

freedom is understood at this stage somewhat differently. Such changes are associated with transformations in various areas of human life: political - economic, socio - cultural, natural - scientific and religious, which led to an increase in the autonomy of the individual. At this stage, a free person follows not religious dogmas, but rather a mind that is capable of cognizing the world accordingly. Accordingly, the question arises about a free state, one of the functions of which should be to provide citizens with an objective opportunity to realize freedom6. From this comes a new approach to understanding freedom through an understanding of social progress. This idea was followed by B. Spinoza7,

F. Bacon., T. Hobbes8. The main ideas created by Renaissance thinkers were implemented in the Declaration of the Rights of Man and the Citizen of France in 1789, and then in the first Constitution of the French Republic in 17939.

In Russia, ideas about the need to guarantee freedom by society, state and law are reflected in the works of such philosophers as P.I. Novgorodtsev, V.S. Soloviev, I.A. and others. So, P.I. Novgorodtsev believes that the main task of the state is to ensure personal freedom and create material conditions for its existence10. V.S. Soloviev affirms the unconditional value of freedom, defines law as “a historically mobile determination of the necessary forced balance of two moral interests - personal freedom and the common good”11.

Thus, the problem of freedom has been solved throughout all cultural and historical eras, namely the issues of the relationship between the individual and the general, the free will of the individual and the interests of society. Representatives of each era defined freedom in a new way, in accordance with the reality in which they lived. It is the general philosophical approach that presupposes the interconnection of two aspects of freedom - external and internal. A philosophical understanding of the category of freedom is very important today, since without knowledge of philosophy, which is basic, it is impossible to reveal the concept, characteristics and structure of freedom in constitutional law.

A special group of fundamental rights and freedoms in constitutional law consists of economic rights and freedoms. The Constitution of the Russian Federation of 1993, in comparison with the laws of the Soviet era, proceeds from a fundamentally different position when consolidating them. In the previous aspect, there was a tendency towards the dominant role of the state in providing economic benefits to people. This kind of interpretation, reflected in constitutional norms, naturally followed from the fact that the state was the actual and sole owner of all public wealth,

which were formally declared nationwide

In the Constitution of 1993, there was a rejection of the global nationalization of the economy and now, in accordance with Part 1 of Art. 34 of the Constitution of the Russian Federation: everyone has the right to freely use their abilities and property for economic activities not prohibited by law. Article 8 of the Constitution of the Russian Federation enshrines freedom of economic activity and is contained in Chapter 1 of the Constitution of the Russian Federation, which establishes the foundations of the constitutional system; accordingly, this provision acquires the status of one of the foundations of the constitutional system. Economic freedom, within the meaning of the Constitution, presupposes, first of all, freedom of enterprise. The Constitutional Court of the Russian Federation noted that “the principle of economic freedom predetermines constitutionally guaranteed powers that constitute the main content of the constitutional right to the free use of abilities and property for entrepreneurial and other economic activities not prohibited by law”13. The normative content of freedom of economic activity as a constitutional principle includes, as evidenced by the practice of the Constitutional Court of the Russian Federation, first of all, the adoption of economic decisions free from any influence14. On constitutional principle freedom of economic activity, the norms of Ch. 2 of the Constitution, which establishes the rights inherent in a society in which a market economy operates. They can be designated as fundamental economic rights, which, in essence, reflect the constitutional meaning of Art. 8, 34 of the Constitution of the Russian Federation. These include15:

Firstly, the right to choose the type of activity or occupation means freedom economic choice: to be either an entrepreneur-employer or an employee (Article 37 of the Constitution). The principle of freedom of labor is reflected in Art. 23 of the Universal Declaration of Human Rights16. The norms enshrined in the Constitution of the Russian Federation correlate with the provisions of the ILO Declaration “On fundamental principles and rights in the world of work”17, which focused on the elimination of all forms of forced or compulsory labor and the prevention of discrimination in the field of work and occupation. The prohibition of forced labor is provided for in Art. 8 of the International Covenant on Civil and Political Rights. The term “forced or compulsory labor” in accordance with Art. 2 of the ILO Forced or Compulsory Labor Convention18 (subject to the 2014 Protocol and 2014 Recommendation), means all work or service required of a person under threat of any penalty, for which that person has not offered himself voluntarily. services. These norms are also enshrined in other international legal acts, such as: the ILO Convention “On the Abolition of Forced Labor”19; ILO Convention on Discrimination in Employment and Occupation20; Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms21; European Social Charter22 and others. For the first time in Russia, the ban on forced labor was countered at the constitutional level, and constitutional provisions were enshrined in Art. 2 of the Labor Code of the Russian Federation23. Thus, freedom of labor in Russian Federation implemented in the following forms: concluding an employment agreement (contract), becoming a member corporate organization, individual and private enterprise activities. Everyone can create an enterprise in the manner prescribed by law or carry out entrepreneurial activities without education.

tion of a legal entity24;

Secondly, the right to move freely, choose a place of stay and residence means freedom of the labor market. Freedom of movement is enshrined in Art. 13 of the Universal Declaration of Human Rights25, in Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms26 and Art. 12 of the International Covenant on Civil and Political

ski rights27. Article 27 of the Law “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”28 provides for notification registration of citizens at the place of stay and residence. The rules for registration and deregistration of citizens of the Russian Federation at the place of stay and residence within the Russian Federation are approved by Decree of the Government of the Russian Federation No. 71329. This right can be limited only taking into account the provisions of Part 3 of Art. 55 and Art. 56 of the Constitution of the Russian Federation.

Thirdly, the right to association presupposes the right for joint economic activity, and therefore the freedom to choose organizational and legal forms of entrepreneurial activity (Part 1, Article 30). The most important international acts in the field of human rights and freedoms establish the right of every person to associate and the prohibition of coercion to join any association, these include: the Universal Declaration of Human Rights (Article 20)30, the International Covenant on Civil and Political Rights (Article 22)31, European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 11)32.

According to existing legislation in Russia, there are several types of public associations, depending on the goals of their activities. Depending on whether the association has the main goal of making a profit or not, organizations are divided into commercial and non-profit. Commercial organizations in accordance with Parts 1 and 2 of Art. 50 of the Civil Code of the Russian Federation33 can be created in organizational legal forms economic partnerships and societies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises. Non-profit organizations can be created in such organizational and legal forms as consumer cooperatives, Cossack societies, movements, foundations, non-profit partnerships, private institutions, etc. Non-profit organizations can carry out entrepreneurial activities only insofar as this serves to achieve the goals for which they were created. Regulatory legal acts regulating activities

relevant organizations, in addition to those listed above, are: Federal Law “On Non-Profit Organizations”34, Federal Law “On Self-Regulatory Organizations”35, ​​Federal Law “On Public Associations”36 and others. It should be noted that the constitutional right to freedom of association is not absolute and can be limited in accordance with Part 3 of Art. 13 of the Constitution.

Fourthly, the right to own property. Triad

powers: possession, disposal and use of it both individually and jointly with other persons (Part 2 of Article 35), the same powers in relation to land and natural resources(Part 2 of Article 36), the use of property for the purposes of entrepreneurial activity (Part 1 of Article 34) means freedom to form the property foundation of entrepreneurship, turnover of property, freedom to sell produced goods on the market, including the rights to freedom of contract37. The Constitutional Court of the Russian Federation in its Resolution No. 4-P38 of February 23, 1999, particularly focuses on the connection between freedom of contract and freedom of economic activity.

The specific object of various forms of ownership is land and other natural resources. Land is the constructive basis of any real estate and, as such, its role as an object of private property in market economy highest. The Constitution reserves this right only for citizens and associations39. The right of private property is protected by federal law, and no other regulations, including the laws of the constituent entities of the Russian Federation, cannot change its status40.

Thus, freedom of economic activity consists in the legal protection of the interests of producers and consumers. The economic freedom of both is guaranteed in the most productive way by the institution of private property, a natural framework for the protection of property rights between economic entities41;

Fifthly, the right to protection from monopolism and unfair competition (Article 34) presupposes freedom of competition42. Part 2 of Article 34 partially reproduces the provisions of Art. 8 of the Constitution of the Russian Federation. It provides an exception to the principle

freedom of economic activity, since it prohibits the implementation of activities aimed at monopolization and unfair competition. Unfair competition is different from monopolization. It is characterized by the fact that there is competition and competitive struggle in the market, however, this struggle is carried out by inappropriate methods - through the popularization of aternal, inaccurate or distorted information that can cause losses to another business entity or damage it business reputation; misleading consumers regarding the nature, method and place of manufacture, consumer properties, quality and quantity of a product or in relation to its manufacturers, and so on.

Thus, the inclusion of a provision prohibiting monopolistic activities and unfair competition emphasizes the importance of this principle for today's economic systems, since monopolization until a certain time was not considered as a phenomenon that could harm the economy.

Based on the above, the study of the category of freedom in its philosophical understanding, the constitutional aspect, consideration of the main components of the economic rights of such freedom, allows us, in our opinion, to say that freedom of economic activity is important for general understanding in two senses. First, economic freedom is part of freedom itself in general. In this sense, it represents a value in itself. Secondly, economic freedom is an essential condition for political freedom. Historical experience shows that there is a direct connection between free markets and political freedom. Of course, the basic philosophical postulates of the doctrine of freedom formed the basis of the relatively new Russian constitution, and although the Constitution of the Russian Federation does not disclose the category of freedom of economic activity, it nevertheless contains and enshrines this principle in Article 8 of Chapter 1 of the Constitution of the Russian Federation (Fundamentals of the Constitutional System). In essence, freedom of economic activity is not limited to formal legal provisions in Article 8 of the Constitution of the Russian Federation. Interconnected analysis of a number of fields

LEGAL SCIENCES

The provisions of the Basic Law make it possible to discover the constitutional meaning of freedom of economic activity in articles: 34, 35, 36, in a number of provisions of Chapter 3 of the Constitution of the Russian Federation, including through the content of this very freedom.

1 See Conze W. Freiheit // Brunner O. / Conze W. / Koselleck R. (Hgg.) Geschichtliche Grundbegriffe. Historisches Lexikon zur politisch-sozialen Sprache in Deutschland. Bd. 2 Stuttgart. 1998. S. 435 f. // Parkhomenko R.N. The idea of ​​freedom in the conservative intellectual tradition: Russia and Germany. M.: Lenand, 2014. pp. 30-31.

2 pp.: Ibid. S. 16.

3 Epiktet, Diss I, 12, 9.

4 De corr. Et Gratia I, 2; Pl 44, 936.

5 Thomas Aquinas. Sum against the pagans. M., 2000. pp. 375-377.

6 Nudnenko L.A. Constitutional rights and personal freedoms in Russia // Tutorial/ Rep. zed. Honored Scientist, Dr. legal Sciences, prof., retired judge of the Constitutional Court of the Russian Federation N.V. Vitruk, St. Petersburg: R. Aslanova “Legal Center Press”, 2009. P. 30.

7 Spinoza B. Theological and political treatise / B. Spinoza // Selected works: In 2 vols. T. 2. M.. 1957. P. 239.

8 Hobbes T. Works: in 2 volumes. M., 1991. P. 163. T. 2.

9 Ado A.V. Documents of the history of the Great French Revolution. In two volumes. T. 1. M.: MSU, 1990. P. 216-227.

10 Novgorodtsev P.I. The right to a decent human existence / P.I. Novgorodtsev; edited by M.A. Kolerova and N.S. Plotnikova // Works. M.: Raritet, 1995. P. 322.

11 Soloviev V.S. Justification for the Lobster / V.S. Soloviev; edited by A.N. Erygina and S.P. Lipova // Selected works. Rost.n/D: Phoenix, 1998. P. 522.

12 Kozlova E.I., Kutafin O.E. Constitutional law of Russia // Textbook. M.: Prospekt, 2014. P. 233.

13 See: resolution of the Constitutional Court of the Russian Federation of February 24, 2004 // Rossiyskaya Gazeta. 2004. March 2. (No. 3418). P. 7.

14 Zorkin V.D., Lazarev L.V. Commentary on the Constitution of the Russian Federation. M.: Norma; Infra-M, 2011. P. 18.

15 Zorkin V.D. Commentary on the Constitution of the Russian Federation. M.: Norma; Infra-M, 2011. P. 106.

16 Universal Declaration of Human Rights. Adopted by the UN General Assembly on December 10, 1948 // Russian newspaper. Federal issue No. 235. 1995

17 ILO Declaration “On fundamental principles and rights in the world of work” (adopted in Geneva on June 18, 1998 at the 86th session of the ILO General Conference) // Russian newspaper. Federal Issue No. 98-238. 1998

18 ILO Convention No. 29 “On forced or compulsory labor” (adopted in Geneva on June 28, 1930 at the 14th session of the ILO General Conference. Ratified by the Decree of the Presidium of the Supreme Soviet of the USSR dated June 23, 1956) // Gazette of the USSR Supreme Soviet. 1956. No. 12. Art. 253.

19 ILO Convention No. 105 “On the Abolition of Forced Labor” (adopted in Geneva on June 25, 1957 at the 40th session of the ILO General Conference. Ratified by Federal Law of the Russian Federation No. 35-FZ of March 23, 1998) // SZ RF. 2001. No. 50. Art. 4649.

20 ILO Convention No. 111 “On Discrimination in the Field of Labor and Occupation (adopted in Geneva on June 25, 1958 at the 42nd session of the ILO General Conference. Ratified by the Decree of the Presidium of the Supreme Soviet of the USSR dated January 31, 1961) // Gazette of the USSR Supreme Soviet. 1961. No. 6. Art. 58.

21 Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on November 4, 1950) // SZ RF. 2001. No. 2. Art. 163.

22 European Social Charter (revised) (adopted in Strasbourg on 05/03/1996) // Bulletin of International Treaties, 2010 No. 4. P. 17-67.

23 Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ (as amended on October 5, 2015) // SZ RF. 2002. No. 1. part 1. Art. 3.

24 Sadovnikova G.D. Commentary on the Constitution of the Russian Federation. M.: Yurayt, 2016. pp. 56-57.

25 Universal Declaration of Human Rights. Adopted by the UN General Assembly on December 10, 1948 // Russian newspaper. Federal issue No. 235. 1995

26 Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on November 4, 1950) // SZ RF. 2001. No. 2. Art. 163.

27 International Covenant on Civil and Political Rights of December 16, 1966. Ratified by Decree of the Presidium of the Supreme Soviet of the USSR of September 18, 1973 No. 4212^Ш // Bulletin of the Supreme Court of the Russian Federation. 1994. No. 12.

28 Law of the Russian Federation of June 25, 1993 No. 5242-1 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation” (as amended on November 28, 2015) // Russian newspaper. Federal issue No. 152. 1993

29 Decree of the Government of the Russian Federation of July 17, 1995 No. 713 “On approval of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation and the list of persons responsible for receiving and transferring documents for registration to the registration authorities registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation” // SZ RF. 1995. No. 30. Art. 2939, NW RF. 2002. No. 34. Art. 3294, NW RF. 2008. No. 14. Art. 1412, NW RF. 2010. No. 46. Art. 6024, NW RF. 2011. No. 44. Art. 6282, NW RF. 2012. No. 17. Art. 1986, Northwestern Russian Federation. 2014. No. 34. Art. 4667, NW RF. 2015. No. 11. Art. 1601.

30 Universal Declaration of Human Rights. Adopted by the UN General Assembly on December 10, 1948 // Russian newspaper. Federal issue No. 235. 1995

31 International Covenant on Civil and Political Rights of December 16, 1966. Ratified by Decree of the Presidium of the Supreme Soviet of the USSR of September 18, 1973 No. 4212^Ш // Bulletin of the Supreme Court of the Russian Federation. 1994. No. 12.

32 Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on November 4, 1950) // SZ RF. 2001. No. 2. Art. 163.

33 Civil Code of the Russian Federation. Part 1 of November 30, 1994 No. 51-FZ (as amended on July 13, 2015) // SZ RF. 1994. No. 32. 3301; Civil Code of the Russian Federation. Part 2 of January 26, 2006 No. 14-FZ (as amended on June 29, 2015) // SZ RF. 1996. No. 5. Art. 410.

34 Federal Law “On Non-Profit Organizations” dated January 12, 1996 No. 7-FZ (as amended on November 28, 2015) // SZ RF. 1996. No. 3. Art. 145.

35 Federal Law “On Self-Regulatory Organizations” dated December 1, 2006 No. 315-FZ (as amended on November 24, 2014) // SZ RF. 2007. No. 49. Art. 6076.

36 Federal Law “On Public Associations” dated May 19, 1995 No. 82-FZ (as amended on March 8, 2015) // SZ RF. 1995. No. 21. Art. 1930.

37 Gadzhiev G.A. Economic Constitution. Constitutional guarantees of freedom of entrepreneurial (economic activity) // Constitutional Bulletin No. 1 (19), 2008. P. 251.

38 See: Bulletin of the Constitutional Court of the Russian Federation. 1999. No. 3.

39 Nudnenko L.A. Constitutional law. M.: Yurayt, 2016. P. 229.

40 Baglay M.V. Constitutional law of the Russian Federation. M.: Norma, Infra-M, 2015. P. 285.

41 Nudnenko L.A. Constitutional law. M.: Yurayt, 2016. P. 126.

42 Sadovnikova G.D. Commentary on the Constitution of the Russian Federation. M.: Yurayt, 2016. pp. 56-57.

After studying this chapter, the student should know:

• the concept of socio-economic rights and freedoms;
• the concept of freedom of economic activity;
• private property rights;
• labor rights and freedoms;
• family rights;

be able to:

own:

• skills in the implementation and observance of socio-economic rights and freedoms;
• skills to use socio-economic rights and freedoms.

Freedom of economic activity

A separate group of constitutional rights and freedoms consists of socio-economic and cultural rights and freedoms of man and citizen. They concern such important areas human life, such as entrepreneurial and other economic activities, property, labor, recreation, health, education. Their task is to provide the material, spiritual and other socially significant needs of the individual. These rights are aimed at expanding the opportunities for every member of society to possess and enjoy material goods in order to ensure a decent existence. It should be noted that a feature of social rights is that they are not subject to unconditional judicial protection.

The basis of socio-economic rights is the recognition of the need for the state to implement social functions on social protection of certain categories of the population through redistribution of national income, “leveling” social inequalities.

In the list of socio-economic rights adopted in the world practice of constitutional legislation, the right to work, to paid work, to a minimum wage wages, equal pay for an equal amount of work, welfare, housing, clothing, education, health care, recreation, and special care for children. It is generally accepted that these are not just certain demands on the government, but this is a demand from the authorities for something new, something that does not yet exist, most often to use certain amounts of money or other resources for social needs, and also to rearrange the emphasis in the choice of priorities . At the same time, there is some discrepancy in the delimitation of social, economic and socio-economic rights guaranteed by the Constitution of the Russian Federation.

The Constitution of the Russian Federation includes the right to economic activity, the right to private property (Article 35 of the Constitution of the Russian Federation), including the right to private ownership of land. Labor rights - freedom of labor, the right to work and protection from unemployment, the right to strike, the right to rest (Article 37 of the Constitution of the Russian Federation). Among the social rights, the Constitution of the Russian Federation proclaims the protection of the family, motherhood and childhood, the right to social security, the right to housing, the right to health care and medical care. The Constitution of the Russian Federation includes the right to freedom of creativity, participation in cultural life, and the right to education as cultural rights. Socio-economic and cultural rights and freedoms are enshrined in Article 34^4 of the Constitution of the Russian Federation.

Freedom of economic activity acts as one of the foundations of the constitutional system (Article 8 of the Constitution of the Russian Federation). The right to freely use one’s abilities and property for entrepreneurial and other economic activities not prohibited by law, which follows from personal freedom and the right to private property, is an important element of a market economy. According to Part 1 of Article 34 of the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. In combination with the right of private property, such freedom of enterprise acts as the legal basis of a market economy.

State bodies guarantee and encourage the development of business and entrepreneurship, protect the property of citizens on an equal basis with state property. At the same time, the state has the right to limit certain types of activities (for example, weapons production) or subject them to permits (licenses), regulate exports and imports, require financial reporting, and payment of taxes. All this is necessary in the interests of developing the country’s economy and is based on the legislative framework, primarily on the Civil Code of the Russian Federation.

Specific issues related to the implementation of the right to economic activity are regulated by a large number of legislative acts: the Civil Code of the Russian Federation, the Federal Law “On Production Cooperatives”, the Federal Law “On Limited Liability Companies”, the Federal Law “On Special Protective Anti-Dumping and Compensatory Measures for the Import of Goods” , Federal Law “On the Protection of Competition”, etc. According to Article 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this quality in accordance with the procedure established by law.

It should be noted that not all abilities are approved by the legislator in relation to entrepreneurship and other economic activities. Only those abilities that bring public benefit and are not prohibited by law are encouraged. The Constitution of the Russian Federation identifies the form of economic activity that is subject to prohibition. Economic activities aimed at monopolization and unfair competition are not allowed (Part 2 of Article 34 of the Constitution of the Russian Federation). According to Article 4 of the Federal Law “On Protection of Competition”, monopolistic activity is the abuse of a dominant position by an economic entity, a group of persons, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inactions) recognized in accordance with federal laws monopolistic activity. Unfair competition - any actions of business entities (groups of persons) that are aimed at obtaining advantages when carrying out business activities, contradict the legislation of the Russian Federation, business customs, the requirements of integrity, reasonableness and fairness and have caused or may cause losses to other business entities-competitors or have caused or may harm their business reputation. This kind of competition affects the interests of both citizens and the economy, and as a result, the interests of consumers are infringed.

Economic freedom is not an unambiguous concept, since in each country or state it means something different, mostly not similar to other states.

Economic freedom directly depends on the country’s legislation, not only economic, but also political and social.

Each state has its own legislation, and freedom is interpreted differently everywhere.

Economic freedom is shaped by the state, pursuing various goals and solving a variety of problems.

All signs and principles of economic freedom correspond to the general behavior within market system which operates within the state. Economic freedom generally characterizes market and economic relations; it should also be noted that they can change depending on changes in the economic system.

The economic freedom of citizens in every country must be protected, and there must be bodies capable of defending the interests of the people in matters of economics and finance.

Many government agencies in a wide variety of areas of the economy stand up to protect citizens in matters of economic freedom.

Today, property is the main locomotive of economic relations, and all because in modern market relations, private property is a free economic phenomenon, that is, every citizen of our country has the full right to acquire and dispose of his property, which does not limit his freedom.

Note 1

Economic freedom of property is important step economic policy of our state, he was able to form new trends in the development of economic and production relations, giving the opportunity to develop the market and the individual citizen.

Economic freedom also contributes to the formation of a favorable economic atmosphere in the market and improves the country’s economy. It allows citizens to independently improve their comfort and standard of living within the state, since everyone can regulate and replenish their finances themselves.

Basic concepts of economic freedom

The term “freedom” is clear to almost every one of us, and everyone understands it in their own way. The situation with the concept of “economic freedom” is becoming increasingly complex, since this term is already of a more professional nature and is not understandable to every citizen of society.

Definition 1

Economic freedom is a form of conducting economic activity in which an entrepreneur or business entity can independently (in whole or in part) choose the form of ownership, areas of activity, etc.

Economic freedom in different countries, and was also different at different times. Some times gave greater freedom (for example, modern democracy in Russia or other democratic countries), others less freedom (for example, the times of the USSR or tsarist times).

The overall development of the economic sector in the country depends on economic freedom. If an entrepreneur can independently, freely choose the form of ownership, choose the form of tax and accounting, is not limited in the choice of trade directions, etc., then this will have a positive impact on his personal and general economic situation in the market of a particular country.

Theories of economic freedom

The importance of economic freedom was mentioned in his teachings and treatises by Adam Smith, who said that it is freedom of economic activity that makes it possible for the well-being of the country and people to flourish, where important conditions for this are:

1. Correct and logical legislation of the country;
2. A competent and well-thought-out tax system that does not burden the “poor” population of the country with taxes;
3. The correct fundamental components of free economic activity of participants in economic relations.

These three basic rules form the basis for a competent, successful construction of the country’s economy, where residents will have opportunities for prosperity and a comfortable existence.

Freedom of economic activity: essence

Freedom of economic activity most often means freedom of entrepreneurial activity, which in particular means that the entrepreneur has the right to choose:

• What should he produce (product and direction of product policy and product range);
• Where and how to trade, that is, a stationary place of trade or a mobile one or without an office (remotely via the Internet);
• How to maintain savings or accumulative deposits, the entrepreneur chooses for himself the form and methods of accumulation in business, through common system contributions or independent;
• How and in what to invest capital and accumulated money or assets. IN in this case the entrepreneur independently decides and chooses the path of business development, where to invest capital (in business development or in a new line of activity, etc.);
• How to conduct foreign trade activities. The only thing is that in this case the legislation has clear restrictions, but the right to choose and make decisions remains with the entrepreneur, etc.

Today, the development of entrepreneurial activity directly depends on the economic relations prevailing in the market; the more effective they are, the more effective entrepreneurship is.

Definition 2

An effective market economy is a type of market in which the entrepreneur has complete freedom of choice in the production of a product and its service, and the buyer, in turn, has the full right to choose and purchase this product in this market.

In an efficient market, entrepreneurial activity begins to actively develop and “move forward,” which provides undoubted advantages not only to the entrepreneur himself, but also to the consumer of these goods and services, as well as the development of healthy competitive relations in the market.

Thus, freedom of economic activity is good way development of the market structure and economic relations within it. This freedom allows you to establish business activities, improve them and make them more efficient.

The economic basis of the constitutional system of the Russian Federation is the social market economy, which is in its infancy, within the framework of which the production and distribution of goods and benefits are carried out mainly through market relations. Their participants are private business entities competing with each other. The Russian Federation supports this competition, and also takes measures to prevent monopoly privileges and exercises appropriate control.

“In the Russian Federation,” states the Constitution (Article 8), “the unity of the economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity are guaranteed.”

The Russian Federation also has the Law of March 22, 1991 “On Competition and Restriction of Monopolistic Activities in Commodity Markets” (with amendments and additions). The Law defines the organizational and legal framework for preventing, limiting and suppressing monopolistic activities and unfair competition and is aimed at providing conditions for the creation and effective functioning commodity markets, to combat local separatism.

The law prohibits actions of an economic entity occupying a dominant position that have or may result in restriction of competition and (or) infringement of the interests of other economic entities or citizens, including such actions as the withdrawal of goods from circulation in order to create or maintain a shortage in the market , price increases, inclusion of discriminatory conditions in the contract that put the competitor in an unequal position compared to other business entities; creating obstacles to market access (exit from the market) for other economic entities; violation of the pricing procedure established by regulatory enactments, etc.

The law prohibits and, in accordance with the established procedure, invalidates, in whole or in part, agreements (concerted actions) reached in any form between competing business entities (potential competitors) that have (or may have) a total market share of a certain product of more than 35 percent, if such agreements (agreed actions) have or may result in a significant restriction of competition, including agreements or concerted actions aimed, in particular, at establishing (maintaining) prices (tariffs), discounts, surcharges (surcharges), markups;

increasing, decreasing or maintaining prices at auctions and trades; division of the market according to a territorial principle, according to the volume of sales or purchases, according to the range of goods sold, or according to the circle of sellers or buyers (customers).

The law prohibits government bodies from adopting acts and (or) taking actions that limit the independence of business entities, create discriminatory or, on the contrary, favorable conditions for the activities of individual business entities, if such acts or actions have or may result in restriction of competition and (or) infringement interests of business entities or individuals.

The Law provides state control for compliance with antimonopoly legislation when acquiring shares (stakes) in the authorized capital of business entities. Promotion of the formation of market relations based on the development of competition and entrepreneurship, prevention, limitation and suppression of monopolistic activities and unfair competition, as well as state control over compliance with antimonopoly legislation are entrusted to the federal antimonopoly body.

Creating a social market economy. The Russian Federation strives to ensure freedom of economic activity, entrepreneurship and labor, fair competition and public benefit, so that state regulation of economic life is carried out in the interests of the individual and society, and economic relations are built on social partnership between the individual and the state, the employee and the employer, the Producer and the buyer.

In the conditions of a developing market economy in Russia, the production and distribution of goods is carried out by both private and state enterprises and institutions, including enterprises and institutions of the constituent entities of the Russian Federation.

The state, in various forms, must bear responsibility for the most important aspects of the organization of production and distribution in the country as a whole, especially for those that most affect the interests of the population. We are talking, first of all, about the reliability of supplying the population with everything necessary; on guarantees of production growth and ensuring the participation in production and distribution of all able-bodied persons (i.e. employment);

on mitigating the consequences of economic instability (price regulation, etc.) or fluctuations in demand in the international market;

about relieving internal tension in regions and between certain spheres of life and groups of people.

The economic system of the Russian Federation is characterized by a variety of forms of ownership. Regulation of property relations is carried out through various legal norms, the central place among which belongs to constitutional norms - the basis of all legal regulation of property relations.

Constitutional regulation of property relations has its own specifics. It is expressed in the fact that the main task is to legally consolidate the forms of ownership recognized by the state. Thus, it is constitutional norms that decide what forms of property are recognized and guaranteed by the state.

The Constitution of the Russian Federation (Article 8) proceeds from the fact that the economic system of the Russian Federation is characterized by property in its various forms - private, state, municipal, etc.

The Constitution also establishes (Article 9) that land and other natural resources may be in private, state, municipal and other forms of ownership. They are used and protected in the Russian Federation as the basis for the life and activities of the peoples living in the corresponding territory.

The Constitution provides (Article 36) that citizens and their associations have the right to own land in private ownership. Possession, use and disposal of land and other natural resources is carried out by their owners freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.

The conditions and procedure for the use of land are determined on the basis of federal law. Currently, in accordance with the Decree of the President of the Russian Federation of October 7, 1993 “On the regulation of land relations and the development of agrarian reform in Russia”, citizens and legal entities - owners of land plots have the right sell, inherit, donate, pledge, rent, exchange, as well as transfer a land plot or part of it as a contribution to the authorized funds (capitals) joint stock companies, partnerships, cooperatives, including those with foreign investment. Citizens and legal entities can form a common joint or common shared ownership through the voluntary association of land plots and land shares (shares) belonging to them.

The Russian state protects property in its various forms on an equal basis. “In the Russian Federation,” it is indicated in Art. 8 of the Constitution, private, state, municipal and other forms of property are equally recognized and protected.” The Constitution also emphasizes (Article 35) that the right to private property is protected by law.

The most important directions for creating a market economy in Russia are privatization and denationalization of economically significant property. With all the critical approach to voucher privatization and, in general, to the methods and forms of privatization in the country, in general it cannot be denied that as a result of it, the foundations of a market economy were laid in Russia. Moreover, the gradual abandonment of state regulation of the economy is accompanied by its commercialization and, in fact, capitalization. Often this process takes ugly forms, but the main thing is that a fundamentally different economy, a different system of economic relations, and completely new business entities are created.

The Constitution of the Russian Federation establishes (Article 35) that in Russia everyone has the right to own property, own, use and dispose of it, either individually or jointly with other persons. No one can be deprived of his property except by a court decision. Forced alienation of property for state needs can only be carried out subject to prior and equivalent compensation.

In Russia, property relations not provided for by the Constitution are regulated Civil Code and other federal legislative acts, as well as legislative acts of republics within the Russian Federation, territories, regions, federal cities, autonomous regions and autonomous districts, issued within the limits of their powers.

Constitution of the Russian Federation, Article 8, Part 1. establishes and guarantees the unity of the economic space of Russia. This concept covers the unity of the market, i.e. free movement of goods, services and financial resources, support for competition, freedom of economic activity throughout the country, as well as free movement of labor (i.e. unity of the labor market, because labor still largely remains a commodity, although its legal regulation conditions, etc. are not only economic in nature, but also have enormous social significance). The latter is not mentioned in this article, apparently because the right of everyone who is legally on the territory of Russia to move freely, choose a place of stay and residence as one of the fundamental rights (and freedoms) of a person and a citizen is spoken of in Art. 27, and about freedom and working conditions - in Art. 37 of the Constitution.

Violation, by decision of the authorities of many constituent entities of the Federation, of the unity of economic space by creating zonal or regional more or less isolated markets with a ban on the import or export of certain goods, the movement of labor, etc. represents, in essence, an explicit form of partial economic separatism or at least a violation of the integrity of the state, as well as the equality and fullness of human and civil rights and freedoms on the territory of the Russian Federation (Part 2 of Article 6). A negative attitude towards these violations is expressed in Part 2 of Art. 19 of the Constitution, which establishes equality of rights and freedoms of man and citizen, regardless of place of residence (since the territory of Russia is one). Our country's experience in this regard is rich.

These phenomena have long historical roots. At least since the late 60s, several successive congresses of the CPSU discussed and emphasized the harmfulness of creating de facto customs borders between the republics of the USSR, territories and regions of Russia. Either Kursk and some other regions prohibited the “export” of potatoes or other products beyond their “limits” for years, then the leadership of the Tsentrosoyuz (consumer cooperation) complained about similar obstacles imposed by the republican, regional and other authorities in its production and marketing activities. At the end of the 70s, for several years, the party and state authorities of Smolensk, Pskov and some other regions prohibited consumer cooperative enterprises in other territories of the USSR from selling their products in these regions, which were in short supply there, and taking the cash proceeds to themselves, rather than handing them over to bank branches of the named regions. The sale of any publishing product that has undergone all types of censorship or other control in any republic, territory or region could be arbitrarily prohibited by the secretary of the local CPSU committee. Party Secretary General L.I. Brezhnev complained about such phenomena, but no one could change all this: the power of the “appanage princes” was strengthening.

Since the problem has not lost its relevance, it became necessary to enshrine in the Russian Constitution the principle of the unity of economic space, a single market for goods, services and finance. This need is expressed in Part 1 of the analyzed article and is specified, in particular, in Art. 71 (part 1, paragraph "g"), 74 of the Constitution.

The situation with the single free labor market is more complicated. In 1932, the Soviet government restored the system of internal passports, which had been abolished by the Provisional Government, now associated with a permissive (mostly prohibitive) registration regime in cities and a similar one - statements in rural areas, but without passportization rural population. This assignment of labor to state and collective farms, the creation of closed labor markets in cities continued in the 60-70s, after passports were issued to rural residents, because the requirement to comply with the passport regime (i.e., the obligation to live at the place of registration ) has become even tougher. Even after the conclusion of the Constitutional Supervision Committee of the USSR of October 11, 1991 (VVS USSR, 1991, N 46, Art. 1307) and a number of decisions of the Constitutional Court, in particular the resolution of April 4, 1996 (VVS RF, 1996, No. 2, pp. 42-59), all regulations on the licensing procedure for registration, as well as related restrictions on the rights of owners to own, use and dispose of their housing and other property at their own discretion were declared unconstitutional and contrary to international human rights acts and lost their legal force - the situation has changed only partially. Organs state power a number of subjects of the Federation and local governments of several large cities continued to insist on maintaining administrative and economic measures (by establishing huge payments to local budgets even from citizens who had already bought apartments in these cities) preventing the free movement of citizens and their choice of place of stay and residence. But citizens must be free throughout the entire territory of Russia, with the exception of special areas or cases that can only be established by federal law.

Violations of the unity of the economic space are associated with restrictions on both market competition and freedom of economic activity, even after the abolition of many Soviet administrative, legal and criminal legal measures directed against freedom of economic, especially private (primarily trade) activity. Therefore, an important economic task of the government after the failure of the August 1991 putsch, the collapse of the USSR and the elimination of the monopoly dominance of the CPSU apparatus was the restoration of the unity of the economic space of Russia.

The Decree of the President of the RSFSR on the single economic space of the RSFSR dated December 12, 1991 (VVS RSFSR, 1991, No. 51, Art. 1830) was aimed at creating guarantees of this unity. According to the Decree, acts of “government and management” bodies and decisions of officials restricting the movement of goods, works and services on the Russian domestic market were to be declared invalid. The further development of legal regulation of economic relations characteristic of this single space is associated primarily with the Constitution of 1993.

The unity of the economic space is ensured by the unity of legislative regulation of the economy. Legislation in the economic sphere should provide for generally binding rules for the functioning of the market, their recognition throughout Russia, the protection and protection of all forms and subjects of economic activity, unified financial, currency, credit and customs regulation. Legal support for the unity of the economic space in Russia is largely carried out by the Civil Code of the Russian Federation.

The constitutional responsibilities of the state, its bodies and their officials cover the creation and maintenance of such a unity of economic space that corresponds to all its properties, arising not only from Art. 8 of the Constitution of the Russian Federation, but also from other provisions of the Basic Law. So, although the establishment of the legal foundations of the single market in Russia is mentioned only in Art. 71 of the Constitution of the Russian Federation, as one of the problems relating to the exclusive jurisdiction of the Russian Federation, all constitutional provisions on the economy describe precisely a single market economy with its freedom of economic activity within the entire country - both for citizens, according to Part 1 of Art. 34, and for all other owners equal to them (the Federation, its subjects, municipalities, enterprises, etc.).

But this freedom is not absolute. The Constitution of a democratic, legal and social state, while recognizing, respecting and protecting this freedom, cannot allow its abuse by anyone. Therefore, the Constitution of the Russian Federation not only directly prescribes freedom of economic activity within the single economic space of the country, not only establishes the basis for the delimitation of jurisdiction and powers between the Federation, its subjects and local governments in the economic field (Part 3 of Article 11, Article 12, 71-73, 130-133), and partly the competence of some government bodies in the economic sphere (clauses “a” - “g”, “e” part 1 of article 144, article 127), but also determines a number restrictions on the freedom of all subjects of economic activity (Part 2 of Article 34).

These restrictions arise primarily from the content of human and civil rights and freedoms, as well as from the state’s obligation to recognize, respect and protect them (Articles 2, 17, 18). Since state policy is aimed at creating conditions that ensure a decent life and free development of a person, including in the sphere of labor and its payment (Article 7), it is clear that freedom of economic activity should not contradict state rules in this area.

If the Constitution prescribes (Article 9) that land and other natural resources must be used and protected as the basis of life and activity of the peoples living in the relevant territory, then it is obvious that economic activity so free that it would destroy this basis is unacceptable, as well as free possession, use and disposal of natural resources by their owners, if this causes damage to the environment or violates the rights and legitimate interests of other persons (Part 2 of Article 36).

If, according to Part 3 of Art. 35 of the Constitution, it is possible to forcibly alienate property for the needs of the state in court and subject to certain conditions, then one cannot help but admit that this is also a certain limitation of economic freedom and property rights.

In the same way, the obligation of everyone to preserve nature and the environment (Article 58), placing the protection of the latter and ensuring environmental safety under the joint responsibility of the Russian Federation and its constituent entities, as well as the right of everyone to a favorable environment, to reliable information about its condition and to compensation damage caused by an environmental offense (Article 42) cannot but prevent abuse of freedom of economic activity, predatory use of natural resources, etc. The obligation of everyone to pay legally established taxes (Article 57) may conflict with the right to free economic activity and even the right to property: excessively high taxes may be severely restrictive, although lower taxes may encourage formally free economic activity; optimal measure of taxation that would properly replenish the treasury and at the same time regulate different kinds economic activity in accordance with the public interests, in some cases it has not yet been possible to find, although the tax legislation has adopted a number of important measures in this direction.

The rights and freedoms of a person and citizen for economic activity may be limited, along with his other rights and freedoms, by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, and ensure defense and state security (part 3 of article 55). Rights and freedoms in the field of economic activity established in Art. 27 (freedom of movement, choice of place of stay and residence), part 1 of Art. 34 (free use by everyone of their abilities and property for such activities), Art. 35 (right of private property and inheritance), Art. 36 (ownership of land and freedom of possession, use and disposal of natural resources), Art. 37 (freedom of labor), art. 42 (the right to a favorable environment), etc., may be limited in a state of emergency (Article 56). For foreigners and stateless persons who enjoy rights and bear responsibilities on an equal basis with Russian citizens, additional restrictions may be established by federal law or an international treaty (Part 3 of Article 62).

In a number of cases, the Constitution only general form speaks of the possibility of prohibition by law (of the Federation or its subject) of certain types of economic activity. There are, for example, bans on the cultivation of plant materials for the production of drugs, on such production and on the trade in drugs containing drugs without special permission and control from the state. Economic activities of citizens and legal entities, enterprises, etc. generally must occur within the framework of their special legal capacity.

The unity of Russia's economic space requires the unity of legislation on the national economy. This legislation should provide for the recognition throughout the country of acts (documents) of state authorities and local governments of all levels. It must support competition by limiting monopolism, monitoring and regulating its inevitable trends (primarily in the field of natural monopolies), promoting the creation and development of new independent enterprises, in particular in already monopolized market sectors. The implementation of these ideas began in 1990-1992.

The need to create stable, generally binding rules for the functioning of a free market economy that do not contradict individual, collective and universal rights, freedoms and legitimate interests has been largely satisfied by the adoption and enforcement of the first three parts of the Civil Code. They regulate in detail and in accordance with the Constitution legal status individuals and legal entities, property rights and other real rights, general issues of the law of obligations and numerous individual types of obligations. Questions civil law, not included in these three parts (for example, copyright, invention law), have so far been regulated by the Civil Code of the RSFSR of 1964 and federal laws. In the same way, relations regarding the use and protection of natural resources and much more remain only partially regulated on the basis of the Constitution; It turned out to be especially difficult to legislatively solve the problem of the conditions of ownership, use and disposal of agricultural lands, which limit the right of ownership and, in particular, the market turnover of these lands, supposedly in order to ensure their highly efficient use both in the interests of the owners and in the general interests.

The economic role of a democratic legal social state in a market economy comes down mainly to the implementation of three functions:

1) legislative definition of the circle of subjects of law for certain types of economic activity, as well as its objects and the relationships between them, in other words, the legal rules by which economic activity is carried out;

2) encouragement, protection and protection of socially and economically feasible forms of this activity (the behavior of its participants), carried out mainly through regulatory measures of a predominantly economic nature (increasing or lowering tax rates, bank interest on loans provided by state or semi-state banks; increasing or lowering prices for products and services produced under government orders, etc.), but within certain limits and by governmental, non-economic measures, especially when addressing labor, environmental, health and some others social problems National economy;

3) prevention of unification in the hands of public authorities, i.e. state power or local government, two areas of activity - the inherent exercise of power with the characteristic of enterprises economic activity aimed at obtaining profit in one form or another, except in cases where this is directly and reasonably permitted by law.

Ensuring the unity of the economic space of Russia is of particular importance in connection with the desire to develop integration processes within the CIS, leading to the gradual unification of the economic space of Russia, Belarus and other sovereign states, in which there would be free movement of both goods, services and financial resources, as well as labor forces, harmonization of legislation and joint legal regulation of economic activities.