Право оперативного управління в системі речових суб’єктивних цивільних прав

Abstract

Досліджено право оперативного управління в системі речових суб’єктивних цивільних прав. Проаналізовано нормативно-правове забезпечення права оперативного управління в історичній ретроспективі: від першої згадки в радянському цивільному законодавстві до сучасного періоду розвитку цивілістики. Особлива увага приділена питанню змісту права оперативного управління і його співвідношення з іншими речовими правами (сервітутами, довірчою власністю тощо). The article deals with the right of operational management in the system of subjective civil rights. The author has analyzed the legal support of the right of operational management in historical retrospect i.e. from the first mention in the Soviet civil legislation to the modern period of civilistics’ development. The author states that under transition of Ukraine to the innovative model of economic development the issue of effective use of state property has got the extreme importance. The right of operational management, as one of the real subjective civil rights, requires further scientific understanding and development of ways in its evolution. Thus, this right has one manifestation in a planned economy whereas a market economy has the ability to modify and transform it. The transition to an innovative model of economic development raises the need for even more profound changes and development of such legal and regulatory support that would be a prerequisite for the most efficient management of state property. The study of the right of operational management in historical retrospective allowed the author to form a position on the change in the character of state legal entities for the property assigned to them by the owner. Independence of state-owned legal entities ends where the implementation of the functions established by the owner is impossible or difficult for some reasons. Therefore, in the transition to an innovative model of economic development, the most urgent task is to build the «right» legal personality of state legal entities and to define the boundaries of their real rights correctly. Historically, the right of operational management was first enshrined in the Foundations of Civil Law of the USSR in 1961 and provided for a legal mechanism for managing the property of the state owner. Compared to the traditional understanding of property rights, the right of operational management implied only the power to own and use, and the disposal of property remained the prerogative of the owner. The legislation of independent Ukraine also provided for the right of operational management, in particular in the Law «On Entrepreneurship». In its Art. 10 it is stated that “property which is state-owned and secured by a state-owned enterprise (other than a state-owned enterprise), belongs to it under the right of full economic control. Exercising the right of operational management, the state-owned enterprise owns and uses the property». From the mentioned above the author concludes that at the beginning of national legislation formation, the legislator took over the experience of regulating the right of operational management from Soviet civil law. Later, however, there was some modernization of the legislation under investigation. Thus, as of today, the Civil Code of Ukraine makes no mention of the right of operational management, while its legal regulation has been moved to the Economic Code of Ukraine. It is important that property based on economic law is assigned to the right of operational management, not only for the state-owned enterprise, but also for the state unitary enterprise, that is, there is an expansion of the range of entities to which such right belongs. The author also proves that there was an extension of powers in the law of operational management, because according to the provisions of the Law on Management of State Property Objects, state commercial enterprises and state-owned enterprises belonging to scientific institutions, as well as scientific and technological complexes based on state property, obliged to spend at least 50 percent of the net profit from its activity on carrying out of the initiative scientific and scientific-technical activity, financing of innovations and expansion of own material infrastructure. That is, it is provided for the possibility of partial profit disposal from the management of state property, which extends the competence of subjects in the right of operational management. As a general conclusion, the author proposes to make such a rule general and to extend it to all subjects of operational management. This will accelerate the innovative development of state-owned entities and take them a prominent place in building a knowledge-based economy.