Problems of legal regulation of economic activities in Ukraine

Therefore, to solve these issues, the Interdepartmental Working Group on Issues of Accelerated Review of Instruments of State Regulation of Economic Activity was created. The co-chairs of the group are the First Vice Prime Minister of Ukraine - Minister of Economy and the Vice Prime Minister of Ukraine - Minister of Digital Transformation.

It is assumed that the main tasks of the working group will be:

- coordination of actions of state bodies in terms of reduction and optimization of state business regulation tools;

- improvement of the regulatory framework in terms of converting state regulatory instruments into electronic form.

Modern conditions of conducting economic activity indicate that an enterprise alone can have certain gains in a certain area, however, achieving real success and obtaining profits, which are evidence of successful business conduct, depends on cooperation with other economic entities that carry out related activity in the relevant field. And the entrepreneurs themselves realized that in order to work successfully in the conditions of market competition and to implement significant financial and industrial projects, it is no longer enough for enterprises to function within the framework of separate separate entities, and therefore they seek to unite into groups of enterprises by industry, territorial or another principle.

Such groups of enterprises in the theory of economic law are defined as economic associations, which have a number of significant features and differences from economic partnerships, among which the following should be noted.

First, the association is formed on the basis of certain common economic interests with the aim of combining the production, scientific and technical, commercial activities of the members of the association, centralizing management, coordination functions, etc.

Secondly, the association has property that is legally separated from the property of the members of the association, and this property includes fixed assets and working capital transferred by the members of the association to its balance sheet in accordance with the contract or charter, and property acquired by union as a result of economic activity. The property of the members of the association is not included in the property of the association. Taking this into account, the responsibility of the association and its members as legal subjects is delimited: the association is not responsible for the obligations of its members, and the latter are not responsible for the obligations of the association and each other.

Thirdly, for the purpose of centralized management by the association bodies of the activities of the participants, they delegate certain functions and powers to the association as a subject of law. The composition of the functions centralized by the association is determined by its founders in the contract or statute. These can be industrial and economic, scientific and technical, commercial and other functions.

The fourth feature of an association is a special (complex) legal entity. Its peculiarity is due to the organizational structure of the association. Only enterprises (organizations) - legal entities, each of which, upon joining the association, retains the rights of a legal entity. In this way, the association differs from an enterprise that does not have other legal entities in its composition. That is, enterprises as members of the association remain independent subjects of economic law, at the same time, the association of enterprises is also an independent subject of law. Therefore, from the point of view of legal personality, the association is a set of independent legal entities whose common property rights and interests are realized by the association.

Thus, an economic association is a complex economic organization, which was created on the basis of a combination of material interests of participating enterprises, acts on the basis of a founding agreement or statute as a legal entity.

In the current conditions, the need for the existence of large business organizational structures - associations, concerns, business associations, consortia - is due to the objective reasons for their formation and functioning:

a) the need to combine all stages of the technical process, which enables the comprehensive use of raw materials and materials;

b) cooperation of interconnected specialized productions, which makes it possible to manufacture the final product in a complex manner;

c) ensuring the completeness of the cycle «science - technical developments - investments - production - sales - consumption»;

d) the mass production of products, a stable assortment, which significantly reduces costs per unit of production, makes it cheaper, and makes it available to the population.

The legislation of Ukraine provides for a variety of forms of association by economic entities of their activities. One of the most interesting are economic associations, which provide a combination of economic activities of economic entities with the aim of achieving a single goal - economic associations.

The creation of an economic association provides its participants with strategic advantages over competitors, in particular in the field of technological development, provision of resources, and opportunities to implement the results of scientific research; allows to integrate the life cycle of the product from design development to its customer service, as they can include research organizations, design bureaus, experimental and serial factories, coordinate the activities of all links of the technological chain and attract large financial resources.

Today in Ukraine, economic associations have been created in the most important spheres of state activity: aircraft construction (State Aircraft Construction Concern «Aviatsiya Ukrainy»), peat mining (State Concern «Ukrtorf'), nuclear energy (State Concern «Nuclear Fuel»), alcohol (State concern «Ukrspirt»), broadcasting (Concern of radio broadcasting, radio communication and television) and others.

The procedure for the formation and operation of economic associations is regulated by the provisions of the Economic Code of Ukraine (Chapter 12). In accordance with the current legislation, an economic organization formed by two or more enterprises for the purpose of coordinating their production, scientific and other activities to solve joint economic and social tasks is recognized as an association of enterprises.

Associations of enterprises are formed by enterprises on a voluntary basis or by the decision of bodies that, in accordance with this Code and other laws, have the right to form associations of enterprises. Enterprises formed under the legislation of other states may be included in the association of enterprises, and enterprises of Ukraine may be included in the association of enterprises formed on the territory of other states.

Depending on the order of establishment, associations of enterprises can be formed as economic associations or as state or communal economic associations. At the same time, the Code provides specifics for the formation and activity of state economic associations, which is due to the special status of such associations as subjects exercising powers to manage state - owned objects. The following main forms of enterprise associations are distinguished: associations, corporations, consortia, concerns, while the Economic Code provides for the possibility of forming other forms of enterprise associations provided for by law.

An association is a contractual association created for the purpose of permanent coordination of the economic activities of the united enterprises, through the centralization of one or more production and management functions, the development of specialization and cooperation in production, the organization of joint productions on the basis of the association of financial and material resources of participants to meet mainly the economic needs of association members.

A corporation is recognized as a contractual association created on the basis of a combination of industrial, scientific and commercial interests of the united enterprises, with their delegation of separate powers of centralized regulation of the activities of each of the participants to the corporation's management bodies.

A consortium is a temporary statutory association of enterprises for the achievement by its participants of a certain common economic goal (implementation of targeted programs, scientific and technical, construction projects, etc.). The consortium uses the funds provided by the participants, the centralized resources allocated to finance the relevant program, as well as the funds coming from other sources, in the manner determined by its charter. If the goal of its creation is achieved, the consortium ceases its activity.

A concern is recognized as a statutory association of enterprises, as well as other organizations, based on their financial dependence on one or a group of association participants, with the centralization of the functions of scientific, technical and industrial development, investment, financial, foreign economic and other activities. Participants of the concern grant it part of their powers, including the right to represent their interests in relations with authorities, other enterprises and organizations. Members of a concern cannot simultaneously be members of another concern.

The Code provides that enterprises - participants in the association of enterprises retain the status of a legal entity regardless of the organizational and legal form of the association, and the provisions of this Code and other laws on the regulation of the activities of enterprises apply to them. An enterprise - a member of an economic association has the right to:

- voluntarily withdraw from the association under the conditions and in the order specified by the founding agreement on its formation or the charter of the business association;

- to be a member of other associations of enterprises, unless otherwise established by law, the founding agreement or the charter of the business association;

- to receive information related to the interests of the enterprise from the business association in accordance with the established procedure;

- to receive part of the profit from the activities of the economic association in accordance with its charter. The enterprise may also have other rights provided for by the founding agreement or the charter of the business association in accordance with the law.

Also, the Economic Code has resolved the issue of management of the association of enterprises. Thus, business associations have higher management bodies (general meetings of participants) and form executive bodies provided for by the statute of the business association.

At the same time, the current regulatory framework is insufficient and needs to be improved, taking into account the real needs of development. Today, the only legislative act that contains norms regulating the procedure for the creation and operation of associations of economic entities is the Economic Code of Ukraine. However, the Commercial Code regulates these issues quite schematically, since it is an act that establishes the legal foundations (fundamentals) of economic activity (management) and regulates a wide range of social relations, which makes it impossible to regulate in detail issues related to the activities of economic associations. especially state ones.

This led to the emergence of gaps in the legal regulation of relations in this area, in particular, in matters of formation and termination of associations, formation of management bodies, formation of authorized capital, withdrawal of members from the membership of the association, relations of the association with its members, peculiarities of formation and activities of business associations with the participation of business entities based on state and communal property. The imperfection of the legislation on economic associations, in turn, has a negative impact on subjects of economic activity who need to combine their activities to achieve a certain social or economic goal.

So, in particular, the current legislation provides for the possibility to join an association only for enterprises. However, as practice has shown, it is also necessary for institutions and organizations to be part of an economic association (for example, for the purpose of implementing scientific and innovative inventions, developments, proposals). Also, the given provision of the current legislation limits the possibility of individual entrepreneurs to join business associations, which also limits their potential production opportunities.

Currently, the legislation does not provide for the possibility of forming so-called «mixed» economic associations, that is, those formed with the participation of state economic entities and economic entities of other forms of ownership. However, the need for legislative consolidation of the possibility of their existence is obvious and conditioned. In particular, the unification of state-sector enterprises with non-state economic entities will contribute to the attraction of investments in joint projects, will provide an opportunity to use management methods, knowledge, and skills developed in the private sector of the economy.

Also, in the field of regulation of the order of formation, activity and management of state economic associations, the legislation contains many gaps and contradictions, which make it very difficult to control the effective management and use of state-owned objects. Thus, the powers of state management entities in relation to state economic associations are often duplicated, and the state economic associations themselves are endowed with narrow powers, which generally nullifies the very idea of creating an association of economic entities - directing and coordinating the activities of its members.

Improvement of the regulation that exists today is possible through the adoption of a separate Law on the Association of Business Entities, which will provide an opportunity to regulate in detail the relations related to the activities of state business associations. In a separate law, which will be aimed exclusively at determining the legal status and specifics of the activity of economic associations, maximum attention can be paid to the regulation of all aspects of the functioning of these entities.

The relevant project has already been prepared and submitted by the Cabinet of Ministers of Ukraine as a legislative initiative to the Verkhovna Rada of Ukraine - the draft Law of Ukraine «On Business Associations» (registration No. 5045 dated August 6, 2009).

The draft Law of Ukraine «On Business Associations» provides for:

- define the concept of economic association and their types;

- regulate the procedure for the formation of an economic association;

- to establish the rights and obligations of the participants of the economic association;

- determine the management bodies of the economic association, their powers, the order of formation and decision-making;

- to establish the legal regime of the property of the economic association;

- determine the conditions and grounds for the participant's exit from the business association;

- regulate the procedure for termination of the business association;

- to establish the specifics of formation, activity, termination and management of a state economic association.

The draft Law contains different approaches to regulating the activities of state and communal economic associations and economic associations created by economic entities based on private property. In addition, the project envisages the possibility of forming so-called «mixed» economic associations, that is, those formed with the participation of state economic entities and economic entities of other forms of ownership.

The draft law envisages changing the existing status of such structures from associations of enterprises, which can include only legal entities carrying out production activities, to an economic association, which can unite economic entities of any organizational and legal form. In particular, this will provide an opportunity to involve scientific institutions in order to implement the latest developments and achievements of scientific thought and implement innovative projects.

The project envisages clearly defining the management bodies that can be formed by the business association, their powers and the procedure for their decision-making. Thanks to the proposed provisions, the gaps in the regulation of the activities of the management bodies of the economic association will be eliminated. Particular attention in the project is given to determining the legal status of the state economic association. This is due to the fact that today such associations are created mainly in sectors strategically important for the economy and the state as a whole and require detailed and clear regulation of the powers of the authorities that exercise control over their activities on behalf of the owner-state, while simultaneously ensuring the freedom of economic activities of state enterprises, institutions and organizations that will be part of them.

The project envisages changing the legal status and scope of powers of the state economic association as a subject of management of state-owned objects, which are defined by the Law of Ukraine «On the Management of State-owned Objects». This is due to the fact that today state business associations have very limited powers in relation to the enterprises that are part of them, which complicates (makes impossible) the process of their effective management of state-owned objects, as well as the fulfillment of the goal their formation (coordination of economic activity of participants).

In addition, the current legislation provides that enterprises that are part of a state economic association are under the management of this economic structure and at the same time remain in the sphere of management of the authorized management body (ministry). At the same time, the legislation does not clearly outline the powers and the sphere of influence on the participants of the body exercising control over the activities of the state economic association, which leads to the emergence of double management, duplication of powers and significantly complicates the exercise of control over the effective management and use of state property by the participants of the state economic association association.

Also, in order to strengthen control over the state economic association, the project clearly defines that the most important and essential powers in relation to it are exercised by the Cabinet of Ministers of Ukraine (establishment and termination of the state economic association; approval and amendments to its charter; appointment and dismissal of the head; inclusion and withdrawal of a participant from a state economic association).

Considering that the project makes significant changes to the legal status of the economic association and to the regulation of relations related to the management of state economic associations, the project also envisages recognizing Chapter 12 of the Economic Code of Ukraine as having lost its validity and amending the article 168 of the Economic Code of Ukraine, the Law of Ukraine «On Management of State Property Objects» [5].

Conclusions. Thus, we hope that the adoption of the aforementioned Law will result not only in the improvement of the legislation, but also in the improvement of the efficiency of business associations. Being constantly dependent on the efficiency of enterprises, the state, in turn, affects the economic processes taking place on them by adopting laws that activate or slow down investment activity by applying mechanisms and means of management and regulation and stimulation.

References

civil property legislation

1. Демидко О.Г. Проблеми правового регулювання господарськоїдіяльності в умовах світової кризи 2020 року. Права людини в Україні: минуле, сьогодення, майбутнє. Харків. 2020. С. 87-89.

2. Господарський кодекс України. URL: https://zakon.rada.gov.ua/laws/show/436-15#Text.

3. Реформа дерегуляції: що передбачає урядовий законопроект? URL: https://news.dtkt.ua/ state/licenses/78816-reforma-deregulyaciyi-shho-peredbacaje-uryadovii-zakonoprojekt.

4. Сучасний стан правового регулювання господарської діяльності. URL: https://coordynata.com.ua/sucasnij-stan-pravovogo-reguluvanna-gospodarskoi-dialnosti.

5. Правове регулювання діяльності господарських об'єднань в Україні. URL: https://minjust.gov.ua/rn/str_24660.

References

1. Demydko O.G. Problemy pravovoho rehulyuvannya hospodars'koyidiyal'nosti v umovakh svitovoyi kryzy 2020 roku [Problems of legal regulation of economic activity in the conditions of the global crisis of 2020]. Human rights in Ukraine: past, present, future. Kharkiv, 2020. P. 87-89. [in Ukr.].

2. Hospodars'kyy kodeks Ukrayiny [Economic Code of Ukraine]. URL: https://zakon.rada.gov.ua/laws/show/436-15#Text. [in Ukr.].

3. Reforma derehulyatsiyi: shcho peredbachaye uryadovyy zakonoproyekt? [Deregulation reform: what does the government bill provide?]. URL: https://news.dtkt.ua/state/licenses/78816-reforma - deregulyaciyi-shho-peredbacaje-uryadovii-zakonoprojekt. [in Ukr.].

4. Suchasnyy stan pravovoho rehulyuvannya hospodars'koyi diyal'nosti [The current state of legal regulation of economic activity]. URL: https://coordynata.com.ua/sucasnij-stan-pravogo-reguluvanna - gospodarskoi-dialnosti. [in Ukr.].

5. Pravove rehulyuvannya diyal'nosti hospodars'kykh ob "yednan' v Ukrayini [Legal regulation of business associations in Ukraine]. URL: https://minjust.gov.ua/m/str_24660. [in Ukr.].

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