Subjects and participants of international investment legal relations. Subjects of investment legal relations: general characteristics and modern problems

The main subject of investment relations *(764) , regardless of the type of market in which investments are made, is an investor. There is no legal definition of an investor in the current legislation, the disclosure of this category is carried out through the concept of investment activity.

Investors are participants in investment activities who invest certain values in objects of entrepreneurial and (or) other activities in order to achieve economic or other benefits. An interesting question arises about the relationship between the categories "investor" and "entrepreneur". It is clear that every entrepreneur who develops a business invests his own, borrowed or borrowed funds into the business and, accordingly, acts as an investor in certain legal relations. But not every investor has to be an entrepreneur, otherwise, for example, the purchaser of a share or other security would have to register as an entrepreneur. Most experts are inclined to this point of view. *(765) .

It should be noted that the current legislation does not establish any restrictions on the circle of persons capable of being investors. Yes, according to law about investment activity in the shape of capital investments subjects of investment activity can be individuals, legal entities, as well as associations of legal entities created on the basis of a joint activity agreement and not having the status legal entity. Such associations include, for example, consortiums specially created for the implementation of large-scale construction. Among legal entities, it is possible to distinguish commercial and non-commercial commercial organizations, state bodies, local governments. Having a number of features, all named groups of investors, acting as subjects investment legal relations, have a legal status largely determined by the type of investment and, accordingly, the market in which they invest. Thus, the rights, obligations, guarantees and liability of investors making direct investments in the form of capital investments are regulated by law on investment activities in the form of capital investments, and those carrying out portfolio investment in securities- Laws about the securities market, about joint-stock companies etc. Principled approach to regulation legal status investors is to ensure equal rights and guarantees, the imposition of equal responsibility on all investors, regardless of their organizational and legal form and form of ownership.

Investors making capital investments have, in particular, equal rights to independently determine the volumes and directions of capital investments; possession, use and disposal of objects and results of capital investments; transfer under an agreement and (or) a state contract of their rights to make capital investments and their results to other persons; exercising control over the intended use of funds allocated for capital investments; pooling own and borrowed funds with the funds of other investors for the purpose of joint implementation of capital investments.

The rights of an investor making portfolio investments are determined by the securities he owns. So, for example, an ordinary share certifies property rights (to receive income in the form of a dividend, to a liquidation quota) and non-property rights (to participate in management, to receive information about the company's activities).

The obligations of investors making capital investments are also fixed at the legislative level and consist, in particular, in compliance with standards (norms and rules); fulfillment of legal requirements imposed by the competent state bodies and their officials; in the use of funds for the intended purpose. The obligations of a portfolio investor depend on the category and number of securities owned by him and consist, for example, in the obligation to seek prior consent from the authorities of the Ministry of the Russian Federation for Antimonopoly Policy and Entrepreneurship Support for the acquisition of more than 20% of voting shares ( art.18 Commodity Market Competition Law) or notify Joint-Stock Company with more than 1,000 shareholders owning voting shares on the intention to acquire, independently or jointly with affiliates, more than 30% of the placed ordinary shares of this society Clause 1, Article 80 JSC Law).

Investor guarantees are the most important component of their legal status. The stability of the investment climate is largely determined by the level of guarantees provided to investors. The main guarantees for all categories of investors are the provision of equal rights in the implementation of investment activities, protection of investments, including from nationalization and requisition (with the exception of cases provided for by law, and in case of requisition - if there is adequate compensation), granting the right to appeal to the court of actions government bodies, organizations, officials infringing on the rights of investors.

The legislation governing investment activity is characterized by the so-called stabilization (or "grandfather") clause, which protects the investor from changes in legislation during the implementation of an investment project that restrict his rights. Such clauses are available, for example, in the Laws on investment activities in the form of capital investments ( item 2, 3 article 15), on foreign investment in the Russian Federation ( Article 9), on production sharing agreements ( art.17). So, if in the implementation of the priority investment project made in the form of capital investments, federal laws and other legal acts are changed, leading to an increase in the total tax burden on the activities of an investor or establishing a regime of prohibitions and restrictions in relation to the implementation of capital investments, such laws and legal acts do not apply to the investor during the payback period of the investment project, but not more than seven years from the date of the start of project financing, provided that the goods imported into the territory Russian Federation, are used by the investor for their intended purpose for the implementation of a priority investment project.

Persons carrying out investment activities in the Russian Federation shall be liable in accordance with priority international treaties or the legislation of the Russian Federation.

Along with investors, participants in investment relations, depending on their specifics, can be customers, contractors, users - when making capital investments, issuers, professional participants in the securities market - when making portfolio investments.

The state, of course, has a special legal status in investment relations, which, on the one hand, can act directly as an investor, and on the other hand, as a bearer of power. Legal regulation of state participation in investment activities is carried out, in particular, federal law"On the Development Budget of the Russian Federation", Decree President of the Russian Federation "On Private Investments in the Russian Federation", as well as numerous government decrees adopted in this area.

The main source of investment activity of the state is the Development Budget, which is integral part of the federal budget, which is formed as part of the capital expenditures of the federal budget and used for lending, investing and guaranteeing investment projects. The amount of funds allocated to the Development Budget is established by the federal law on the federal budget for the financial year. Spending the funds of the Development Budget essentially determines the ways of direct participation of the state in investment activities:

lending to investment projects selected at competitions, secured by the investor's own funds and other sources financial resources in addition to budget funds;

direct investments in the property of commercial organizations implementing investment projects, with a corresponding increase in the state's share in the authorized capital of these organizations;

providing investors state guarantees in the form of a guarantee of the Government of the Russian Federation against borrowed funds for the implementation of investment projects *(766) .

Usage Money The development budget to finance investment projects is carried out exclusively on a competitive basis on the terms of repayment, payment and urgency. State guarantees are also provided on a competitive basis. The conditions for winning the competition can be:

higher (relative to other investment projects) level of return to the federal budget, calculated as an indicator budget efficiency, determined by the ratio of the amount of the discounted value of tax revenues and obligatory payments to the amount of the state guarantee (clause 8 of the Procedure for granting state guarantees);

the borrower's own funds in the amount of at least 20% of the total amount of financing of the investment project, and for large projects (not more than 50 million US dollars) - at least 10% of the specified amount;

diversification of the risk of the state with private capital, expressed in the presence of private co-investors, creditors, as well as in the presence of the investor own funds not covered by a government guarantee.

Thus, at the legislative level, principles are established that contribute to increasing the responsibility of a private investor and the efficiency of using budget funds.

The state, as the bearer of power, can influence investment activity by exercising legal regulation various areas entrepreneurial activity, including financial, banking, tax. A number of novelties in the Tax Code of the Russian Federation directly relate to the implementation of the investment policy of the state.

From January 1, 1999, commercial organizations can take advantage of the investment tax credit, which is a deferral of income tax, as well as regional and local taxes for a period of one to five years, followed by a phased payment of the loan amount and accrued interest ( Article 66 Tax Code of the Russian Federation). Interest for the use of an investment tax credit is set at no less than and no more than refinancing rates TSB RF. Tax payments organizations due to the provision of an investment tax credit can be reduced in each reporting period not more than 50% of the relevant tax payments. The loan amount for technical re-equipment can be 30% of the cost of the equipment purchased by the organization.

The basis for granting an investment tax credit may be, in particular, the organization's research and development work or technical re-equipment of its own production; implementation of implementation or innovation activities, including the creation of new or improvement of applied technologies, the creation of new types of raw materials and materials.

The decision to grant an investment tax credit for income tax in the part that goes to the federal budget is made by the federal executive authorities; in the part that goes to the budget of a constituent entity of the Russian Federation - the financial bodies of this state entity; in the part that goes to the municipality - local governments. The decision taken is formalized by an investment agreement. tax credit concluded between the taxpayer and the authorized body.

It should be noted that the current legislation does not establish any restrictions on the circle of persons capable of being investors. Yes, according to law on investment activity in the form of capital investments, the subjects of investment activity may be individuals, legal entities, as well as associations of legal entities created on the basis of a joint activity agreement and not having the status of a legal entity. Such associations include, for example, consortiums specially created for the implementation of large-scale construction. Legal entities include commercial and non-profit organizations, state bodies, local governments. Having a number of features, all these groups of investors, acting as subjects of investment legal relations, have a legal status that is largely determined by the type of investment and, accordingly, the market in which they invest. Thus, the rights, obligations, guarantees and liability of investors making direct investments in the form of capital investments are regulated by law on investment activities in the form of capital investments, and those making portfolio investments in securities - by the Laws about the securities market, about joint-stock companies and others. The principal approach to regulating the legal status of investors is to ensure equal rights and guarantees, imposing equal responsibility on all investors, regardless of their organizational and legal form and form of ownership.

The obligations of investors making capital investments are also fixed at the legislative level and consist, in particular, in compliance with standards (norms and rules); fulfillment of legal requirements imposed by the competent state bodies and their officials; in the use of funds for the intended purpose. The obligations of a portfolio investor depend on the category and number of securities owned by him and consist, for example, in the obligation to seek prior consent from the authorities of the Ministry of the Russian Federation for antitrust policy and business support for the acquisition of more than 20% of voting shares ( art.18 of the Law on Competition in the Commodity Market) or notify a joint-stock company with more than 1,000 shareholders owning voting shares of its intention to acquire, independently or jointly with affiliates, more than 30% of the placed ordinary shares of this company ( Clause 1, Article 80 JSC Law).

Investor guarantees are the most important component of their legal status. The stability of the investment climate is largely determined by the level of guarantees provided to investors. The main guarantees for all categories of investors are the provision of equal rights in the implementation of investment activities, protection of investments, including from nationalization and requisition (with the exception of cases provided for by law, and in case of requisition - if there is adequate compensation), granting the right to appeal to the court of actions government agencies, organizations, officials that infringe the rights of investors.

The legislation governing investment activity is characterized by the so-called stabilization (or "grandfather") clause, which protects the investor from changes in legislation during the implementation of an investment project that restrict his rights. Such clauses are available, for example, in the Laws on investment activities in the form of capital investments ( item 2, 3 article 15), on foreign investment in the Russian Federation ( Article 9), on production sharing agreements ( art.17). So, if during the implementation of a priority investment project carried out in the form of capital investments, federal laws and other legal acts are changed, leading to an increase in the total tax burden on the investor's activities or establishing a regime of prohibitions and restrictions on the implementation of capital investments, such laws and legal acts do not are applied to the investor during the payback period of the investment project, but not more than seven years from the date of the start of project financing, provided that the goods imported into the territory of the Russian Federation are used by the investor for their intended purpose for the implementation of the priority investment project.

Persons carrying out investment activities in the Russian Federation shall be liable in accordance with priority international treaties or the legislation of the Russian Federation.

The main source of investment activity of the state is the Development Budget, which is an integral part of the federal budget, formed as part of the capital expenditures of the federal budget and used for lending, investing and guaranteeing investment projects. The amount of funds allocated to the Development Budget is established by the federal law on the federal budget for fiscal year. Spending the funds of the Development Budget essentially determines the ways of direct participation of the state in investment activities:

lending to investment projects selected at competitions, secured by the investor's own funds and other sources of financial resources in addition to budgetary funds;

direct investments in the property of commercial organizations implementing investment projects, with a corresponding increase in the state's share in the authorized capital of these organizations;

providing investors with state guarantees in the form of a guarantee of the Government of the Russian Federation against borrowed funds for the implementation of investment projects *(766) .

The use of funds from the Development Budget to finance investment projects is carried out exclusively on a competitive basis on the terms of repayment, payment and urgency. State guarantees are also provided on a competitive basis. The conditions for winning the competition can be:

higher (relative to other investment projects) level of return in federal budget, calculated as an indicator of budgetary efficiency, determined by the ratio of the sum of the discounted value of tax revenues and mandatory payments to the amount of the state guarantee (clause 8 of the Procedure for granting state guarantees);

diversification of the risk of the state with private capital, expressed in the presence of private co-investors, creditors, as well as the presence of the investor's own funds not covered by the state guarantee.

Thus, at the legislative level, principles are established that contribute to increasing the responsibility of a private investor and the efficiency of using budget funds.

The state, as the bearer of power, can influence investment activity by legally regulating various areas of entrepreneurial activity, including financial, banking, and taxation. A number of novelties in the Tax Code of the Russian Federation directly relate to the implementation of the investment policy of the state.

From January 1, 1999, commercial organizations can take advantage of the investment tax credit, which is a deferral of income tax, as well as regional and local taxes for a period of one to five years, followed by a phased payment of the loan amount and accrued interest ( Article 66 Tax Code of the Russian Federation). Interest for the use of an investment tax credit is set at no less than and no more than refinancing rates TSB RF. The organization's tax payments due to the provision of an investment tax credit can be reduced in each reporting period by no more than 50% of payments for the relevant tax. The loan amount for technical re-equipment can be 30% of the cost of the equipment purchased by the organization.

The basis for the provision of an investment tax credit may be, in particular, the organization's research and development work or technical re-equipment own production; implementation of implementation or innovation activities, including the creation of new or improvement of applied technologies, the creation of new types of raw materials and materials.

The decision to grant an investment tax credit for income tax in the part that goes to the federal budget is made by the federal executive authorities; in the part that goes to the budget of a constituent entity of the Russian Federation - the financial bodies of this state entity; in the part that goes to the municipality - local governments. The decision taken is formalized by an investment tax credit agreement concluded between the taxpayer and the authorized body.

Problems of economics and legal practice

9.6. FOREIGN INVESTOR AS A PARTICIPANT OF INTERNATIONAL INVESTMENT RELATIONS

Nikitina Anna Alexandrovna, Ph.D. legal Sciences, Associate Professor of the Department civil law Place of employment: Rostov State University of Economics (RINH)

[email protected]

Rakityansky Roman A., Master of the Department of Civil Law

Place of study: Rostov State University of Economics (RINH)

[email protected]

Annotation: the authors carried out detailed analysis legal concept foreign investor. It is concluded that in order to determine who a foreign investor is, it is necessary to determine his nationality and the degree of his control by third parties. Despite the fact that an unambiguous definition of a foreign investor cannot be given due to the variety of features inherent in this category of persons, there are some common features that allow answering the question whether this person foreign investor.

Key words: foreign investor, international investment, theory of control, subjects of international investment relations, bilateral investment regulation.

FOREIGN INVESTOR AS PARTICIPANT OF THE INTERNATIONAL INVESTMENT RELATIONSHIPS

Nikitina Anna A., PhD in law, Assistant Professor, Department of civil process Work place: Rostov State University of Economics (RSUE)

[email protected] en

Rakityanskiy Roman. A., master

Study place: Rostov State University of Economics (RSUE)

[email protected]

Abstract: the author carries out a detailed analysis of the legal term the foreign investor. It is concluded that to determine who a foreign investor is, it is necessary to define its nationality and degree of its control over third parties. Despite that, the fact that an unambiguous definition of a foreign investor can"t be given due to the variety of features inherent in this category of persons - there are some general signs allowing to answer the question - whether this person is a foreign investor.

Keywords: foreign investor, international investments, theory of control, subjects of the international investment relations, bilateral regulation of investments.

In any legal relationship, there are subjects of these relations - subjects of law. Subjects of law are usually understood as persons endowed with legal capacity - individuals and legal entities. Subjects of law always act as persons with specific rights and obligations provided for by law. Each individual state, as a sovereign, itself outlines the circle of subjects of legal relations, as well as their content. For example, the Law of the RSFSR dated June 26, 1991 No. 1488-1 “On investment activity in the RSFSR” indicated that investors who invest their own or borrowed money into the economy. The form of investment was designated as "investment", and investors had to ensure its intended use. Today in the Russian Federation, an investor is understood as a person who may be a foreign business entity who has decided to invest a certain type in the territory of the Russian Federation (or a specific entity in its territory).

A foreign investor is the main subject of interstate investment relations. An investor is a person who invests capital in the territory of the recipient state of investments (hereinafter referred to as the recipient state). Circumstances Concerning Determining a Circle

persons who can be recognized as foreign investors are extremely important and are of particular practical importance in the issue of legal regulation of foreign investment. These conditions are expressed in:

1. Opportunities to carry out entrepreneurial activities in the territory of the recipient state;

2. Providing a foreign investor with the rights and benefits that are provided for by national legislation, as well as international treaties. An example can be a comparison of national and foreign investors, in terms of the possibility of having the right to apply to international arbitration in the event of a dispute between the investor and the recipient state - in some bilateral agreements on the promotion and protection of investments, this right is reserved only for a foreign investor.

3. Establishment by international treaties and national legislation of exemptions of a restrictive nature from the general regime of activities of a foreign investor.

At the moment, the Russian Federation is a party to a large number of agreements on the promotion and mutual protection of investments. These agreements are most often in the form of bilateral agreements (hereinafter referred to as bilateral investment agreements). Agreement Data Analysis

Nikitina A. A., Rakityansky R. A.

FOREIGN INVESTOR AS A PARTICIPANT OF INTERNATIONAL INVESTMENT RELATIONS

allows you to come to the conclusion about exactly which persons are meant by the term "investor":

1. Legal entities that are created or established in accordance with the legislation of the state party to the agreement.

A number of bilateral investment agreements contain the principle of location on the territory of one of the contracting parties.

2. Individuals - citizens of states that are them in accordance with the laws and regulations of the state party to the contract. Thus, a common feature for recognizing an individual as a foreign investor will be the feature of citizenship in a state party to a bilateral investment agreement. In some cases, along with citizens, a foreign investor may be a person permanently residing in the territory of such a state.

Of particular interest is the definition of a foreign investor given in investment agreements to which the United States of America (hereinafter referred to as the USA) is a party. A company that operates in the territory of one of the parties to a bilateral investment agreement is any company or state enterprise that is legally established in accordance with the laws of the state party to the agreement, with or without the purpose of making profit and regardless of the form of ownership (private or government). This definition is interesting in that in addition to the two features mentioned above (defining a foreign investor), it highlights two more:

1. The purpose of creating a company is to make a profit or not;

2. Allocation of an element of control - regardless of the form of ownership - private or state (and also regardless of the state or private volume of shares in the capital of the company) - such a person will be a foreign investor.

A number of bilateral investment agreements contain various control criteria. For example, if we turn to the bilateral investment agreement between the Russian Federation and the Republic of the Philippines, then it fixes interesting position. According to this document, foreign investors (in relation to the Philippines) are companies (organizations) created not in the field of Philippine legislation, but which are actually controlled by its citizens or companies created under the laws of the Philippines.

If we talk in general about the approach to the definition of "foreign investor", then in the scientific literature an approach based on the theory of incorporation has been developed - i.e. on the theory of determining the personal status and nationality of a legal entity. The Russian Federation, when concluding bilateral investment agreements, also uses this criterion.

The authors consider it necessary to give the following definition of an investor - it is a foreign individual or legal entity, or another subject of investment legal relations (the state and other public authorities, an international organization) that invests in the territory of the recipient state. An important element, however,

is the fact that the investor must be a foreign person.

Determining the nationality of a foreign investor is a problem primarily because, under conditions international activities companies and organizations most often have formal registration in the jurisdiction of one state (most often with preferential taxation) - but are actually controlled by citizens (or companies) of a third state (or even citizens of the recipient state). Shell companies - this is the name given to companies in investment law, which often have practically no property, do not engage in business activities at the place of registration, but only own securities or other assets of a particular company (companies).

In our opinion, in connection with the foregoing, the practice of applying the control theory seems to be the most problematic. The control criterion is widely known in international contractual practice. An example of this criterion is the “Partnership and Cooperation Agreement establishing a partnership between the Russian Federation, on the one hand, and the European Communities and their state members, on the other hand”, namely: “A company, for example, is considered to be “controlled” by another company, and thus, subsidiary that other company if:

This other company owns, directly or indirectly, a majority of the votes;

This other company has the right to appoint or remove a majority of the composition of the administrative body, management body or supervisory body, and at the same time is the owner of a share or member of the subsidiary.

The listed criteria cannot, however, be considered exhaustive. There are many circumstances and factors on which the resolution of the issue of control depends in each particular case. The criterion of control is often used in the interests of national economic policy to regulate the balance of interests in the economy. For example, in the already mentioned bilateral investment agreement between the Russian Federation and the United States, the criterion of control is used in order to “narrow down” the scope of this agreement: “the host state has the right to refuse to provide benefits to a company of another Contracting Party under this agreement in two cases:

1. If such a company is controlled by nationals of another third state and does not conduct significant business activities in the territory of the other Contracting Party;

2. If such a company is controlled by nationals of a third state with which the host state does not maintain normal economic relations.”

The content of the bilateral agreement between the Russian Federation and the State of Kuwait defines investments directly or indirectly controlled by investors. Indirectly controlled investments, within the meaning of this agreement, should be understood as "investments that are made by investors of one Contracting Party in the territory of another Contracting Party, through the mediation of a third state."

National legislation on foreign investment in last years also became increasingly influenced by control theory. Investment recipient country

Problems of economics and legal practice

establishes new norms of legal regulation that restrict common mode activities of foreign investors on its territory within the legal framework. An example is the Federal Law of the Russian Federation “On the procedure for making foreign investments in business entities of strategic importance for ensuring the defense of the country and the security of the state”. [ nine ]

This law established restrictive exemptions for foreign investors. In particular, the law established that “transactions and other actions entailing the establishment of control by a foreign investor over economic companies of strategic importance ... are allowed if there is a decision on prior approval of such actions. with the federal executive body authorized to perform the functions of monitoring the implementation of investments in the Russian Federation.

The above law imposes restrictions on any transactions, the result of which will be the establishment of control by a foreign investor over business entities that are of strategic importance for ensuring the country's defense. The Federal Law “On the Procedure for Making Foreign Investments in Business Companies of Strategic Importance for Ensuring the Defense of the Country and the Security of the State” introduces 46 types of business activities that are of strategic importance for the security of the state. The control is as follows:

1. A foreign investor has the opportunity through third parties to influence (or even determine) the decisions that are made by the company;

2. A foreign investor has the opportunity to conclude an agreement with the company, according to which he will perform the functions of a manager in relation to him;

3. A foreign investor may own 10% (or more) of the total number of voting shares authorized capital a company that uses subsoil plots of federal land and is of strategic importance;

4. A foreign investor has the right to appoint a sole body and (or) 10% or more of the collegial executive body of the company.

The duality of the theory of control lies in the fact that at the current level of interstate development and interaction, each state has one or another set of properties that can be called a catalyst for the investment activity of foreign investors on the territory of such states. At the same time, as already noted, an increasing number of states are following the path of establishing restrictive exemptions. The main inflow of capital is always directed to industries where there is the greatest return on investments made by the investor. And it is clear that investors are always focused on investing in such industries. And the state in this case should answer the question: to what extent to allow a foreign investor in this sector of the economy, and where it is necessary to subject this activity to additional regulation and restriction. It should also be taken into account that investments are always influenced by a huge number of factors: the availability of natural resources, the presence of stable ties within the country and with neighboring states, the development of industrial infrastructure - and even the mentality of the citizens of such a state.

Summing up, it should be said that a foreign investor, acting as a fundamental element in international investment relations, is determined by a set of features: conditions and criteria that apply to him. These conditions and criteria are imposed on the investor not only by the recipient state, but also by the state of which he is a citizen (or whose law determines his personal law). The set of criteria in each state is not the same. In addition, "differences in legal regulation different areas economic activity in the countries-recipients of investments, where the share of participation foreign capital limited to what is being carried out in that State economic policy, does not allow us to formulate such a definition that would meet the requirements of completeness, sufficiency, indisputability and completeness.

Summing up, it should be noted that the range of possible and used definitions of an investor is very wide. But, despite this, there are common signs that can be distinguished, and, based on them, to determine who is in front of us - a foreign investor or another person:

1. An individual must have a sign of citizenship of a country other than the state of the recipient of investments;

2. A legal entity must have the sign of an institution (creation) in accordance with the law foreign country.

The article was checked by the Anti-Plagiarism program. Originality 92.39%.

Bibliography:

1. Alekseev S.S. General theory of law. M.: Publishing house BEK, 2004. - 314 p.

2. Agreement between the Government of the Russian Federation and the Government of the Republic of Indonesia on the encouragement and mutual protection of investments (concluded in Jakarta on September 6, 2007) // ATP Consultant Plus.

3. Agreement between the Government of the USSR and the Government of Canada on the encouragement and mutual protection of investments (signed in Moscow on November 20, 1989) // ATP Consultant Plus.

4. Agreement between the Government of the USSR and the Government of Canada on the encouragement and mutual protection of investments (concluded in Moscow on November 20, 1989) // ATP Consultant Plus.

5. Agreement between the Government of the Russian Federation and the Government of the Republic of the Philippines on the encouragement and mutual protection of investments (concluded in Moscow on September 12, 1997)// ATP Consultant Plus.

6. Partnership and Cooperation Agreement establishing a partnership between the Russian Federation, on the one hand, and the European Communities and their Member States, on the other hand (concluded in Corfu on April 24, 1994) // ATP Consultant Plus.

7. Agreement between the Government of the Russian Federation and the Government of the United States of America on the promotion of capital investments (concluded in Washington on 03.04.1992)// ATP Consultant Plus.

8. Agreement between the Russian Federation and the State of Kuwait on the avoidance of double taxation and the prevention of tax evasion with respect to taxes on income and capital (concluded in Moscow on February 9, 1999) // ATP Consultant Plus.

9. Federal Law “On the Procedure for Making Foreign Investments in Business Companies of Strategic Importance for Ensuring the Defense of the Country and Security of the State” dated April 29, 2008 N 57-FZ (as amended on July 18, 2017) // ATP Consultant Plus.

10. Federal Law “On the Procedure for Making Foreign Investments in Business Companies of Strategic Importance for Ensuring the Defense of the Country and Security of the State” dated April 29, 2008 N 57-FZ (as amended on July 18, 2017) // ATP Consultant Plus.

11. Tadevosyan G.G. The concept of "Foreign investor". Actual problems Russian law: FGOOUVO Moscow State Law University named after O.E. Kutafin", 2009. - S. 504-511.

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1. The state as a subject of investment activity

2. comparison table(diagram) - Production Sharing Agreements as a Mechanism for Attracting Investments

1. The state as a subject of investment activity

Federal Law No. 39-FZ of February 25, 1999 (as amended on December 28, 2013) “On Investment Activities in the Russian Federation Carried out in the Form of Capital Investments” defines investment activities as “investment and implementation of practical actions for the purpose of making a profit and (or ) to achieve another beneficial effect. At the same time, investments are “cash, securities, other property, including property rights, other rights having a monetary value, invested in objects of entrepreneurial and (or) other activities in order to make a profit and (or) achieve another beneficial effect” .

The state as a participant in investment activity, acting as an investor, an equal subject of civil law relations in investment activity, simultaneously exercises supremacy within the state territory and organizes its legislative, executive and judicial power by adopting legal regulations. Such instructions are adopted by state authorities within their competence and are provided with coercive measures.

At the same time, the state also acts as the owner of the property. Management of state property is an administrative, power activity, which can be conditionally considered a shell. Its content can be civil law relations, as if included inside a cocoon. state regulation, since administrative activity is a conductor of state decrees.

The organization of state property management is a complex set of actions of state bodies. It includes: definition public policy in the field of state property; education institutional framework management (establishment of executive authorities and empowerment with their competence); establishment of entities exercising direct ownership of state property (it is necessary to determine the types of entities, establish their legal status, carry out accounting and registration); accounting of objects of state property (inventory, classification of objects, registration in registers of objects and transactions with them); distribution of objects of state property between subjects; implementation direct control in various forms (privatization, delimitation of state property, nationalization, civil transactions, management of blocks of shares, bankruptcy, etc.). Such an approach to the concept of state property management is wider than the traditional civilistic approach and allows us to more fully characterize the public law elements that are of particular importance here.

Currently, the Russian Federation pays special attention to improving budget process in general and in the areas of economic activity in particular. Among them, issues related to the improvement of the mechanism for financing investments, the development of effective methods for minimizing budget spending in this area of economic activity and receiving from the investment public funds in the implementation of investment activities of the maximum socio-economic effect for the country.

main source public investment are the funds of the corresponding budget. Expenses for financing budget investments are provided for by the budget, subject to the inclusion of such investments in a federal or regional target program or in accordance with decisions of authorities or local governments. The provision of budget investments to legal entities that are not state or municipal enterprises entails the emergence of the right of state or municipal ownership of an equivalent part of the authorized (share) capital and property of these legal entities. In this case, budget investments are included in the draft budget only if there is a feasibility study for the investment project, design and estimate documentation, a plan for the transfer of land and structures, as well as if there is a draft agreement between the relevant public authority or local government and a legal entity. The absence of such agreements serves as a basis for blocking those provided for in the relevant budget investments expenses (Article 80 of the RF BC). The objects of industrial and non-industrial purposes created with the attraction of budgetary funds in the equivalent part are transferred to the management of the relevant state or municipal property management bodies.

Acting as an owner, the state must solve the problem of effective management of its property, which in turn implies the existence of investment relations in which it acts as an investor. Often the state also acts as a recipient of investments. It also remains an open question to determine the legal grounds for the transfer of funds from the state-investor in the implementation of investment activities.

In the context of this issue, it is necessary to establish a definition of the concept of management in relation to the state's own (in the sense of its own) property. As you know, it is not used in the Civil Code of the Russian Federation at all. It appears only when there is no direct interaction between the owner and the property, the subject and the object of management. There are two varieties of it - management of the property of the owner and management of the activities of a legal entity.

When managing property, the investor state is removed (physically and legally) from its property, does not exercise a triad of powers, leaving it to another person, i.e. there are two subjects connected by relations about the object of ownership. Accordingly, the managing subject can be asked for the "efficiency" of management. When the investor and the user (the person exercising the right of ownership) coincide, the question of the effectiveness of management does not arise, remaining an internal affair of the owner. In the management of the property of the state-owner there are signs of public (state) management.

When managing the activities of a legal entity, there are similarities with public administration:

their activities are regulated by the regulation on the governing body and the norms of civil law;

the construction of the management bodies of a legal entity corresponds to the hierarchy;

management bodies of a legal entity have power competence

For cases of misuse of powers by the management bodies of a legal entity, a mechanism of control and responsibility is provided ( audit committee, annual reports, early dismissal of the director<#"justify">Material resources are administered by the Federal Agency for Federal Property Management. In accordance with Decree of the Government of the Russian Federation of April 8, 2004 No. 200 “Issues of the Federal Agency for Federal Property Management”, the main functions of the agency within the established powers are the exercise of the powers of the state as an owner within the limits and in the manner determined by federal legislation in relation to the property of federal state unitary enterprises and state institutions, shares (stakes) of joint-stock (economic) companies and property constituting the treasury of the Russian Federation, as well as the authority to withdraw from institutions and state-owned enterprises excess, unused or not used for the intended purpose of the federal real estate transfer of federal property to individuals and legal entities, privatization (alienation) of federal property. Also, this body carries out accounting of federal property and maintains its register.

According to Art. 124, 125 of the Civil Code of the Russian Federation, the Russian Federation and the constituent entities of the Russian Federation, represented by state authorities, act in civil relations on an equal footing with citizens and legal entities. In accordance with Art. 71-73 of the Constitution of the Russian Federation at the federal level, issues of managing federal property are resolved, and the management of state property of a constituent entity of the Russian Federation is the subject of the jurisdiction of a constituent entity of the Russian Federation.

Municipal property is a separate form of ownership that exists in parallel with the state. Accordingly, the right of municipal property should be considered as an independent property right. Consequently, investment relations with the participation of investors - representatives of local governments, by their nature and legal nature, are on a par with state investors.

They are brought together by the fact that through the public authorities both of these rights are designed to ensure public, not private interests. But there are also significant differences between them. If the subjects of state property rights are the state and public entities as public authorities separated from civil society, then the subjects of municipal property are municipalities- the population living in the territory of these settlements and entities, endowed with the right to local self-government and exercising the functions of public authority through the system of local self-government bodies elected by them. As stated in Art. 130 of the Constitution of the Russian Federation, local self-government ensures the possession, use and disposal of municipal property, i.e. municipal property, and manage municipal property in accordance with Art. 132 of the Constitution of the Russian Federation local governments.

In order for the state to participate as an investor, it must have independent legal personality. After all, the state, by virtue of paragraph 3 of Art. 126 of the Civil Code of the Russian Federation either is not liable at all for the obligations of its legal entities, or bears only subsidiary liability for them ( budget institutions or state enterprises). On the other hand, these legal entities themselves are not liable with their property for the debts of the public legal entity that created them (clause 2, article 126 of the Civil Code of the Russian Federation).

This is determined depending on in whose interests - a public legal entity or its legal entity (an institution financed by it) - this or that investment legal relationship arose and, accordingly, which property - directly state or other property of this legal entity - is included the result of investment activity (money received, things, results of work or services, rights and obligations).

In accordance with civil law, the property of a legal entity, which belongs to it on an independent property right, must serve to satisfy the claims of creditors for obligations arising from the said entrepreneurial activity. However, a serious reduction in liability under the rules of the RF BC poses a threat to the property interests of investors for whom budgetary institutions acted as the recipient of their investments.

The lack of budgetary funds becomes an unconditional basis for the cancellation of any obligations of the state, although in civil law the lack of the necessary funds from the debtor has never been and could not become the basis for releasing him from liability (clause 3 of article 401 of the Civil Code of the Russian Federation). This rule, which is self-evident for an ordinary participant in property turnover, is, in fact, paralyzed, and the federal state, using the legislative possibilities of public authority, again placed itself in a privileged position, violating the principle of equality in relation to other participants in civil turnover (paragraph 1 of article 124 of the Civil Code RF).

The participation of the state in investment legal relations is connected with the need to implement the public tasks facing it, and this cannot but affect its civil legal capacity. This allows us to speak of the state as a special subject of law with special legal capacity, determined by the norms of both private and public law. At present, the question of the correlation of these norms and their application in practice is of great importance. The state, being a participant in private law and public law relations, very often finds itself in a position where, on the one hand, it must comply with the public interests behind which society as a whole stands, and on the other hand, obey the rules of civil law, reflecting the interests of private person in a particular case, which often results in a conflict of said interests. Therefore, we agree with the opinion of O.N. Aldoshin that the state, unlike other subjects of law, independently, through the relevant laws, determines the scope of its civil legal capacity and its property status.

2. Comparative table (scheme) - Production sharing agreements as a mechanism for attracting investments

Production sharing agreements are a form of organization of investment activities. The term "production sharing agreements" first appeared in Russian legislation in the Law of the Russian Federation dated February 21, 1992 No. 2395-1 "On Subsoil". With the adoption of Decree of the President of the Russian Federation of December 24, 1993 No. 2285 "Issues of Production Sharing Agreements in the Use of Subsoil", a specific Russian movement PSA. It is based on the so-called Indonesian model with the addition of a fee for the right to use subsoil.

In accordance with the Federal Law "On Production Sharing Agreements" dated December 30, 1995 No. No. 225-FZ5 Art. 4 of the Federal Law, a production sharing agreement is an agreement according to which the Russian Federation provides a business entity (hereinafter referred to as the investor) on a reimbursable basis and for a certain period of time, exclusive rights to prospecting, exploration, and extraction of mineral raw materials in the subsoil area specified in the agreement, and for the conduct of related works, and the investor undertakes to carry out the said works at his own expense and at his own risk. Agreement defines everything the necessary conditions related to the use of subsoil, including the conditions and procedure for the division of manufactured products between the parties to the agreement in accordance with the provisions of the law.

Often, production sharing agreements (PSA) are referred to as a group of offset transactions on a production basis, they are considered as a kind of contract contracts, which are an agreement between the state and national and foreign investors. Moreover, it is the state that determines the list of mineral deposits that fall under the PSA, and retains the ownership of these deposits. As a rule, PSAs are based on international cooperation.

The essence of the PSA is that after the signing of this agreement, national investors conduct and finance the exploration, development and operation of deposits (extraction of minerals and other resources), assuming full responsibility for possible risk in exchange for the share specified in the agreement (in different countries world - from 15 to 85%) of the volume of extracted raw materials in these fields. And only in the case of discovery and extraction of minerals, investors receive their share.

The advantages of the economic and legal regime of the PSA are that the terms of the agreement can provide the investor with due legal stability and protection in an unpredictable fiscal, macroeconomic environment and insufficiently effective market institutions.

PSAs greatly simplify the taxation system, clearly defining the procedure for generating income for the investor and the state for many years to come. At the same time, the state does not spend anything on the development of deposits, all the risks for the development of the deposit are borne by the investor, and revenues begin to flow to the treasury immediately after the start of work at the deposit.

Article 9 of the Law "On PSA" also determines that the investor owns compensatory production and the share of "profitable production" established in the agreement. Having received such property rights, property rights and rights to exploit deposits, the investor seeks to convert his investments to obtain the maximum possible profit, and even super profit.

A feature of production sharing agreements and the relevant law is that it is quite difficult to establish their industry affiliation. In relations of this kind, the Russian Federation simultaneously acts as the bearer of supreme sovereignty, i.e. subject of public law, and as the owner of the subsoil, i.e. subject of private law.

At present, the list of deposits that can be developed on the basis of production sharing, enshrined in the relevant federal laws, includes 27 subsoil plots. Of these: 21 - oil deposits, 2 - gas, 3 - gold and 1 - iron ore deposit.

The parties to production sharing agreements may be:

state, i.e. The Russian Federation together with its constituent entity, on whose territory the subsoil plot provided for use is located. On behalf of the Russian Federation, the Government of the Russian Federation acts in the agreement, and on behalf of its subject - its authorized executive body or other executive bodies authorized by them;

investors - citizens of the Russian Federation, foreign citizens, legal entities and associations of legal entities created on the basis of a joint activity agreement and not having the status of a legal entity that invest their own, borrowed or borrowed funds (property and (or) property rights) in prospecting, exploration and production of mineral raw materials and being subsoil users on the terms of an agreement.

If an association of legal entities that does not have the status of a legal entity acts as an investor in the agreement, the participants in such an association have joint and several rights and bear joint and several obligations under the agreement.

The subsoil plot is provided for use by the investor in accordance with the terms of the agreement. At the same time, a license for the use of a subsoil plot, which certifies the right to use the subsoil plot specified in the agreement, is issued to the investor by the executive authority of the relevant subject of the Russian Federation and the federal government state fund subsoil or its territorial subdivision within 30 days from the date of signing the agreement.

Currently, the period for which a subsoil plot can be provided for the use of an investor is determined in accordance with the Regulation approved by the Decree of the Supreme Court of the Russian Federation of July 15, 1992 N 3314-1 "On the Procedure for Enacting the Regulations on the Procedure for Licensing the Use of Subsoil", and cannot exceed 25 years.

An auction is held to determine the person with whom a production sharing agreement can be concluded. It should be noted that the legislation that was in force before the entry into force of the Federal Law of June 6, 2003 N 65-FZ "On the introduction of an addition to part two tax code Russian Federation, introduction of amendments and additions to some other legislative acts of the Russian Federation and the invalidation of certain legislative acts of the Russian Federation”, allowed holding a competition for these purposes.

The validity of the agreement at the initiative of the investor, as well as subject to the fulfillment of the obligations assumed by him, is extended for a period sufficient to complete the economically viable extraction of mineral raw materials and ensure the rational use and protection of subsoil. At the same time, the conditions and procedure for such an extension are determined by the agreement. When extending the validity of the agreement, the license for the use of subsoil is subject to re-issuance for the duration of the agreement by the bodies that issued it.

When the agreements are fulfilled, the manufactured products are subject to division between the state and the investor in accordance with its terms. Article 8 of the PSA Law provides for two ways of sharing production.

With the first method essential conditions agreements are:

determination of the total volume of manufactured products and their value. At the same time, manufactured products are recognized as the amount of mining industry products and quarrying products contained in the actually mined (extracted) from the bowels (waste, losses) of mineral raw materials (rock, liquid and other mixture), the first in quality corresponding to state standard Russian Federation, industry standard, regional standard, international standard, and in the absence of these standards for a particular extracted mineral - the standard of the organization (enterprise), extracted by the investor in the course of work under the agreement and reduced by the number of technological losses within the limits of the standards;

determination of the part of the manufactured products, which is transferred to the ownership of the investor to reimburse his costs for the performance of work under the agreement (hereinafter referred to as compensatory products). At the same time, the maximum level of compensatory production should not exceed 75%, and in the case of production on the continental shelf of the Russian Federation - 90% of the total volume of production. The composition of the costs to be reimbursed to the investor at the expense of compensatory products is determined by the agreement in accordance with the legislation of the Russian Federation;

the division between the state and the investor of profitable products, which is understood as products produced in the implementation of the agreement, minus a part of these products, the cost equivalent of which is used to pay the mineral extraction tax, and compensatory products for the reporting (tax) period;

the transfer by the investor to the state of a part of the manufactured products belonging to him in accordance with the terms of the agreement or its value equivalent;

receipt by the investor of manufactured products belonging to him in accordance with the terms of the agreement.

In the second method, the agreement must provide for the following essential conditions:

determination of the total volume of manufactured products and their value;

conditions for the division between the state and the investor of the manufactured products or the cost equivalent of the manufactured products and for determining the shares of the manufactured products belonging to the state and the investor. The proportions of such a section are determined by the agreement, depending on the geological, economic and cost estimates of the subsoil plot, the technical project, and the indicators of the feasibility study of the agreement. At the same time, the investor's share in manufactured products should not exceed 68%, and the state's share should be at least 32%;

transfer to the state of a part of the manufactured products or its cost equivalent belonging to it in accordance with the terms of the agreement;

receipt by the investor of a part of the manufactured products belonging to him in accordance with the terms of the agreement.

The conclusion of an agreement in accordance with the specified conditions and the procedure for the division of production must be provided for by the terms of the auction.

An agreement may provide for only one method of production sharing. An agreement cannot provide for a transition from one method of production sharing to another, as well as for the replacement of one method of production sharing by another.

The agreement is terminated in the following cases:

after the expiration of the period for which it was concluded;

ahead of schedule by agreement of the parties;

if the provisions of the agreement on the methods of taxation of the investor did not enter into force within one year from the date of signing this agreement;

on other grounds and in the manner provided for by the agreement in accordance with the legislation of the Russian Federation in force on the date of its signing.

Federal Law "On PSA" instead of mandatory payment taxes introduced a system in which the state and a foreign investor enter into an agreement (agreement), where the investor's payments are stipulated for a certain period, and the output is divided between them in a certain proportion. In accordance with Article 13 of the Federal Law “On PSA”, of all taxes, fees and duties, the investor pays only income tax and tax for the right to use subsoil (product sharing for him is essentially a tax benefit). Thus, with the adoption of the Federal Law “On PSA”, the taxation principle has been changed, it is not purely fiscal, but acquires a regulatory role, balancing the interests of the state and the investor in obtaining a rate of return, which is achieved by the production sharing mechanism.

A production sharing agreement is attractive to the state in that, unlike other forms of borrowing or licensing regimes (such as concessions), production sharing does not threaten the country with an increase in debt burden or loss of control over subsoil and raw materials. The sovereign rights of the state to own subsoil and their resources are preserved, since we are talking not about the privatization of the subsoil, but about their lease during certain period. Investments and loans related to the PSA are attracted for commercial basis and thus do not lead to an increase in public debt. At the same time, the investor conducts mineral exploration and other work at his own expense; in case of failure, no one compensates him for the costs. A positive aspect of the PSA is the fact that as a result of the implementation of their provisions, new and hard-to-reach, labor-intensive deposits are developed, employment growth in certain areas is ensured, the infrastructure of these areas is developed, and sales opportunities for domestic products are expanded. For investors, the PSA is attractive because it provides stability and predictability, which are essential for any large investment, although it does not guarantee against commercial risk, in particular, associated with changes in oil prices and demand for it.

The production sharing agreement has the following distinctive features (comparison table):

Indicator ContentParty of legal relationsState/foreign investor companyForm of ownershipState monopoly SubjectUp to 20% of the country's proven reserves, up to 10% of strategic types of minerals. Personnel 80% - Russian citizens. Equipment 70% - Russian-made. Capital equipment becomes the property of the state from the moment of its acquisition or gradually as it is depreciated. Investor's share of the manufactured products to reimburse its costs Up to 75%, in case of production on the continental shelf - up to 90% of the total volume of manufactured products TaxpayerInvestorObject of taxationProfit received by the taxpayer in connection with the implementation of the agreement.ProfitIncome from the implementation of the agreement, reduced by the amount of expenses.IncomeThe cost of profitable products owned by the investor in accordance with the terms of the agreement, as well as non-operating income.Value of profitable productsProduct of the volume of profitable products and the price of products manufactured established by the agreement, with the exception of the price of products (price of oil), determined in accordance with the Tax Code. Expenses Justified and documented confirmed expenses incurred (incurred) by the taxpayer in fulfilling the agreement. Types of expenses - expenses reimbursed at the expense of compensatory products (reimbursable expenses); - expenses that reduce tax base income tax.Taxes reimbursable to the investorVAT, unified social tax, user fees natural resources, environmental impact fee, user fee water bodies, government duty, customs duties, land tax and excises (excluding corporate income tax and mineral extraction tax). Additional tax benefits property of organizations in relation to fixed assets, intangible assets, reserves and costs that are on its balance sheet and are used exclusively for the implementation of the activities provided for by the agreement; - transport tax in terms of his Vehicle(with the exception of cars) used solely for the purposes of the agreement; customs duty on goods imported into the Russian customs territory to perform work under the agreement provided for by the work programs and cost estimates approved in accordance with the procedure established by the agreement, as well as in terms of products manufactured in accordance with the terms of the agreement and exported from the Russian customs territory.

a civil law transaction, not an international treaty;

payment of rent payments and certain taxes, and not the establishment of a preferential tax regime;

granting the right to use subsoil on a fixed-term basis for lease, rather than their privatization;

attraction of investments on the terms of project financing, and not obtaining loans under state guarantees;

the use of national treatment for any investor, rather than benefits for foreign companies.

As a result, the production sharing agreement allows:

It is most rational to use foreign investments in the development of deposits with large but hard-to-recover reserves, especially in areas with a harsh climate, where additional exploration of reserves is associated with a high risk, and the development of these deposits requires huge investments. The PSA legislation within the framework of the current investment and licensing system makes it possible to create a universal tax regime, the mechanism of which would take into account the specifics of projects located both in different natural conditions and at different stages of development. Moreover, of all taxes, fees and duties, an investor operating on the basis of a PSA pays only income tax and tax on the right to use subsoil. That is why the division of production for the investor is a tax benefit.

To create conditions in our country for additional tax revenues, attracting investments, creating new jobs and receiving new orders.

Get a multiplier effect and a synergistic effect.

Involve additional resources of mineral raw materials into economic circulation.

Rationalize the tax regime, increase the growth of budget revenues by 2.5-3.5 times different groups deposits.

The conclusion of a PSA in Russia is associated with a number of problems:

The inclusion of specific fields in the list of objects allowed for development under the terms of the PSA is largely a political issue;

The procedure for obtaining permission to develop deposits under the terms of the PSA is extremely bureaucratic and complicated, which deters investors and delays the receipt of tax revenues by the state.

Political instability in Russia, a large number of taxes and unclear conditions for access to the export pipeline; informational secrecy of many specific SRPs; the possibility of contradictions between federal and regional authorities in the implementation of specific projects on the terms of the PSA (which is why PSA issues should take into account the interests of both federal and regional authorities).

. A task

state property management investment

1.LLC "N" has concluded a construction investment agreement, i.е. an agreement mediating the investment, i.e. an agreement between the subjects of investment activities aimed at establishing mutual rights and obligations in the process of implementing an investment project.

OOO "N" is a subject of investment activity (legal entity) that does not pursue the goal of satisfying its consumer needs. Such a conclusion follows from economic essence investments (refusal to use income for current consumption in favor of capital formation and the expected expansion of consumption in the future).

LLC "N" is a legal entity that finances construction at its own expense, i.e. in relation to LLC IK Zh, he is an investor.

According to Art. 1041 of the Civil Code of the Russian Federation, an agreement on equity participation in construction is equated to a simple partnership agreement.

On December 30, 2004, a law was adopted that supplemented Art. 130 of the Civil Code of the Russian Federation<#"justify">According to paragraph 3. article 7. Law of the RSFSR "On investment activity in the RSFSR" Incomplete objects of investment activity are shared ownership subjects of the investment process until the moment of acceptance and payment by the investor (customer) of the work and services performed. If the investor (customer) refuses to further invest in the project, he is obliged to compensate the costs of its other participants, unless otherwise provided by the agreement (contract).

Thus, the real estate regime should apply to any building in progress that meets the criteria of Art. 130 of the Civil Code of the Russian Federation, regardless of when its construction was started or stopped and when transactions were made regarding this property. Since the entry into force of the 1994 Civil Code of the Russian Federation, construction in progress must be subject to all requirements for state registration of rights to real estate established by this Code.

Consequently, the plaintiff has a right in rem, that is, the right of ownership to the premises named by him.

The Moscow Arbitration Court ruled that the share of the sub-investor, LLC N (the plaintiff) in the specified object cannot be determined, i.e. the right of ownership (in a share) to the built-in non-residential premises for the plaintiff is not recognized.

According to Art. 1041 of the Civil Code of the Russian Federation of January 26, 1996 No. 14-FZ - Part 2

Under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law.

The parties to a simple partnership agreement concluded for the implementation of entrepreneurial activities can only individual entrepreneurs and/or commercial organizations.

3. Features of a simple partnership agreement concluded for the implementation of joint investment activities (investment partnerships) are established by the Federal Law<#"justify">According to paragraph 2 of Article 4 of the Federal Law of the Russian Federation dated November 28, 2011 No. 335-FZ "On Investment Partnership" Each partner has the right to:

3) to receive his share in the common property of the partners in the manner prescribed by the investment partnership agreement, after the expiration of the investment partnership agreement or upon reaching the goal set by it;

According to Article 7 of the Federal Law of the Russian Federation dated November 28, 2011 No. 335-FZ “On Investment Partnership”

The size of the share of each of the comrades in the common property of the comrades is determined in proportion to the value of their contributions to the common cause.

During the term of the investment partnership agreement, the division of the common property of partners and the allocation of a share in kind from it at the request of a partner are not allowed, unless otherwise provided by the investment partnership agreement.

According to paragraph 3. article 7. Law of the RSFSR "On investment activity in the RSFSR" legal document regulating production, economic and other relations between the subjects of investment activity is an agreement (contract) between them.

The conclusion of agreements (contracts), the choice of partners, the definition of obligations, any other conditions of economic relations that do not contradict the legislation of the RSFSR and the republics within the RSFSR, is the exclusive competence of the subjects of investment activity. In the implementation of contractual relations between them, interference of state bodies and officials that goes beyond their competence is not allowed.

Clause 1 The right of ownership to the created real estate object is registered on the basis of a document of title to the land plot on which this real estate object is located, as well as permission to put the object into operation, if such permission is required in accordance with the legislation of the Russian Federation.

Clause 2 The right of ownership to an object of construction in progress is registered on the basis of title documents for the land plot on which the object of construction in progress is located, and a construction permit, if, in accordance with the legislation of the Russian Federation, such a permit is required for the construction of the object being created.

Art.25.1. State registration of the participation agreement in shared construction is carried out on the basis of an application by the parties to the agreement (developer, participant in shared construction). For state registration of an agreement on participation in shared construction, concluded by the developer with the first participant in shared construction, along with the documents necessary for state registration of an agreement on participation in shared construction in accordance with this Federal Law, the developer shall submit:

1) building permit;

) design declaration;

) a plan of the real estate object to be created, indicating its location and the number of residential and non-residential premises and the planned area of each of these premises;

4) <#"justify">List of used normative acts and special literature

I. Regulations

Civil Code of the Russian Federation (Part Two) dated January 26, 1996 No. 14-FZ. Chapter 55 "Simple partnership".

Federal Law of December 30, 1995 No. 225-FZ “On Production Sharing Agreements” (with subsequent amendments) // Collection of Legislation of the Russian Federation. - 1996. - No. 1. - Art. eighteen.

Federal Law No. 160-FZ of July 9, 1999 (as amended on April 29, 2008) “On Foreign Investments in the Russian Federation” // Collection of Legislation of the Russian Federation. -1999. - No. 28. - art. 3493.

Federal Law of July 21, 2005 No. 115-FZ (as amended on June 30, 2008) “On Concession Agreements” // “Collected Legislation of the Russian Federation”. - 2005. - No. 30 (part II). - art. 3126.

Federal Law of November 28, 2011 No. 335-FZ “On Investment Partnerships” // SZ RF. - 2011. - No. 49 (part 1). - Art. 7013.

II. Special literature

6. Gushchin, V.V., Ovchinnikov, A.A. Investment law: textbook / V.V. Gushchin, A.A. Ovchinnikov. - 2nd ed., revised. and additional - M.: Eksmo, 2009. - 624 p. - ISBN: 978-5-699-29654-5.

Doronina, N.G., Semilyutina, N.G. International private law and investments: scientific-practical. research - M.: Contract, Wolters Kluver, 2011. - 272 p.

Lisitsa, V.N. Types of investment legal relations // Civilist. - 2011. - No. 4. - S. 111 - 115.

Lityagin, N.N. Organizational and legal forms of investment activity. Investment process // Legal issues of construction. - 2011. - No. 2. - S. 36 - 38.

Moshkina, L.N. Agreement about equity participation in investing in construction and a simple partnership agreement // Lawyer. - 2012. - No. 2. - S. 32.

Nemchenko, S.B. To the question of the place of the production sharing agreement in the system of law of obligations // Lawyer. - 2011. - No. 5. - S. 26 - 29.