Legal institute of preferences: concept, composition and system

Chornovol Evgeniy Petrovich PhD in Law Associate Professor, Department of Civil Law and Procedure, Ural Institute of Management (branch), Russian Academy of National Economy and Public Administration under the President of the Russian Federation; Honorary Worker of Higher Professional Education of Russia 620990, Russia, Sverdlovsk region, Yekaterinburg, ul. 8 Marta, 66, office 49 echornovol@mail.ru Other publications by this author

A system of legal norms defining the legal forms of granting, with the prior consent of the antimonopoly authority, unless otherwise established by law, by state authorities of Russia, subjects of the Russian Federation, as well as municipalities, other bodies or organizations performing the functions of these bodies (hereinafter referred to as the authorities of public legal entities) to individual economic entities of state or municipal preferences by transferring property, other objects of civil rights or property benefits in order for them to carry out entrepreneurial or income-generating activities on more favorable terms and ensuring, when used by economic entities, the resolution of socially significant problems of Russian society, traditionally as in educational (Puzyrevsky S.A. Competition law: educational method. a complex for full-time, part-time, correspondence students for 2013-2014, 2014-2015 academic years. M.: Publishing Center of the Kutafin University (MSLA), 2013; Pisenko K.A., Badmaev B.G., Kazaryan K.V. Antimonopoly (competition) law: Textbook. Prepared for the Consultant Plus system. 2014 / SPS "Consultant Plus", 2023 (Authors of the chapter - K.A. Pisenko, B.G. Badmaev); Competition Law of Russia: textbook / Ed. by I. Y. Artemyev, A. G. Sushkevich; Nats. research. uni-t "Higher School of Economics". – 2nd ed., reprint. and dop": Higher School of Economics. Moscow, 2014. p.151 (The author of the chapter is E.V. Seredina); Competition law: textbook / Under the general editorship of M.A. Egorova, A.Yu. Kineva. Scientific ed. I.Y. Artemyev. M.: Justicinform, 2018. p. 197 (Author of the paragraph - A.P. Tenishev); Egorova M.A., Petrov D.A. Competition law of Russia: textbook. M.: "Prospect", 2019. p. 77), and in scientific ^{[1, p. 31-39; 2, p. 194-202; 3, p. 62-71; 4, p. 212-219; 5, p. 179]} literature, including dissertation research (Kinev A. Yu. Administrative and legal protection of competition: problems and ways of improvement: abstract. dis. ...Dr. jurid. sciences'. Specialty 12.00.14. M., 2014; Plekhanov D.A. Protection of competition from anticompetitive acts, actions and agreements of public authorities and local self-government (legal aspect): abstract. dis. ...cand. jurid. sciences'. Specialty 12.00.07. M., 2019) is covered from the perspective of antimonopoly regulation of the activities of bodies of public legal entities or analysis of the block of binding norms ^{[6, pp. 46-52]} of Federal Law No. 135-FZ of 26.07.2006 "On Protection of Competition" (Collection of Legislation of the Russian Federation. 2006. No. 31 (Part 1). Article 3434; 2023. No. 29. Article 5319) (hereinafter – the Law on Protection of Competition) or the legal provisions of the state Antimonopoly Control ^{[7, p. 23]}. According to the judges of the Arbitration Court of the North-Western District, the norms of Chapter 5 of the Law on Protection of Competition "are applied in practice by the antimonopoly authority mainly in conjunction with the provisions of Articles 15 and 16 of the Law on Protection of Competition, regulating the prohibition of acts and actions of authorities restricting competition, as well as Chapter 4 of the said law, which establishes antimonopoly requirements for bidding and peculiarities of concluding contracts with respect to state and municipal property" ^{[8, p. 25-30]}. Similarly, this issue is also resolved by scientists from CIS countries, for example, Ukraine (Valitov S.S. Competition Law of Ukraine. Textbook. K.: Yurinkom Inter, 2006. p. 120], Moldova ^{[9, p. 86]}, Kazakhstan (Competition law of the Republic of Kazakhstan. Study guide. Astana, 2015. p. 211 (Authors of the section K.D. Kholtursunov and N.V. Radostovtsev)) 

At the same time, some researchers, in particular D.A. Petrov, limit themselves only to general comments on the characteristics of these regulations, referring them to measures aimed at preventing anti-competitive behavior ^{[10, p. 43]}. Other scientists do not pay attention to them at all, for example, a former employee of the FAS of Russia A. Ulyanov in a paper devoted to the analysis of the effectiveness of antimonopoly regulation ^[11], current employees of the FAS of Russia are the authors of a monograph on antimonopoly regulation in the digital age ^[12], as well as the developers of the course "Competition Support Policy" in the direction 040200.68 "Sociology" within the framework of the Master's program "Applied Methods of Social Analysis of Markets" of the Higher School of Economics S.B. Avdasheva, E.N. Kalmychkov, R.A. Martusevich (Avdasheva S.B., Kalmychkova E.N., Martusevich R.A. Competition Support Policy 2008/2009 // Economic sociology. 2008. Vol. 9. No. 3. May. pp. 104-124) and the Work program of the discipline "Antimonopoly law" in the field of training/specialty: 40.03.01 "Jurisprudence" of the Peoples' Friendship University of Russia, Doctor of Law, Associate Professor K.A. Pisenko (URL: https://www.rudn.ru/sveden/files/Progr_Antimonopolynoe_pravo_YUYURbd00r_2022.pdf ).

At the same time, some scientists argue that the provision of preferences (state and municipal assistance) is not included in the subject of regulation of competition law. For example, A.N. Varlamova, analyzing the objectives of granting preferences specified in Part 1 of Article 19 of the Law on Protection of Competition, notes that their provision is for the development of "culture, social support for unemployed citizens, etc. it has nothing to do with the development of competition" (Varlamova A.N. Legal assistance to the development of competition in commodity markets: abstract. dis. ...Dr. yurid. sciences'. Specialty 12.00.03. M., 2008. p. 12), or they do not always influence its evolution ^{[13, p. 36-41]}. M.A. Egorova takes an even more radical position on this issue. Thus, describing competitive relations, she writes: "Here it is particularly necessary to focus on the relations on the provision of state and municipal preferences. Despite the fact that these relations are regulated by the Law on Protection of Competition, we believe that they are not included in the subject of regulation of competition law as a branch of law. Within the framework of these relations, competition is not protected, but only a certain procedure for granting such preferences is provided, the observance of which is not related to ensuring competition during the granting of preferences. We believe that the peculiarities of these relations allow them to be attributed more to administrative law" (Competition law: textbook / Under the general editorship of M.A. Egorova, A.Yu. Kineva. Scientific ed. I.Y. Artemyev. M.: Justicinform, 2018. p. 11).

The granting of preferences a priori implies their influence on the state of competition, which was highlighted in previous publications ^{[14, p. 188]}. The majority of scientists hold a similar opinion on this matter. As I.V. Bashlakov-Nikolaev correctly notes, "The scope of application of the Law on Protection of Competition also includes public relations related to the provision of advantages by government authorities to commercial and non-profit organizations through the institution of state and municipal preferences. Preferences have an impact on competitive relations, may lead to the elimination or prevention of competition, and should be granted only taking into account such influence, the purposes of granting preferences and in compliance with established procedures" (Competition Law of Russia: textbook / ed. by I. Y. Artemyev, S. A. Puzyrevsky, A. G. Sushkevich; Nats. research. uni-t "Higher School of Economics". – 2nd ed., reprint. and dop": Higher School of Economics. Moscow, 2014. p. 38). According to I.V. Knyazeva, the selective provision of benefits and advantages by the authorities to individual economic entities is one of the main threats to competition (Knyazeva I.V. Antimonopoly policy in Russia: textbook, a manual for university students studying in the specialty "National Economy". Ed. 2nd, reprint M.: Omega-L. 2007. p. 188). D.A. Plekhanov also points out that "any state (municipal) preference is a way of interfering in market relations. Such interference cannot but affect the state of competition" ^{[15, p. 105]}. I. P. Bochinin speaks about the threat of restricting competition even if the antimonopoly authority agrees to grant preferences ^{[16, p. 86]}. Some authors, in particular, K.S. Korovina ^{[17, p. 27]} and V.A. Shipunov ^{[18, p. 10]}, as one of the signs of preference indicates its "influence on the conditions of competition".

Meanwhile, neither A.N. Varlamova, nor M.A. Egorova and other legal scholars who share their opinion do not take into account the fact that relations that are the subject of regulation of legal education on preferences act as a separate type of social ties for the protection and development of competition as a whole as a subject of competition law. Such a conclusion follows from the functions of the rules on preferences, which are aimed at maintaining and developing competition by controlling the antimonopoly authority for the selective granting of preferences by public legal entities and their use by economic entities, including those receiving income from their activities, in particular, in the field of environmental protection, culture, sports, science, etc., for a legal purpose. After all, the consent of the antimonopoly authority to grant preferences can take place only when it is provided for the purposes specified in Part 1 of Article 19 of the Law on Protection of Competition, and its provision does not lead to the elimination or prevention of competition in the field of civil turnover in general and in the field of entrepreneurship in particular (paragraph 1 of Part 3 of Article 20 of the Law on the protection of competition). At the same time, since the subject of regulation in this situation is relations to ensure law and order, designed to guarantee the normal flow of value exchange processes and management processes in society between public-law entities, business entities and the antimonopoly authority, insofar as the legal regime of preferences is not limited to antimonopoly prohibitions against bodies of public-law entities providing preferences, and includes it includes all methods (centralized and decentralized), methods (authorizations, obligations, prohibitions and coercion) and types (permissive and permissive) of legal influence in their various combinations on the relations under consideration, manifested in the regulatory static or dynamic and protective functions of the relevant institutions. In this regard, the doctrinal justification of the functioning of a separate legal entity on preference in the system of competition law has not only theoretical, but also important practical significance both in terms of maintaining and developing competition in the country's commodity markets, and ensuring law enforcement practice, including those related to the possibility of applying one or another type of legal regulation to the relevant relations, general principles and techniques inherent in competition law.

Attributing the law of preference to other institutions of competition law or denying their connection with competition law not only levels the significance of their prescriptions, but also generates legal nihilism towards preference as a legal mechanism of public-private partnership for solving socially significant tasks in certain spheres of life of Russian society. It is an indisputable fact that by now a vast array of legal norms on preferences has been formed in domestic competition law.

Its political and legal basis and, accordingly, the regulation of relations on the selective granting of state and municipal preferences to economic entities are the prescriptions of Part 1 of Article 7, Part 1 of Article 8, Part 2 of Article 34, Article 74, Article 75.1 of the Constitution of Russia, which enshrine the principles of a market economy, freedom of entrepreneurship, other economic activity, protection of competition and ensuring the creation of conditions for sustainable economic growth of the country and improving the well-being of citizens, for mutual trust between the state and society, guarantees for the protection of the dignity of citizens and respect for human labor, ensuring a balance of rights and duties of a citizen, social partnership, economic, political and social solidarity in Russian society. According to these constitutional norms, selective granting of preferences to economic entities is allowed if it does not lead to the elimination or prevention of competition (sub-paragraph 1 of Part 3 of Article 20 of the Law on Protection of Competition) and contributes to the solution of socially significant tasks of the development of Russian society in certain spheres of its life (Part 1 of Article 7 of the Constitution of the Russian Federation) ^{[19, p. 5-15]}.

According to paragraph 4 of Article 15 of the Constitution of the Russian Federation, generally recognized principles and norms of international law and international treaties of Russia, including those containing norms on preferences (state aid), are an integral part of the country's legal system. At the same time , if an international agreement Russia has established rules other than those provided for by this Law on Protection of Competition, the rules of the international treaty of Russia are applied (Part 3 of Article 2 of the Law on Protection of Competition, paragraphs 2-6, 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 5 of 10.10.2003 (ed. of 05.03.2013) "On the application by courts of general jurisdiction of generally recognized principles and norms of International Law Law and international treaties of the Russian Federation" (Bulletin of the Supreme Court of the Russian Federation. 2003. No. 12).

The provisions of such international acts as Article 10 bis of the Paris Convention for the Protection of Industrial Property of 20.03.1883 are extremely important for regulating relations on granting preferences to economic entities by public legal entities (URL: www.rupto.ru ) (as amended on 02.10.1979), Part I of the Agreement on Subsidies and Countervailing Measures of the Marrakesh Agreement Establishing the World Trade Organization dated 15.04.1994 (PCA "ConsultantPlus", 2023), Section VI (Articles 53-55) of the 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 on the island of Corfu on 24.06.1994) (URL: www.pravo.gov.ru ), subp. 2 paragraph 2 of Article 75 of the Treaty on the Eurasian Economic Union (Signed in Astana on 29.05.2014 as amended. from 05.08.2021) (URL: www.pravo.gov.ru ).

At the sectoral level of legal regulation of these social ties, the norms of numerous federal, including codified, laws, in particular, Articles 1, 10 and the norms of Parts 2, 3, 4 of the Civil Code of the Russian Federation, directly regulating civil turnover, are in force. As N.I. Klein notes, the branch of antimonopoly legislation is based on the norms of the Civil Code of the Russian Federation, "In particular, these are the norms of Article 1 of the Civil Code of the Russian Federation based on the beginning of civil legislation ... Article 10 of the Civil Code of the Russian Federation is important for antimonopoly legislation... Part 4 of the Civil Code of the Russian Federation regulating the rights to the results of intellectual activity and means of individualization, as well as Article 1033 of the Civil Code of the Russian Federation and a number of other norms are inextricably linked with the norms of antimonopoly legislation on the prohibition of unfair competition and on the prohibition of anti-competitive agreements" (Competition Law of Russia: textbook / Ed. by I. Y. Artemyev, A. G. Sushkevich; Nats. research. uni-t "Higher School of Economics". – 2nd ed., reprint. and dop": Higher School of Economics. Moscow, 20143, p. 52). The rules on granting preferences in the form of a state or municipal guarantee are presented in Articles 6-9, art. 93.2, 115, 151.1-1, 151.2, 116, 117, 266.1 BC RF.

Other laws containing the rules of law on state and municipal preferences include federal laws: dated 26.07.2006 No. 135-FZ "On Protection of Competition" (paragraphs 5, 7, 15, 20 of Article 4, paragraph 7 of Part 1 of Article 15, Article 19-21); dated 24.07.2007 No. 209-FZ "On the development of small and medium-sized businesses in the Russian Federation" (Collection of Legislation of the Russian Federation. 2007. No. 31. Article 4006; 2019. No. 29 (Part 1). Article 3852) (regulating the procedure for providing support to small and medium-sized businesses (Article 16); dated 25.06.2002 No. 73-FZ "About objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation" (Collection of Legislation of the Russian Federation.  2002. No. 26. Article 2519; 2019. No. 29 (Part 1). Article 3853) (providing for the possibility of granting benefits to legal entities that have invested their funds in the preservation of cultural heritage objects – Article 14); dated 29.12.2006 No. 264-FZ "On the Development of Agriculture" (Collection of Legislation RF. 2007. No. 1 (Part 1). Article 27; 2018. No. 32 (Part 1). Article 5073) (fixing the main directions of state support in the field of agricultural development – Article 7); dated 12.01.1996 No. 7-FZ "On Non-profit organizations" (Collection of Legislation of the Russian Federation.1996. No. 3. Article 145; 2019 (Part 5). No. 49. Article 6966) (providing for the support of socially oriented non-profit organizations by state authorities and local self-government bodies - Article 31.1) and others, according to which the recipients of preferences are determined, the bodies of public legal entities providing preferences, the purpose of granting preferences or the provision of property and (or) other objects of civil rights to economic entities is excluded.

Norms on the support of economic entities, the development of small and medium-sized businesses, including through the provision of preferences, are also presented in the Decrees of the President of the Russian Federation, for example, No. 618 dated December 21, 2017 "On the main directions of state policy for the development of competition" (Collection of Legislation of the Russian Federation. 2017. No. 52 (Part 1). Article 8111), dated 07.05.2018 No. 204 (ed. dated 19.07.2018) "On national goals and strategic objectives of the development of the Russian Federation for the period up to 2024" (Collection of Legislation of the Russian Federation. 2018. No. 20. St. 2817), as well as in resolutions and orders of the Government of the Russian Federation, if their adoption is provided for by antimonopoly legislation. These include, for example, the Decree of the Government of the Russian Federation No. 1005 dated 04.10.2012 "On Approval of the Regulations on the Establishment of Preferential Rent and Its Amounts to Legal Entities and Individuals Who Own Federally Owned Cultural Heritage Objects (Historical and Cultural Monuments) of the Peoples of the Russian Federation on the Right of Lease, who have invested their funds in their Preservation and who ensured the performance of these works" (Collection of Legislation of the Russian Federation 2012. No. 41. St. 5627; 2020. No. 2 (Part 2). St. 190) and the Decree of the Government of the Russian Federation dated 02.09.2021 No. 2424-r "On the National Plan for the Development of Competition in the Russian Federation for 2021-2025" (URL: http://publication.pravo.gov.ru/Document/View/0001202109080001 )

Separate regulations on preferences are contained in the regulatory legal acts of the federal antimonopoly authority of the country (FAS of Russia), which, according to paragraph 2 of the Rules for the Preparation of Regulatory Legal Acts of Federal Executive Authorities and their state Registration, approved by the Decree of the Government of the Russian Federation of 13.08.1997 No. 1009 (ed. of 28.03.2020) (Collection of Legislation of the Russian Federation. 1997. No. 33. St. 3895) may be issued in the form of resolutions, orders, orders, rules, instructions and regulations. These include, in particular, the provisions of the Regulation on the territorial body of the Federal Antimonopoly Service (clause 6.2), approved by the Order of the FAS of Russia dated 23.07.2015 No. 649/15 (SPS "ConsultantPlus", 2023), Letter dated 11.04.2017 No. AD/24002/17 "On sending explanations on the provision of state or Municipal Preferences in order to support Subjects small and medium-sized businesses" (URL: fas.gov.ru ) and others.

The regulations on state and municipal preferences have also been consolidated in the laws and other legal acts of the subjects of Russia, for example, in Article 5 of the Leningrad Region Regional Law No. 52-OZ of 29.06.2012 (ed. of 12.05.2015) "On State support of socially oriented non-profit organizations in the Leningrad Region" (Bulletin of the Government of the Leningrad Region. 2012. No. 68 // SPS "ConsultantPlus", 2020), Chapter 4 of the Law of Moscow dated 26.11.2008 No. 60 (ed. dated 23.04.2014) "On the support and development of small and medium-sized businesses in the city of Moscow" (Vedomosti of the Moscow City Duma. 2009. No. 2. St. 273; 2014. No. 6. St. 117 // URL: http://www.duma.mos.ru ), as well as in the regulatory legal acts of municipalities, for example, in the Regulations on the Procedure for Leasing property owned by the municipal formation of the Khimki City District of the Moscow Region, approved by the Decision of the Council of Deputies Khimki City District MO dated 14.09.2011 No. 73/10 (ed. dated 08.07.2015) (Khimki news. 2011. September 21. No. 37), the Procedure for Granting Municipal preferences in the Lukhovitsy urban settlement of the Lukhovitsky municipal District of the Moscow Region, approved by the Decision of the Council of Deputies of the Municipal Formation of the Lukhovitsy Urban settlement of the Lukhovitsky Municipal district of the Moscow Region dated 07.07.2015 No. 105 (Lukhovitsky News. 2015. September 25.  No. 72) and similar legal acts of other municipalities.

The procedure for granting and using preferences is determined by separate Administrative Regulations of the FAS of Russia, namely: dated 12/16/2009 No. 841 (as amended on 06/20/2013 No. 414/13) for the performance of the state function of reviewing applications for consent to grant state or municipal preferences (URL:fas.gov.ru ); dated 25.05.2012 No. 340 on the execution of the state function for conducting compliance checks Antimonopoly legislation of the Russian Federation (www.pravo.gov.ru , July 25, 2017); dated 05/25/2012 No. 339 on the execution of the state function of initiating and considering cases of violations of the antimonopoly legislation of the Russian Federation (Bulletin of Regulatory Acts of federal executive authorities. 2013. No. 8), as well as regulations of the subjects of the Russian Federation, for example, Administrative Regulations for the Provision of state services for the provision of state preferences by transferring property to the region, approved by Order of the Vologda Region Property Relations Department dated 12/16/2011 No. 209 (as amended. dated 13.08.2019 No. 52-n) (URL: dio.gov35.ru ), and municipalities, for example, the Administrative Regulations for the Provision of municipal services "Provision of municipal preferences", approved by the resolution of the Administration of the City of Yekaterinburg of the Sverdlovsk Region dated 09.09.2022 No. 2705 (Yekaterinburg.rf). However, they do not contain provisions in their own legal sense: they do not contain a "result", but only define the procedure (procedures) for creating the "final administrative product", which is the main task of any administrative body. After all, according to paragraph 30 of the Procedure for the development and approval of administrative regulations for the performance of state functions and the Provision of public services (Collection of Legislation of the Russian Federation. 2005. No. 47. St. 4933) administrative procedures are "logically separate sequences of administrative actions in the performance of a state function (provision of a public service)." Each administrative regulation, including the above-mentioned ones, contains a section "Administrative procedures", which defines the grounds, stages, forms, terms and sequence of administrative actions covered by the concept of "administrative procedure". Consequently, the administrative regulations contained in the regulations regulate public relations, the legal regulation of which is conditioned by normative legal acts on the legal status and competence of executive authorities, but which is not directly regulated by them. The Regulations regulate the relations arising in the process of practical legal implementation activities of executive authorities, including the Federal Antimonopoly Service of Russia and other authorities of public legal entities in the field of public relations under consideration. Strengthening of legislative regulation of administrative procedures instead of their regulation in by-laws provides all participants in public relations of competition protection, including in the sphere of granting preferences to individual economic entities, the opportunity to obtain guarantees of sustainable activity in accordance with their rights and legitimate interests ^{[20, p. 6-41]}.

Explanations on the implementation of the legal provisions on preferences are provided in the documents of the FAS of Russia, in particular, in letters, for example, dated 05.07. 2013 No. AK/26062/13 "On the direction of Methodological recommendations on antimonopoly control over the provision of state or municipal preferences" (URL: fas.gov.ru ); dated December 23, 2013 on the issue of the possibility of granting state or municipal preferences to economic entities, namely pharmacy organizations, in accordance with paragraph 12 of part 1 of Article 19 of the Law on Protection of Competition; dated December 23, 2013 on granting preferences in the form of tax benefits;dated 24.12.2013 on the procedure for granting state preferences in the form of the right to conclude a contract for the placement of non-stationary commercial objects in order to support small and medium-sized businesses, established by paragraph 13 of Part 1 of Article 19 of the Law on Protection of Competition; dated 12/24/2013 on the application of paragraph 3 of Part 3 of Article 19 of the Law on Protection of Competition in the provision of state or municipal preferences in order to support small and medium-sized businesses; from 12/25/2013 clarification of antimonopoly legislation in determining the compliance of the provision of state or municipal preferences with a specific purpose; from 12/25/2013 on the legality of the transfer of ownership rights and (or) use of heat supply, water supply, sanitation facilities (boiler houses, water wells, water towers, etc.) located in the state and (or) municipal property, by granting state or municipal preferences, that is, without conducting appropriate bidding procedures; dated 29.09.2022 No. 6 on the specifics of state antimonopoly control over the provision of state or municipal preferences (URL: fas.gov.ru ), as well as in the resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation (until 2014) of 30.06.2008 No. 30 (with changes. 04.03.2021) "On some Issues Arising in Connection with the Application of Antimonopoly Legislation by Arbitration Courts" (Bulletin of the Supreme Court of the Russian Federation. 2008. No. 8; Bulletin of the Supreme Court of the Russian Federation. 2921. No. 5); dated 25.11.2021 No. 1307/21 (ed. dated 20.06.2022) "On Approval of the Plan of the FAS of Russia for the Implementation of the National Plan ("roadmap") of the development of competition in the Russian Federation for 2021-2025, approved by the decree of the Government of the Russian Federation dated 02.09.2021 No. 2424-r" (URL: fas.gov.ru ), dated 18.03.2020 No. 289/20 (ed. dated 22.03.2022) "On Approval of the Action Plan for the Implementation of the Strategy for the Development of Competition and Antimonopoly Regulation in the Russian Federation for the period up to 2030 year (Stage I - 2020-2024)" (URL: fas.gov.ru ) and the Plenum of the Supreme Court of the Russian Federation dated 04.03.2021 No. 2 "On some issues arising in connection with the application of antimonopoly legislation by courts" (URL: http.www.vsrf.ru ), reviews and generalizations of the law enforcement and judicial practice of these bodies. Although they do not have legal force, they are nevertheless essential for understanding the social and legal nature of relations on granting state and municipal preferences to economic entities, resolving disputes arising in this regard and developing recommendations for their further development and improvement of legal regulation.

So, the legal regulation of the coordination by the bodies of public legal entities with the FAS of Russia (its subdivisions) of the presentation and control of real according to legally defined purposes of use of state and municipal preferences to economic entities is carried out at two levels: constitutional and competitive legal, according to which the corresponding legal forms are formed on each of them – regulatory, legal, and individual ^{[21, pp. 5-22]}. This array of norms has not been comprehended in jurisprudence. In fairness, it should be noted that some legal scholars use the terms "institute of state and municipal preferences" (Competition Law of Russia) when referring to the study of the legal regulation of preference relations: textbook / ed. by I.Y. Artemyev, S.A. Puzyrevsky, A.G. Sushkevich; Nats. research. uni-t "Higher School of Economics". – 2nd ed., reprint. and dop": Higher School of Economics. Moscow, 2014. p. 38. And the author of the paragraph I.V. Bashlakov-Nikolaev) or "Institute of Preferences" ^{[22, p. 127]}. However, the corresponding arguments of these researchers indicate that this category is interpreted in the sense of a relational and social institution ^{[23, pp. 169-171]}, since it is not being positioned as a legal phenomenon. It seems that the definition of the legal nature of the above-mentioned array of norms as a legal entity can be presented from the standpoint of the theory of the system-structural functioning of law.

As is known, the scientific development of the problems of the system-structural functioning of law was carried out by specialists of various branches of jurisprudence, including such civilists as E.V. Vaskovsky (Vaskovsky E.V. Textbook of Civil Law. M.: "Statute", 2003. pp. 59-63) and K.D. Kavelin ^{[24, p. 69]} at the end of the XIX century. - early XX centuries . This made it possible to formulate the provisions on law as an internally organized set of prescriptions, which is characterized by a hierarchical structure, which, according to many scientists, for example, D.A. Kerimov ^{[25, p. 270]}, S.S. Alekseev ^{[26, p. 58]}, characterizes it as a legal regulatory system. At the same time, one of the facets of the legal system is its structure, which expresses the ordering of its elements, their location and internal organization ^{[27, p. 21]}. Traditionally, the differentiation of law into branches that combine internally related norms ^{[28, p. 46]} is carried out according to the subject and method of legal regulation. Russian law, which belongs to the German legal family, is characterized by internal dissection into relatively autonomous, stable and at the same time interconnected parts that are arranged according to a hierarchical scheme: the country's legal system, branch, sub-branch, institute, sub-institute, rule of law (Theory of law and the state. Textbook / Edited by V.V. Lazarev. M.: Spark, 2001. pp. 200-201). Based on the analysis of the doctrine of the legal institute of domestic pre-revolutionary ^{[29, pp. 378-385]}, Soviet ^{[30; 31; 32]} and modern representatives of the general theory of law ^{[33, p. 92; 34, p. 23]} and branch legal sciences ^{[35, p. 82; 36, p. 102]}, it seems reasonable to outline the above array of legal norms on preferences should be positioned as a separate legal institution of competition law.

In the theory of law, it is recognized that a legal institution is a complex group of legal norms legislatively isolated within the branch of law, united by a certain community of features that relate to regulated relatively independent or homogeneous in actual content relations within the subject of regulation of the branch of law (Alekseev S.S. Problems of the theory of law. Vol. 1. Sverdlovsk, 1972. p. 140). According to O.A. Krasavchikov, the existence of a particular legal institution can be stated in the presence of at least two of the following elements: firstly, there must be a certain system (subsystem) of public relations forming the subject of legal regulation, and secondly, there must be a certain set of norms regulating these social ties ^{[37, p. 111]}. In the perspective of the subject of competitive legal regulation – the protection of competition relations, social ties about preferences, act as an element of the latter, and therefore the subject of competition law. Accordingly, the education in question meets the criteria of the institute of law, among which it is customary to distinguish: uniformity of factual content, legal unity of norms and completeness of regulation of relations (Theory of law and the state. Textbook / Edited by V.V. Lazarev. M.: Spark, 2001. p. 200], attributed by V.S. Yakushev to his signs ^{[32, p. 65]}.

From the analysis of the first feature of the institution, according to which it regulates "certain types of homogeneous social relations (special institutions) or certain aspects of all relations of this kind, regardless of their species (general institutions)" ^{[31, p. 56]}, it follows that social ties for the coordination of the provision and control of the use of preferences are absorbed by the relations of protection of competition. Therefore, in relation to each other, they do not have a sign of relative independence. On the contrary, they are united in their content, which is expressed in the fact that both competition law as a whole and the above-mentioned rules on preferences protect competition, because preferences cannot be granted at all if this may lead to the elimination or prevention of competition.

Turning to the second feature of the institution, according to which the norms forming it are isolated in a separate structural part of the normative legal act, it should be noted that they were expressed in chapter five of the fundamental, system-forming legal act of competition law - the Law on Protection of Competition.

Finally, the rules on preferences provide for independent regulation of relations by agreement of the authorities of public legal entities with the antimonopoly authority for granting property rights to individual economic entities while ensuring the protection of competition in general, control by the antimonopoly authority for their targeted use by economic entities, allowing the solution of certain socially significant tasks of Russian society ^{[38, pp. 36-38]}, provided that their provision will not lead to the elimination or prevention of competition ^{[39, p. 251]}. According to the figurative expression of S.S. Alekseev, this contributes to the fact that "within its area of social relations of a given type or genus" a relatively complete regulation is achieved ^{[40, pp. 119-120]}. Therefore, its provisions cannot be included in the institute of antimonopoly regulation of the activities of public legal entities or any other sections of competition law, as some researchers admit, because they have a broader and more significant scope.

Summarizing the above, it can be concluded that the legal formation of preference regulations undoubtedly represents a separate legal institution formed in the competitive system, the concept of which can be formulated as follows.The Legal Institute of State and Municipal Preferences is a system of competitive legal norms regulating relations between public legal entities represented by federal state authorities, state authorities of the subjects of the Russian Federation, local self-government bodies, other bodies or organizations (public authorities) performing the functions of these bodies, an economic entity and an antimonopoly authority (its territorial subdivisions) on the approval of granting preferences to an economic entity by transferring state or municipal property, other objects of civil rights or property benefits, state or municipal guarantees used for the purposes provided for by law to resolve socially significant tasks of the company, providing it with more favorable conditions for activities aimed at obtaining profit or income compared to other persons, and also on the application by the antimonopoly authority to the authorities and the economic entity of measures of influence in violation of the requirements for the provision and / or use of these benefits.

Since the institution of preferences is part of competition law, all the features of the latter are characteristic of it. At the same time, this institution is a special legal entity, and therefore has a number of properties inherent only to it. 

Accordingly, first of all, it is impossible not to pay attention to the generalization in its composition of the prescriptions of Part 1 of Article 7, Part 1 of Article 8, Part 2 of Article 34, Article 74, Article 75.1 of the Constitution of the Russian Federation. This circumstance has not only theoretical, but also important practical significance, since they act as the core of the legal formation of preferences, and, having a systematizing effect on the subject of its regulation, predetermine the manifestation of genetic, subordination, coordination and structural links in the process of their impact on the provision and use of preferences (Nevinskaya E. V. System-forming function of the Constitution of the Russian Federation: autoref. dis. ...cand. jurid. sciences'. Specialty 12.00.02. Yekaterinburg, 2008. pp. 16-17). At the same time, these constitutional provisions, having the highest legal force and direct effect on the entire territory of Russia, act as a direct regulatory form of granting state and municipal preferences to individual economic entities (clause 1 of Article 15 of the Constitution of the Russian Federation). Accordingly, the courts and the antimonopoly authority, when considering cases of this category, should assess the content of industry regulations in this regard, based on constitutional norms, and, if necessary, apply the norms of the Constitution of Russia as direct-acting regulations, in particular, when:

a) the provisions fixed by the norm of the Constitution of the Russian Federation, based on its meaning, do not require additional regulation and do not contain an indication of the possibility of its application, subject to the adoption of a federal law regulating the rights, freedoms, duties of a person and citizen and other provisions;

b) The Constitutional Court of the Russian Federation has identified a gap in legal regulation or when a gap has been formed in connection with the recognition of a normative legal act or its individual provisions as inconsistent with the Constitution of the Russian Federation, taking into account the procedure, timing and specifics of the execution of the decision of the Constitutional Court of Russia, if they are specified in it (paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 8 of 31.10.1995 (ed. dated 03.03.2015) "On some issues of application by courts of the Constitution of the Russian Federation in the administration of justice" (Bulletin of the Supreme Court of the Russian Federation. 1996. No. 1).

As for the significance of the prescriptions of these and other international legal acts for the regulation of preferential relations, it should be noted that they have a higher legal force in comparison with national constitutional, as well as sectoral, regulations. Since, according to Part 6 of Article 125 of the Constitution of the Russian Federation, "Acts or their individual provisions recognized as unconstitutional become invalid; international treaties of the Russian Federation that do not comply with the Constitution of the Russian Federation are not subject to entry into force and application. Acts or their individual provisions recognized as constitutional in the interpretation given by the Constitutional Court of the Russian Federation are not subject to application in a different interpretation." In addition, international acts in this regard do not contain rules of direct effect, but, as a rule, impose on the States parties to the treaties the obligation to include the relevant regulations in their national law or refer to the law of the States parties to the relevant agreements. For example, in Part 1 of Article 15 of the CIS Model Law on Protection of Competition, adopted on 28.11.2014 by Resolution 41-11 at the 41st plenary session of the Interparliamentary Assembly of the CIS Member States (URL: www.pravo.gov.ru ), as well as in sub-paragraph 2 of paragraph 2 of Article 75 of the Treaty on the Eurasian Economic Union, it is stated that the provision of state or municipal assistance (preferences) is not allowed, except in cases provided for by the legislation of the member States of these agreements and taking into account the specifics provided for by these treaties and (or) other international treaties of the member states. Meanwhile, the grounds and procedure for providing state or municipal assistance (preferences) are established by the legislation of the member state of these agreements (See: paragraph 2 of Article 23 of the Model Law "On Competition", approved by the Decision of the Supreme Eurasian Economic Council No. 50 dated 24.10.2013 (URL: htth:/www.eurasiancommission.org).

The analysis of the provisions of the legal institute of preferences in general indicates that it includes legalizations that are heterogeneous in legal force, content and nature.

Its composition, along with constitutional legal provisions and international legal regulations, includes prescriptions of both federal codified laws, for example, the Civil Code of the Russian Federation, the BC of the Russian Federation, the unified Law on Protection of Competition, and legal acts of municipalities, for example, the Regulation on the procedure for making decisions on granting municipal preferences in the municipal entity "the city of Yekaterinburg", approved by the decision of the Yekaterinburg City Duma of 24.11.2009 No. 60/13 (as amended on 13.11.2012 No. 48/65) (URL: http://docs.cntd.ru/document/895243805 ), the Regulation on the procedure for granting municipal preferences on the territory of the Buturlinovsky Municipal District of the Voronezh Region, approved by the Resolution of the Administration of the Buturlinovsky Municipal District of the Voronezh Region dated 26.06.2013 No. 651 (Buturlinovsky Municipal Bulletin. 2013. № 12).

Certain legal provisions of the institute of preferences are substantive, for example, Part 1 of Article 7, Part 1 of Article 8, Part 2 of Article 34, Article 74, Article 75.1 of the Constitution of the Russian Federation, Article 10 of the Civil Code of the Russian Federation, Article 115, 151.1-1, 151.2, 116, 117 BC RF, p. 5, 20 art. 4 The Law on Protection of Competition, but most of them are procedural (procedural), in particular, Articles 20, 21 of the Law on Protection of Competition. However, the subject of its regulation in general is the procedural and supervisory relations formed between public legal entities represented by their bodies and officials and the antimonopoly authority regarding the latter's prior consent to grant state or municipal preferences to a particular business entity, as well as arising between the antimonopoly authority and the subject of granting and/or the business entity regarding compliance with conditions for the use of preferences (Articles 20, 21 of the Law on Protection of Competition). It is necessary to agree with the opinion of individual scientists that the subject of regulation of this institution does not include relations between bodies that intend to grant preferences to an economic entity and economic entities applying for preferences. Such conditions are regulated by legal acts issued within the established competence directly by those bodies that provide such preferences (Ageshkina N.A., Kail A.N., Serebrennikov M.M., Kholkina M.G. Commentary to Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition". - Especially for the GARANT system, 2018). Commenting on Article 20 of the Law on Protection of Competition, V. N. Golovin notes: "In fact, this article regulates the procedure for obtaining the prior consent of the antimonopoly authority for granting state or municipal preferences" (Golovin V.N. Commentary to Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (article by article) // SPS ConsultantPlus. 2013). Indeed, having property content and mutually binding nature, these relations are regulated by the norms of civil and financial law. But at the same time, it should be borne in mind that the acts of these authorities, as a rule, contain legal provisions of both the substantive and legal order, in particular, regarding the essence, status of subjects, forms and purposes of preferences, and the procedural order - on expressing the intention to grant preferences to an economic entity and coordinating this issue with the antimonopoly authority, for example, the Regulation on the procedure for leasing movable and immovable property of the municipality "Chernogolovka City District", approved by the Decision of the Council of Deputies of the Chernogolovka City District of the Ministry of Defense dated 17.08.2010 No. 35/226 (ed. dated 25.10.2011) (Chernogolovskaya Gazeta. 2010. September 2) or the Procedure for Providing property support - municipal preferences for leasing municipal property (non-residential premises) to small and medium-sized businesses managing multi-apartment residential buildings (hereinafter referred to as the procedure), approved by Resolution No. 3463 of the Cherepovets City Hall of the Vologda Region dated 25.06.2012 (URL: http://lawsrf.ru/region/documents/193294 /). It follows from this that the above-defined legal institution also includes material norms (definitions, principles, functions) of competition law, including those contained in legal acts of other branches of law. Moreover, these prescriptions predetermine the subject composition and conditions of civil and budgetary legal relations for the transfer of preferences by a public authority to a specific economic entity, as evidenced by Article 20 of the Law on Protection of Competition. Moreover, Articles 116, 117 of the BC of the Russian Federation directly form the material and legal aspects of granting preferences to economic entities in the form of state and municipal guarantees. At the same time, by exercising its control powers, the antimonopoly authority inevitably affects the relationship of the material order that takes place between the state or municipal authority and the economic entity that received the preference, in terms of adjusting the terms of existence, content and termination, which follows from the prescriptions of Article 21 of the Law on Protection of Competition.

According to the form of presentation, mandatory norms prevail in the legal institute under study, in particular, the Law on Protection of Competition, and only some of them are dispositive, for example, part 1 of Article 19 of the Law on Protection of Competition, which also enshrines the discretionary powers of officials of public legal entities in terms of the possibility of granting preferences to an economic entity.

Further, some of them are legalizations of direct action, others relate to blank prescriptions, for example, Part 3 of Article 19 of the Law on Protection of Competition. Moreover, the provisions of Chapter 5 of the Law on Protection of Competition quite often refer to the provisions of other federal, including named, laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, as well as define the powers of the subjects of the Russian Federation and municipalities to regulate and grant preferences to individual economic entities. But at the same time, the provisions of the law under consideration on preferences in relation to similar norms enshrined in other normative legal acts do not have priority. But can this be considered a disadvantage? It seems that there is not, because this allows the legislator to take measures more quickly to solve certain socially significant tasks through the use of the mechanism of preferences.

According to their functional purpose, the legal provisions of the analyzed institute are divided into norms - definitions (categories, concepts, principles, functions, etc.); norms defining the status of participants in relations on granting preferences (economic entities, bodies and officials of public legal entities, antimonopoly authority, etc.); regulatory and protective norms (art. 19 and 20, respectively, of the Law on Protection of Competition).

Summarizing the above, it can be concluded that the provisions of this legal entity cannot be included in the institute of antimonopoly regulation of the activities of bodies and officials of public legal entities or any other institutions of competition law, as some researchers admit, because they have a broader and more significant scope and is a separate legal institution of competition law. rights. But his research cannot be limited exclusively to the doctrine of competition law. Since this institution directly interacts with the prescriptions of other branches of law (state, financial, administrative, etc.), the effectiveness of its action should be determined based on the analysis of the correlation of its norms with both the general provisions of competition law and the legalizations of other branches of law.

Structurally, the legal institution of preferences consists of general and special parts. The provisions of the general part are of fundamental importance for the entire institution and are subject to application in all cases of granting and using preferences, unless otherwise provided by special rules. It includes the constitutional norms of Part 1 of Article 7, Part 1 of Article 8, Part 2 of Article 34, Article 74, Article 75.1 of the Constitution of Russia, the regulations of the above and other international legal acts, the provisions of Article 10 of the Civil Code of the Russian Federation, paragraphs 5, 20 of Article 4, Article 19 of the Law on the Protection of Preferences and Individual federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, as well as laws of the subjects of the Russian Federation and municipalities, defining, including additional, the goals and conditions for granting preferences to economic entities.

A special part of the legal institution of preferences includes norms that directly determine the subject composition and grounds of legal relations, as well as the procedure for granting state and municipal preferences and the implementation by the antimonopoly authority of control over their use and the application of measures of influence in case of violation by public authorities or business entities of antimonopoly requirements for granting and/or using preferences. It includes the provisions of Articles 20 and 21 of the Law on Protection of Competition, Articles 116, 117 of the BC of the Russian Federation, sub-paragraphs 5.2.9(3)-5.2.9(5) of the Regulations on the Federal Antimonopoly Service and paragraph 6.2 of the Regulations on the territorial authority of the Federal Antimonopoly Service, which consolidate the powers of the antimonopoly authority and its territorial divisions in the field of coordination of the possibility of providing preferences and the application of sanctions to persons who violate the antimonopoly requirements for their provision and/or use. In turn, these legal provisions are divided into two blocks, each of which, in conjunction with the norms of the general part, form independent subinstitutions of the legal institute of preferences: 1) granting preferences to economic entities; 2) applying measures of influence to public authorities and/or economic entities in violation of antimonopoly requirements for granting and/or using preferences, respectively.

The functioning of the competitive legal institute of preferences is based on legal principles that determine its method, tasks and functions that deserve special research.