Право господарського відання в системі речових суб’єктивних цивільних прав

Abstract

Досліджено право господарського відання в системі речових суб’єктивних цивільних прав. Проаналізовано нормативно-правове забезпечення права господарського відання в історичній ретроспективі: від першої згадки в Законі СРСР «Про власність в СРСР» від 6 березня 1990 р. до сучасного періоду розвитку цивілістики. Приділено особливу увагу питанню змісту права господарського і його співвідношення з іншими речовими правами. The article is devoted to the right of economic management in the system of real subjective civil rights. The author analyzes the legal support of the right of economic management in historical retrospect i.e. from the first mention in the Law of the USSR «On Property in the USSR» from March 6, 1990 to the modern period of development of civilistics. In the article, the author notes that the issue of effective use of state property in modern conditions is becoming very relevant. Business management is quite young in the subjective subjective civil rights system, but it still needs further scientific understanding and elaboration of the ways of its evolution, since many foreign states have completely transformed it or abandoned it altogether. The same thing is for the national legislator to take a principled position on its further evolution. The study of the right of economic management in historical retrospect allowed the author to form a position on changing the attitude of the legislator to this right from full recognition in the civil legislation of the early 90›s to the transfer to the Economic Code of Ukraine and no mention in the modern Civil Code of Ukraine. The Law of Ukraine «On Entrepreneurship» stated that «In exercising the right of full economic management, a state- owned enterprise owns, uses and disposes of the said property at its discretion, committing to it any acts that do not contradict the current legislation and the charter of the enterprise.» From the above the author concludes that in comparison with the right of operational management, the subject of management of the state property has much wider powers. Thus, the entity has all three powers, but they do not need to be equated with ownership. Because the restrictions are still present, they relate to the disposal of certain types of property that can be implemented only with the consent of the owner. The author also examines the views of scientists who say that the exercise of economic management rights is not limited to the public and communal sectors of the economy, because even the private owner can attach the property created by the entity. On the basis of such researches the author reveals problems when applying the construction of economic management. The issue of state liability for the obligations of state-owned commercial enterprises was also reflected in the article. In particular, it is noted that the state is not responsible for the obligations of state-owned commercial enterprises, except it is provided by law. The author has paid special attention to the issue of the moratorium on the forced sale of property of state-owned enterprises. As a general conclusion, the author proposes the right to keep the economic management in the national legislation, but clearly state the restrictions in the competence of the management of the state commercial enterprise’s property. The author stands for the position that clearly spells out restrictions on property rights and so clearly defines the restriction on the right of economic management. Only with a detailed regulation of such restrictions the state property management entity will be able to carry out its activities effectively.