Public Control over Non-State Pension Funds in the Russian Federation: Problems of Organization and Implementation

Goncharov Vitalii Viktorovich PhD in Law Associate Professor, Dean of the Faculty of Higher Education, Polytechnic Institute (branch), Don State Technical University in Taganrog 347900, Russia, Rostov region, Taganrog, Petrovskaya str., 109a niipgergo2009@mail.ru Other publications by this author

Introduction.

The analysis of the normative consolidation and scientific vision of the system of objects of public control in the Russian Federation is studied in the works of V. V. Grib, ^{[5, pp. 154-160]} O. V. Pishchulin, ^{[13, pp. 108-110]} A.V. Kurochkin, ^{[9, pp. 420-426]} A. A. Karmolitsky, ^{[6, pp. 37-48]} G. N. Komkova and E. V. Berdnikova, ^{[8, pp. 11-19]} V. V. Goncharova, ^{[3, pp. 28-36]} T. N. Mikheeva, ^{[11, pp. 59-66]} as well as a number of other authors. However, most of the works are devoted to research in the field of organization and implementation of public control in relation to public authorities, as well as state and municipal organizations. At the same time, Federal Law No. 212-FZ of 21.07.2014 "On the Fundamentals of Public Control in the Russian Federation" provided for the possibility of conducting public control over the activities, acts and decisions of any legal entities that are endowed by federal laws with the right to exercise certain public powers. In this regard, the study of modern problems and ways of developing public control over various types of legal entities is of particular interest. The most important place among them is occupied by non-state pension funds. This is the reason for the choice of the topic of this scientific research, the purpose of which is not only to identify and formalize the main problems that hinder the processes of organizing and implementing public control over non-state pension funds, but also to develop and justify a system of measures to resolve them. Achieving this goal involves solving a number of scientific tasks, including the following: 1) analysis of the place and role of the institute of public control in the system of legal guarantees for the implementation, protection and protection of the constitutional principles of democracy and public participation in the management of state affairs; 2) study of the place of non-state pension funds in the system of objects of public control; 3) analysis of the main problems that hinder the organization and implementation of public control in relation to activities, acts and solutions of the above-mentioned variety of commercial organizations; 4) development and justification of a system of measures to resolve these problems.

The main text.

The Constitution of the Russian Federation has consolidated the legal status of the multinational people of Russia as the bearer of sovereignty and the only source of power in the country, exercising its powers both directly (for example, through the institutions of free elections and referendums) and indirectly (in particular, through the activities of public authorities). At the same time, the constitutional principles of democracy and the participation of society in the management of state affairs need a system of legal guarantees, the most important of which is the institute of public control, which allows Russian citizens, public associations, as well as other non-governmental non-profit organizations to monitor the activities, acts and decisions of state authorities, local governments, state and municipal organizations, other bodies and organizations exercising certain public powers in accordance with federal laws.

Thus, the most important type of objects of public control are legal entities, either belonging to the category of state and municipal organizations, or exercising certain public powers on the basis of federal laws.

In this regard, it seems necessary to analyze the place and role of non-state pension funds in the system of objects of public control in the Russian Federation.

This type of legal entities is especially relevant for our country for a number of reasons.

Firstly, the current Russian legislation, in particular, Federal Law No. 75-FZ of 07.05.1998 "On Non-State Pension Funds", secured for non-state pension funds the possibility of organizing activities for non-state pension provision, including early non-state pension provision, and also provided the opportunity to exercise certain public powers in the form of mandatory pension insurance in accordance with the procedure provided for by Federal Law No. 167-FZ of 15.12.2001 "On Compulsory Pension Insurance in the Russian Federation". At the same time, the implementation of these powers by non-state pension funds, in turn, requires, according to a number of authors, the creation of a system of legal control over the activities of these funds. ^{[17, pp. 141-144]}

Secondly, non-state pension funds accumulate significant funds of pension reserves. As of September 2021, they amounted to more than 1.5 trillion rubles, annual pension payments exceed 57 billion rubles. The assets of these funds amounted to almost 5 trillion rubles on the above-mentioned date. ^[15] This is significantly less than the assets of the Pension and Social Insurance Fund of the Russian Federation, but hundreds of thousands of citizens of the country are covered by non-state pension funds.

Thirdly, these funds make it possible to organize a more flexible pension provision regime for citizens of the Russian Federation, complementing, according to some authors, the state social security system of the population. ^{[1, pp. 188-191; 2, pp. 31-35]} This reduces the burden on the state pension insurance system and the country's budget.

The possibility of creating non-state pension funds was provided for by Federal Law No. 75-FZ of 07.05.1998 "On Non-State Pension Funds", Federal Law No. 167-FZ of 15.12.2001 "On Compulsory Pension Insurance in the Russian Federation", as well as the Civil Code of the Russian Federation. At the same time, these federal laws, fixing the foundations of the legal status of non-state pension funds, have a significant flaw in terms of determining the organizational and legal form in which non-state pension funds can be created. It is not clear from the text of these federal laws whether non-state pension funds are commercial or non-profit, as well as unitary or corporate organizations.

Currently, non-state pension funds are classified on the basis of parts 1 and 4 of Article 123.17 of the Civil Code of the Russian Federation as a kind of socially useful funds that are unitary non-profit organizations.

According to the Civil Code of the Russian Federation and in accordance with Article 7 of Federal Law No. 7-FZ of 12.01.1996 "On Non-Profit Organizations", non-profit organizations established by citizens and (or) legal entities on the basis of voluntary property contributions and pursuing social, charitable, cultural, educational or other socially useful purposes are recognized as foundations.

However, since 2014 and before incorporation in the Civil Code of the Russian Federation into the system of legal entities in the Russian Federation of such a variety as socially useful funds, non-state pension funds were created, as a rule, in the form of joint-stock companies that are commercial corporate organizations.

In particular, the Central Bank of Russia, taking advantage of the fact that the legislation on non-state pension funds has not fixed the organizational and legal forms in which they can be created in the Russian Federation, in 2014-2018 initiated and coordinated a five-year process of corporatization of non-state pension funds.

In addition, before the start of this process, since 01.01.2014, more than 120 non–state pension funds registered in the form of non–profit organizations were functioning on the market, by the end of the process - December 2018 - there were 52 of them (at the same time, all in the form of joint-stock companies, and 35 of them are entitled to compulsory pension insurance, that is they have the authority to work with pension savings of Russian citizens). ^[12]

Currently, non-state pension funds in the Russian Federation (their register is publicly available on the website of the Central Bank (Bank of Russia) operate in the organizational and legal form of joint-stock companies. In particular, one of the largest non-state pension funds is the joint-stock company "Non-State Pension Fund "Otkritie". ^[14] At the same time, on the basis of Part 2 of Article 50 of Part 4 of Article 66 of the Civil Code of the Russian Federation, joint-stock companies are classified as commercial corporate organizations pursuing profit as their main goal.

Thus, there is a contradiction: the current legislation classifies non-state pension funds as non-profit unitary organizations, but they exist in the form of joint-stock companies that are commercial corporate organizations.

It seems that this contradiction requires resolution: either non-state pension funds should be re-registered with an indication that they are socially useful funds in their organizational and legal form, or amendments should be made to the Civil Code of the Russian Federation, Federal Law No. 7-FZ of 12.01.1996 "On Non-Profit Organizations", indicating that non-state pension funds funds are commercial corporate organizations and can be created in the form of joint-stock companies.

It seems that the organization and implementation of public control over the activities, acts and decisions of non-state pension funds in the Russian Federation are associated with a number of problems, including the following:

Firstly, a significant problem hindering the organization and implementation of public control over the activities of non-state pension funds in Russia is the lack of consolidation of this institution of civil society in the Constitution of the Russian Federation, which significantly reduces the role and importance of public control both in the eyes of citizens of the country and the heads of legal entities, especially organizations that do not belong to the state or municipal. This circumstance, as we noted in previously published works, ^{[4, pp. 72-88]} does not favorably distinguish the institute of public control from the institute of people's control of power in the USSR (and the RSFSR), which was fixed not only at the level of laws, but also in the Basic Law of the USSR (and the RSFSR), where not only the limits of the exercise of people's control, but also the mechanism of interaction of its bodies with public administration bodies, as well as citizens of the country, organizations, institutions and enterprises. This allowed the people's control bodies to carry out its activities in relation to any enterprises, institutions and organizations, using real powers (for example, up to the temporary suspension of officials from their duties, the cancellation of their decisions, local regulations of these legal entities).

In this regard, it seems necessary to consolidate the institution of public control in the Constitution of the Russian Federation, outlining the grounds and limits of public control, signs and a list of its objects and subjects, forms, methods and types of public control measures, the mechanism of interaction of subjects of public control with public authorities, their officials, as well as legal entities in the country, who are entitled to exercise certain public powers. This will, on the one hand, increase the authority and importance of the institute of public control in Russia, and on the other hand, develop and consolidate a system of measures of responsibility of the above-mentioned objects of public control for countering the legitimate activities of representatives of subjects of public control.

Secondly, a certain problem in the organization and implementation of public control in relation to non-state pension funds is the fact that Federal Law No. 212-FZ of 21.07.2014 "On the basics of public control in the Russian Federation" did not fix the list of objects of public control, as well as a set of signs by which they can be identified. In addition, the concept of "public powers" used in article 4 of this Federal Law, on the basis of the possibility of exercising which, in accordance with federal laws, non-governmental and non-municipal organizations can be classified as those with respect to the activities, acts and decisions of which public control measures can be carried out, is not fixed at the level of federal laws and is of a debatable nature. ^{[10, pp. 91-94]}

In this regard, it seems necessary to fix in the above-mentioned Federal Law the concept of an object of public control, their list, or signs by which it can be identified. In addition, it is necessary to consolidate in this Federal Law the definition of the concept of "public powers", which should be understood as any powers of state authorities and local self-government bodies enshrined in the Constitution of the Russian Federation, as well as current legislation, which can only be exercised by state authorities and local self-government bodies, or other bodies and organizations, in the case of delegation of these powers by public authorities.

Thirdly, a significant problem in the organization and implementation of public control over the activities of non-state pension funds is the lack of consolidation of the institution of public control in Federal Law No. 75-FZ of 07.05.1998 "On Non-state pension Funds". At the same time, for example, Federal Law No. 111-FZ of 24.07.2002 "On Investing funds to finance a funded pension in the Russian Federation" establishes the possibility of public control over the formation and investment of pension savings of citizens of the Russian Federation. To implement it, it is planned to create a Public Council for investing pension savings, which includes representatives of trade unions of employees and employers, as well as other public associations and organizations. The regulations on this Public Council, its number and personal composition are determined (approved) by the President of the Russian Federation. At the same time, this Public Council is endowed with a number of important powers both to request information from relevant public authorities (including the Central Bank (Bank of Russia), and to create expert groups involving a wide range of specialists in the field of pension provision organization, turnover of pension savings, modeling of their investment directions, etc.).

However, in our opinion, although this Public Council may request information from public authorities regarding the activities of non-state pension funds with mandatory pension insurance powers, the above-mentioned Federal Law does not fix and does not detail the mechanism of interaction of this organizational structure of public control with non-state pension funds in the Russian Federation.

In this regard, it seems necessary to fix in Federal Law No. 75-FZ of 07.05.1998 "On Non-State Pension Funds" a separate section dedicated to the organization and implementation of public control over the activities, acts and decisions of non-state pension funds in Russia, which should specify the grounds, limits, methods, forms and types of public control measures, which are specific to this area of the country's economy. Moreover, a significant number of methods, forms of evaluation, verification of the activities of non-state pension funds in Russia have been developed in the scientific and educational literature. ^{[7, p. 40-46; 16, p. 19-31]} This will allow subjects of public control to organize and conduct its events in a timely manner. Alternatively, it is possible to consolidate in this Federal Law a separate type of organizational structure of public control, the creation of which is permissible in accordance with Part 2 of Article 9 of Federal Law No. 212-FZ dated 21.07.2014 "On the basics of public Control in the Russian Federation".

Alternatively, due to the fact that the number of non-state pension funds in the Russian Federation is relatively small, the Public Council for Investing Pension Savings can act as such an organizational structure of public control. However, in this case, it is necessary to expand, supplement and detail the powers of this organizational structure of public control (regarding the organization and implementation of public control measures in relation to non-state pension funds in the Russian Federation), fixing them in the above-mentioned federal laws dated 07.05.1998 No. 75-FZ and dated 24.07.2002 No. 111-FZ. In addition, it requires the development and consolidation in the federal data of the mechanism of responsibility of non-state pension funds for countering the legitimate activities of subjects of public control in the Russian Federation.

In addition, the above-mentioned measures of legal responsibility of non-state pension funds, as well as their officials, for countering the legitimate activities of subjects of public control should be fixed in the Criminal Code of the Russian Federation, as well as the Code of Administrative Offences of the Russian Federation.

This will allow, on the one hand, to protect representatives of subjects of public control from illegal influence from non-state pension funds, and on the other hand, to force the latter to comply with the legislation on public control under threat of administrative or criminal liability.

Conclusion.

The resolution of the above-mentioned problems will not only ensure the optimal organization and implementation of public control over the activities, acts and decisions of non-state pension funds, but also generally strengthen this institution of civil society as the most important legal guarantee for the implementation, protection and protection of the constitutional principles of democracy and public participation in the management of state affairs.