The problem of the legal status of state bodies: the history of civil thought

Dondokov Zhargal Darmaevich Postgraduate student of the Department of Civil Law of the Ural State Law University named after V.F. Yakovlev 620137, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21 dondokovzhargal@mail.ru Other publications by this author

Since its formation as the main form of organization of public administration, the State has simultaneously been the largest owner of material resources. Moreover, such a sign of the state does not depend much on its specific historical types, since every state needs to participate in civil turnover to ensure not only socially significant needs, but also its own existence. Such participation of the State in civil turnover occurs through the system of its bodies, the civil status of which remains very uncertain.

The relevance of the topic under consideration lies not only in the practical component of the participation of state bodies in economic turnover, but also in the urgency of a conceptual rethinking of such participation. However, for this it is considered necessary to analyze the history of scientific thought, which provides the researcher with invaluable theoretical material reflecting the continuity of scientific traditions and the historicity of ways and forms of state participation in private law relations.

Before starting, it is necessary to note two important comments that will allow us to define the boundaries of our research. Firstly, the concept of a public authority is broader than the concept of a public authority limited to three branches of government, the use of which would unreasonably narrow the subject of this study. Secondly, our proposed periodization of the history of research on a given topic is very conditional, since the creative life of a particular scientist is not limited to the time frame of individual epochs, although the latter, of course, largely determine it. In addition, this technique allows us to identify the correlation between the main trends of scientific thought and the objective conditions of the development of law and the state.

Thus, as the main purpose of this study, we will take the disclosure of the main scientific concepts of the participation of state bodies in civil law relations in the history of the development of civil science and their impact on the modern approach to the problem under consideration.   

The period of pre-revolutionary civil law opens with fundamental studies of the classics of civil law. Shershenevich G.F. from the position of the dialectical approach justifies the impossibility of recognizing the state as a subject of private law relations ^{[1, p. 78]}. According to the author, the property side of the state, the treasury, whose representatives are state bodies, takes a direct part in civil turnover, and therefore the latter cannot have legal personality. In addition, if the State is not a subject of civil law, then its organs cannot be a priori.

When speaking in court on behalf of and in the interests of the treasury, G.F. Shershenevich believes that compulsory enforcement of a civil obligation cannot be applied to the state, since its supremacy presupposes a high level of self-responsibility, therefore, it fulfills its obligations voluntarily.

Almost at the same time, scientific research in this direction in the prism of the relationship between private and public law was conducted by I.A. Pokrovsky, professor of Roman law, which he outlined in his main work "The Main problems of Civil Law" (1917) ^{[2, pp. 38-39]}.

The opposite approach to the role of the state in civil relations is expressed by S.A. Muromtsev. Thus, the author considers public education as an independent subject of civil law, which is on a par with private individuals and their associations ^{[3, p. 309]}. The state, according to the author, consists of the interests of individuals, the totality of which forms a single national interest and is expressed in the actions of state bodies. However, the latter do not have legal personality, but are the same as in the arguments of G.F. Shershenevich, representatives of the state. Muromtsev S.A. also adds that with the development of public consciousness, the separation of the organ and the state becomes more and more visible. Further, unfortunately, the scientist's thoughts remain unsaid, although they lead to open questions about such a division.

The main idea of D.I. Meyer regarding the participation of the state in civil legal relations through its organs is expressed in his following statement: "All offices and all officials act in the name of the state, serve as its organs, and therefore they cannot be recognized as independent legal entities, and their personality is reduced to the personality of a vast union – state" ^{[4, pp. 127-128]}. The author substantiates this conclusion not only from the standpoint of analyzing their administrative legal personality, which excludes the separation of state bodies from the state itself, but also from the standpoint of their lack of independent interest.

With the transition from the pre-revolutionary historical period to the Soviet historical period, not only the socio-economic structure of the state, but also the legal views on its legal status are undergoing a radical change.

Thus, S.N. Bratus, generally remaining on the research ground of pre-revolutionary civil scientists, argues that the state acts in civil circulation through its representatives – bodies. However, for example, in foreign trade relations, the state can act directly as a single independent subject of law. Although, as it seems, in the latter case we are talking more about international private legal relations, which found their isolation from the theory of civil law much later ^{[5, p. 238]}. At the same time, State bodies are not independent subjects of law, since they are mechanically part of the entire State.

According to some authors, unlike the pre-revolutionary period in a socialist state, its organs can still act in their own interests and on their own behalf, for example, when disposing of property assigned to them ^{[6, pp. 121-122]}. However, it seems that this feature is justified by two main reasons. The first of them is an extended understanding of the category of public authority. Thus, characteristic of Soviet civil law is the attribution to state bodies not only of management and planning bodies, but also of production units (self-supporting enterprises). The broadest approach to the construction of the category of state body is followed by O.S. Ioffe, who understands by it all socialist organizations, including trusts created by them ^{[7, p. 68]}.

Unfortunately, such a broad approach to the definition of a state body for the purposes of our research has value only as a fixation of the features of the Soviet socialist science of civil law in terms of justifying the participation of state bodies in economic relations. At the same time, it is hardly applicable for its attribution to modern forms of participation of state bodies in civil legal relations. In addition, based on the thoughts of Fleishits E.A. and Landkof S.N., Ioffe O.S. argues that, unlike a legal entity, a state body does not have the purpose of combining capital (property) or combining persons, and therefore it is impossible to identify their legal status. The second reason is the merging of administrative and civil legal personality in the absence of free economic turnover, the crown of which is the formation of economic law.

A.V. Venediktov also adheres to the approach of the impossibility of recognizing the independent participation of a state body in civil law relations ^[8].  

The analysis of the works of Soviet authors shows that the issue of theoretical independence of state bodies does not stand as such, first of all, because ideologically the state is united, and private legal relations are preserved only in individual cases and in a special legal form. However, with the development of the mechanism of separation of state socialist property by justifying the right of operational management and the right of economic management in the late Soviet periods, state bodies, while remaining part of the national mechanism, still acquire a share of independence. In addition, in conditions of preservation of commodity-money relations and the absence of equal and independent participants in such relations, state bodies, including economic enterprises and their associations, which exchange production products among themselves on the basis of the principles of administrative and economic planning, enter into them.

Scientific research on this problem at the present stage of development of the Russian state and law is largely due to objective changes in the economic system. The transition from an administrative command to a market economy predetermined the problem of the inclusion of the state in private law relations on an equal footing with citizens, individual entrepreneurs and legal entities. Moreover, modern civil legislation grants the right to public legal entities to grant the status of a legal entity to the bodies they create.

Sukhanov E.A. writes that the state implements legal capacity through its bodies, which, within their competence, acquire civil rights and carry out legal duties in its interests and on its behalf. At the same time, E.A. Sukhanov defines the civil nature of the state as sui generis - a subject of a special kind, since not all legal norms can be objectively extended to it. All legal consequences of a transaction made by a state body arise directly from the state, from which it can be concluded that the state body is an integral part of the state itself.

An important conclusion drawn by the author, who has formalized all previous research studies in a certain way, is that in practice there is a problem of distinguishing cases when state bodies act on behalf of and in the interests of the state itself and when they exercise civil rights and legal obligations on their own behalf, for example, by issuing bonds ^{[9, p. 290]}. This issue, in turn, has deep conceptual roots regarding the possibility of recognizing an independent interest for a state body. Sukhanov E.A. draws attention to the uncertainty of the status of state bodies: on the one hand, it is part of the state, on the other hand, in some cases they can act on their own behalf and in their own interests ^{[10, p. 98]}. Developing the author's idea, we can note the question we asked above about the possibility of the existence of an independent interest of a state body different from the interest of the whole state.

This approach is consistently stated by M.N. Semyakin, whose analysis of reasoning reveals an interesting applied problem: if transactions made by a state body within the powers presented to it are transactions of the public legal entity itself, then are transactions made outside such powers the same ^{[11, p. 199]}? This warm-up question follows from a more fundamental question about the share of independence of the interest of the state body, which is set out in some part in the textbook by V.A. Belov ^{[12, p. 59]}.

The issue of the participation of state bodies in civil law relations, with rare exceptions, was not the subject of special scientific research. More often, this topic was considered within the framework of state participation in civil law relations. Thus, Golubtsov V.G. in his monograph "The Russian Federation as a subject of civil law", using the formal legal method, asserts the need to endow a state body with the status of a legal entity for the fullest participation in civil turnover: "At the same time, we still share the opinion that public authorities should be independent organizationally-the legal form of a non-profit organization and must act on the basis of the provisions on organizations of this type" ^{[13, p. 104]}. Moreover, Golubtsov V.G. cites a rather controversial statement that a state body is a special organizational and legal form of a non-profit organization, although further the question remains undisclosed whether the author means by such an organizational and legal form an institution or another special status sui generis.  

The scientific and practical value of this work consists in the fact that Golubtsov V.G. considers the problem of the correlation of the public-legal category of competence and the private-legal category of legal capacity. Thus, the author argues that competence, due to its public-legal nature, cannot affect the exercise of civil rights and obligations by a state body, since only the organizational and legal form of the body establishes the limits of its civil-legal participation.

Concluding his arguments, the author comes to a reasonable conclusion about the merging of the interests of the state and its organs, as well as the definition of their unified legal personality. At the same time, Golubtsov V.G. rightly notes that the participation of state bodies in civil turnover is rather an optional feature of such a body ^{[13, p. 105]}.

The participation of state bodies in binding legal relations is conditioned by compliance with special legal mechanisms, which are otherwise called the contract system of procurement of goods, works and services. Tsaturyan E.A. in the monograph "State contract in Russian Civil Law: problems of theory and practice" argues that the state body only exercises rights and obligations on behalf of the state itself, while in legal regulation they use the construction of a legal entity, but by default they are not automatically directly ^{[14, p. 45]}. It seems that this conclusion partly follows from the recognition of a special civil status for the state.

Almost the only study of a special nature within the framework of our chosen topic is the article by Uskov O.Yu. "Problems of civil legal personality of state bodies and local self-government bodies" in 2003. As the author notes, at the level of judicial practice, the concept has been unreasonably adopted, according to which a state body can act on its own behalf even when it is not an independent legal entity. This does not correspond to the essence of the state system, which affects the practical problems of bringing to responsibility, the limits of state responsibility, as well as issues of participation in real and binding legal relations ^{[15, p. 106]}. The author reproduces, at first glance, the obvious conclusion that the state bears direct civil liability for the actions of its body, unless the state body is an independent legal entity - institution.

Yakovlev V.F., Talapina E.V. in their article "Legal entities and subjects of public law: in search of a legal balance" already in their title set the philosophical basis of this problem, which consists in the problem of finding a balance of private and public law. Although, in general, the article is devoted to state bodies that have the status of a legal entity, analyzing the provisions of the legislation, the authors come to the conclusion about the representative nature of the state body. At the same time, an important emphasis that the authors focus on is the question: "Should a public authority necessarily be a legal entity?" ^{[16, p. 126]}. A feature of this work, according to the authors themselves, is an intersectoral legal analysis of the problem. The authors cite the "two-face nature of the state" as a fundamental problem of this kind, which also has applied significance (from antimonopoly regulation to the participation of state bodies in foreign economic transactions). As a proposal for the systematic construction of the participation of the state and its bodies in civil legal relations, the authors put forward the thesis of the need to prioritize the determination of the public-legal nature of the state and its bodies, on the basis of which to build their private-law status.

It seems that the endowment of individual state bodies with the status of a legal entity is not historically conditioned and is a product of modern lawmaking. According to their objective and essential features, from the position of the influence of administrative legal personality on the civil legal personality of such bodies, it can be concluded that the authorities cannot be legal entities, since they cannot have interests different from the interests of the entire state. This construction, I think, was created, first of all, to limit the responsibility of the state for the actions of its bodies while formally maintaining subsidiary responsibility.

The analysis of the historiography of scientific research on the chosen problem demonstrates two closely interrelated trends: on the one hand, in the history of the study of the civil status of state bodies, there is clearly a single position of their recognition as an integral part of public legal education - the state itself, while some characterize these relations as representing interests, others, using a comparative research method, they draw an analogy with the bodies of a legal entity, and on the other hand, the deepening of the problem and the complication of its individual aspects are characteristic of the modern stage of the development of the science of civil law. In other words, there is a tendency towards civil separation of state bodies before scientific and practical research in certain aspects of the problem (the problem of distinguishing the actions of state bodies in their own interest and in the interest of the state itself, the problem of the limits of civil liability, etc.).

The indicated trend, I think, can be explained by correlation with the objective socio-economic conditions of the development of the state at a particular stage of existence, including the above-mentioned features of the state's participation in civil law relations. So, if the pre-revolutionary period of the development of scientific thought is characterized by the consideration of state bodies as representatives of the treasury, which inertially determines the impossibility of their independent participation in civil turnover, then already in the modern period, while preserving the foundations of classical civil science, there is a gradual attempt to complicate the problem, mainly with the reduction of applied issues arising in legal practice.

In conclusion, it should be said that the problem under consideration, the historical analysis of the research of which is designated as the main goal of this work, has its existence exclusively within the framework of the modern development of law and legislation, is not historically conditioned. At the same time, the solution to this problem lies in such historicity, which consists in excluding the possibility of granting state bodies the status of a legal entity.