The need to clarify the understanding of the category of public-private partnership in domestic legislation

Makarov Ivan Nikolaevich Doctor of Economics Professor of the Department of Management and General Humanitarian Disciplines, Financial University under the Government of the Russian Federation, Lipetsk branch 398050, Russia, Lipetsk region, Lipetsk, International, 12b excellennzz@gmail.com Other publications by this author     Shelud'ko Artem Sergeevich Arbitration Manager, Center for Financial Recovery of Agro-Industrial Enterprises 125167, Russia, Moscow region, Moscow, Leningradsky Prospekt str., 49 excellennzzz@mail.ru

Drobot Elena Valer'evna ORCID: 0000-0002-5205-5455 PhD in Economics Teacher, Center of Additional Professional Education 188800, Russia, Leningrad region, Vyborg, Primorskaya str., 32 elenadrobot@mail.ru

In our country, public-private partnership is officially associated with the 224-FZ adopted in 2015 (Federal Law "On Public-Private Partnership, Municipal-Private Partnership in the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation" dated 13.07.2015 No. 224-FZ).

At the same time, it should be noted that the introduction of the public-private partnership system (hereinafter — PPP) into the Russian legal system (practice) has become one of the most important decisions taken by the Government to stimulate the economic growth of the country. One of the main reasons for the widespread use of PPP is its potential to attract private sector financing in industries and activities under the jurisdiction and attention of the state.

It should be noted that the study of various aspects and features of the use of public-private partnership instruments has traditionally been given a lot of attention in both domestic and foreign scientific research.

Among the scientific studies published in recent years in Russian scientific journals, in our opinion, the following publications are of interest. Ablyazov T. H. and Marusin A.V. consider public-private partnership as a mechanism for the development of transport infrastructure in the conditions of the formation of the digital economy ^{[1, p. 1271-1280]}. Baranova I. V. and Muradov A. A. analyze the tools for improving the efficiency of innovation activities of public-private partnership structures ^{[2, p. 12-19]}. E. A. Barbashina notes the special role of public-private partnership in managing the processes of innovative development of the Russian economy ^{[3, pp. 119-130]}. Brovchak S. V., Smirnova A. A., Zotov I. A., Mingazov A. R., Golovko A.D. studies the place of public-private partnership in the financial model of social economy ^{[4, pp. 1377-1392]}. Of particular interest, including in the context of our research, is the article by E. M. Buchwald, in which he pays special attention to the legal foundations of public-private partnership in the context of the implementation of national projects in the Russian Federation ^{[5, pp. 503-516]}. Vavilina A.V., Kirillova O. Yu., Malinovskaya M. I. conclude that the implementation of public-private partnership models in the development of regional infrastructure in Russia is promising ^{[6, pp. 1255-1270]}. The civil nature of agreements in the field of public-private partnership is considered by V. V. Kilinkarov and B. A. Ponomarev ^{[7, pp. 44-54]}. A series of articles by A.V. Kireeva is also interesting, in which she analyzes the possibilities of using public-private partnership in the field of control and coercion, considering PPP as a new element of the state mechanism ^{[8, pp. 47-58; 9, pp. 1251-1257]}. New opportunities of public-private partnership in the crisis period are evaluated by Knyazev Yu. K. ^{[10, p. 1679-1692]}. Maslova S. V. considers the role of international organizations in regulating relations in the field of public-private partnership ^{[11, p. 1-15]}. And finally, Mendelos E. I. writes that public-private partnership is a factor of "inclusive" political and economic development ^{[12, pp. 51-56]}.

As for foreign scientific journals and publications of foreign authors, it can be noted that the problems of PPP are of universal scientific interest, and the geography of authors and the regions they study is very wide: these are Asian republics (Kazakhstan, Uzbekistan, etc.), Malaysia, China, and many other countries. Moreover, in general, PPP projects are of greater interest to researchers from developing countries. At the same time, in many foreign publications, PPP is considered in the context of its impact on sustainable development. For example, Abdul Latif A. S. and co-authors assess the impact of contract management on the ratio of critical success factors and the effectiveness of public-private partnership in Malaysia ^{[13, p. 109]}. Afieroho U. E. and co-authors study the government approach to creating social value within the framework of public-private partnership projects in the process of urban infrastructure transformation ^{[14, p. 1225]}. Castelblanco G., Safari P. and De Marco A. investigate public-private partnerships in the field of healthcare ^{[15, p. 2452]}. Kitsai Yu. A. and co-authors study the use of the mechanism of public-private partnership for sustainable development ^{[16, pp. 91-100]}. Li Z. and Wang H. risk factors affecting the sustainable results of global public-private partnership projects are identified ^{[17, p. 2140]}. Majer K. M. and co-authors define measures of effective risk management for public-private partnership infrastructure projects in developing countries ^{[18, p. 14149]}. Miranda-Poggis A. G. and Morena M. assess the problems of PPP in modern housing construction ^{[19, p. 4859]}. Mohamed Abdelkader E. and co-authors propose a multi-criteria decision-making model for evaluating public-private partnership in transport projects ^{[20, p. 3559]}. Mostafa F., Elsayd A.M., Id M. S., and others write about the need for a fair distribution of risks in public-private partnership projects ^{[21, pp. 1-12]}. Shi S. and co-authors investigated the impact of the interdependence of tasks on the effectiveness of the team in public–private partnership projects ^{[22, p. 13429]}. Peng S.-Yu. raises an important question about public-private interaction in the management of privacy ^{[23, p. 80]}. In the book edited by B. Weiss, the authors attempted to consider the impact of public-private partnership on the financing of the general welfare of the country's population ^[24]. Rubtsova N. V. analyzes the place of public-private partnership in the regulation of entrepreneurial activity in Russia ^{[25, p. 1566-1576]}. Song Yu. and Hao S. assess the impact of project management mechanisms on the sustainable development of public-private partnership in China ^{[26, p. 2424]}. Vaslavsky Yu. I. and Vaslavskaya I. Yu. assess the problems of implementing public-private partnership projects in the context of the global social crisis COVID-19 ^{[27, p. 012046]}. Zhang H. with co-authors, they investigate the impact of the interdependence of teams on the effectiveness of cooperation in PPP projects in the context of the mitigating effect of government equity participation ^{[28, p. 12684]}.

It must be recognized that the category of PPP is currently more widely developed in economic theory than in jurisprudence, which makes it necessary to conduct case studies on this issue. Moreover, in our opinion, in this case, the justification of legal provisions should "grow" from both economic practice and our country, as well as foreign experience and, even more significantly, from the theoretical developments of economic science regarding the essential nature and purpose of public-private partnership.

Historically, our state has played different roles in the process of forming economic relations — from complete non-interference to total control over the economy. In this regard, the theoretical and methodological assessment of the prerequisites and conditions, primarily legal, for the creation of a PPP in Russia seems to be more important than understanding the mechanics of PPP implementation or analyzing financial and economic indicators. According to economic research, the study of financial and economic indicators when creating a PPP in Russia is less important than the legal, legal and political aspects of the topic.

However, the structuring of such PPPs is a jurisdictional and practical issue, and the legal framework should correspond to the economic, social and financial goals of all participants in such a partnership.

In addition, it should be borne in mind that domestic judicial practice has not yet developed a comprehensive and systematic understanding of PPP, in particular PPP agreements. Therefore, the main focus of legal research in this area is to develop a specific legal framework that meets the political, economic, social and financial goals of all participants in such a partnership. This framework should be aimed at creating institutional conditions under which the problems associated with PPP can be successfully solved.

And the main problem we see here is that the domestic regulatory framework does not adequately reflect the socio-economic and political purpose of both individual partnerships and the entire system of public-private partnership.

For a more correct understanding of the problematic nature of the issue and the possibility of its legal interpretation and solution, let's consider the essence and socio-political and economic purpose of PPP.

First of all, it should be noted that the partnership of the state and private sector entities is a method of ensuring the interaction of the public and private sectors on the basis of agreements—agreements on the interaction of the state, represented by the relevant authorities, and a private participant in legal relations. It is based on financial contributions, risk sharing and the pooling of rights, duties and responsibilities for the processes of generating and implementing public goods, including the implementation of national plans and state programs, sustainable economic development and other social benefits, which in the framework of political economy are called "patronized" goods. Accordingly, in general, PPP is a civil phenomenon regulated by the legislation of the Russian Federation and aimed at the integral formation of the economic system of the country (state, household enterprises) and its growth.

The following is an analysis of the main definitions of public-private partnership available in domestic and foreign scientific literature.

M. B. Gerrard and A. Pankratov adhere to the position that PPP should be considered as "a borderline institution in the field of state and business relations, which is neither an institution of privatization nor an institution of nationalization, but only a form of optimization of the state's performance of its duties to society, i.e. uninterrupted presentation of public goods to the population" ^{[29, p. 29]}. The authors clarify that this understanding of PPP is a translation of the definition of public-private partnership proposed in their work ^[30]. In this definition of public-private partnership, the following most significant points can be identified:

1) the production of patronized goods is thought of as the main purpose of PPP;

2) the approach to public-private partnership is applied precisely as an economic institution;

3) the "borderline" state of PPP between the public and private sectors of the economy is fixed and highlighted;

4) partnership is considered as a macro-level phenomenon.

According to the definition of PPP given by V. Varnavsky, in its essence, public-private partnership is "an institutional and organizational alliance between the state and business in order to implement national and international, large-scale and local, but always socially significant projects in a wide range of fields of activity" ^{[31, p. 5]}. As we can see, V. Varnavsky also focuses on the high social significance of the benefits supplied by the PPP system, expressed in his definition of PPP as "socially significant projects", which allows us to conclude that there are elements of a project management approach in his understanding of the phenomenon of public-private partnership. The analysis of PPP in the works of this researcher is carried out from the positions of the macro-level and meso-level (industry aspect).

Another theorist M. Vilisov defines public-private partnership as "a legal mechanism for coordinating the interests and ensuring equality between the state and business in the framework of economic projects aimed at achieving the goals of public administration" ^{[32, p. 54]}. In its definition, it is necessary to highlight such significant features of public-private partnership as:

1) the existence of a legal mechanism for coordinating the interests of partners;

2) the existence of a legal mechanism that ensures equality of partners.

It is also necessary to include the analysis of public-private partnership as an economic mechanism among the features of the definition of PPP given by M. Vilisov, which confirms the hypothesis of an interdependent relationship between economic and legal components in the work of PPP.

From the point of view of E. Dynin, "PPP is the combination of tangible and intangible resources of society (state or local government) and the private sector on a long—term and mutually beneficial basis for the creation of public goods (landscaping and development of territories, development of engineering and social infrastructure) or the provision of public services (in the field of education, health, social protection and etc.)" ^{[33, p. 15]}. In addition to the provision on the creation of public goods as the main purpose of PPP, voiced in the above definitions of public-private partnership, E. Dynin's definition focuses on the pooling of resources as the basis for the functioning of public-private partnership, that is, this author considers PPP from the materialistic position of the resource approach.

As a result of the presented review of theoretical approaches to understanding PPP, the following conclusions can be drawn:

1. The majority of Russian scientists who studied public-private partnership considered this socio-economic phenomenon separately, from the standpoint of property relations, systemic resource and institutional approaches.

2. Domestic and foreign researchers of public-private partnership have identified three fundamental criteria that allow unambiguously identifying the partnership as a project activity:

a) the presence of consolidation of the resources of the state in the person of its authorized representative and an economic entity — a representative of the private sector;

b) the existence of a mechanism for consolidating and redistributing the totality of risks accompanying the public-private partnership project throughout its implementation;

c) the existence of a target purpose — the generation of socially significant benefits, the focus on providing society with the necessary resources that have the character of a public, mixed and mixed communal good — that is, patronized goods.

Since in the process of public-private partnership research we consider PPP from the point of view of project management and the nature of the benefits produced, as well as from the standpoint of resource, institutional and systemic approaches, respectively, when developing the classification of PPP forms as a complex systemic phenomenon, it is necessary to develop a system of features based on the principles of these approaches. At the same time, due to the fact that PPP at the micro level is one of the forms of interaction of economic agents, it is necessary to take into account the already identified signs of PPP, extending them to all forms of partnership.

The principles of the resource approach, therefore, based on our definition of public-private partnership, should be embodied in a sign of the formation of a legally formalized mechanism for pooling or delegating resources and redistributing risks, which we have paid attention to in our other works ^{[34, 35]}.

Now let's consider the legist, i.e. the "official" definition of public-private partnership, enshrined in 224-FZ (Federal Law No. 224-FZ of 13.07.2015 (ed. of 29.12.2022) "On Public-Private Partnership, Municipal-Private Partnership in the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation"). As noted in article 3 of this law, "public-private partnership, municipal-private partnership is a legally formalized for a certain period and based on pooling resources, risk sharing cooperation between a public partner, on the one hand, and a private partner, on the other hand, which is carried out on the basis of a public-private partnership agreement, an agreement on municipal-private partnerships concluded in accordance with this Federal Law in order to attract private investment into the economy, ensure the availability of goods, works, services and improve their quality by state authorities and local self-government bodies."

The key point to which, in our opinion, it is necessary to pay attention is the presence of two of the three mandatory elements in the law, while a full, exhaustive definition should contain all three elements.

This is where such methodological complexity manifests itself, as the lack of consolidation of the concept of "patronized good" in domestic legislation and legal practice.

At the same time, we must remember that the criterion for generating patronized benefits during the implementation of other forms of agreements should become a criterion for separating other forms of agreements between the state and representatives of the private sector — economic entities and what can (should) be classify it as a quasi-PPP, and the presence of two other signs is a dividing line between a quasi—PPP and a "full-fledged" public-private partnership.

Thus, in our opinion, the definition of "public-private partnership" should be stated as follows: "public-private partnership, municipal-private partnership — legally formalized for a certain period and based on pooling resources, risk sharing cooperation of a public partner, on the one hand, and a private partner, on the other hand, which it is carried out on the basis of an agreement on public-private partnership, an agreement on municipal-private partnership concluded in accordance with this Federal Law to attract private investment into the economy, in order to ensure that state authorities and local self-government bodies implement their functions, which consist in generating socially significant benefits having the nature of a patronized good."

Accordingly, the concept of "patronized good" is "a good that has the character of a pure public, mixed and mixed communal good, the key characteristics of which are the possibility of determining the price for an individual consumer and the presence of both private and public effects from individual consumption of this good."

This should be a key difference with contracts for the supply of purely public goods that are not excluded in individual consumption, for which it is impossible to set a price for an individual consumer.

Conclusion

In conditions of economic difficulties, the instrument of public-private partnership can and should contribute to the comprehensive improvement of the domestic economy. However, for this, first of all, it is necessary to create an effective system of contract information between the state and private partners. In turn, the basis for the formation of an effective public-private partnership management system should be the optimization of the right field.

This requires a clearer understanding of the essence of public-private partnership in the context of the mobilization orientation of the economy and the introduction of digitalization into everyday economic reality.