12. Right ownership for subsoil in the Russian Federation. Ownership of water bodies.
Bosom - This is part of the earth's crust below the soil layer, and in its absence - below the earth's surface and bottom of the reservoirs and watercourses extending to the depths available for geological study and development.
Subraces within the boundaries of the territory of the Russian Federation (including underground space and minerals, energy and other resources contained in it are state property.
This means that the subsoil is seized from civil turnover. Plots of the subsoil cannot be the subject of transactions (purchase and sale, mena, donation, contribution, pledge, testament, inheritance) or alienate in another form. Only the turnover of the rights of use of subsoils, which may alienate or move from one person to another within the limits established by law are allowed.
As for the mineral and other resources mined from the depths and other resources, they constitute commodity and material values \u200b\u200bthat can be owned by various subjects - states, municipalities, citizens, legal entities.
The crime that constitutes the right of state ownership for subsoil: possession, use and disposal of them, within the limits of the territory of the Russian Federation are carried out jointly by the Russian Federation and its subjects.
In accordance with the legislation to the subsoil areas that are in federal property include those of them that are of national importance.
To ensure ensuring the state needs of the Russian Federation with strategic and scarce types of subsoil resources, the presence of which affects the national security of the Russian Federation, provides the basis for its sovereignty, as well as to fulfill obligations under the international treaties of the Russian Federation, certain sections of the subsoil, including those containing mineral deposits, may receive status federal objects.
On behalf of the state, the authorities of the owner are implementing its competent authorities: total competence (Federal Assembly, President, Government, Local Administrations) and Special Competence (Ministry of Natural Resources of the Russian Federation, Goscomecology of Russia, Federal Mining and Industrial Supervision of Russia (Gosgortkhnadzor), Federal Supervision of Russia on Nuclear and radiation safety (state station) and others).
These authorities carry out state regulation in the field of mountain relations, that is, public relations related to the geological study, the use and protection of the subsoil of Russia and its continental shelf, as well as due to the use and disposal of the waste of mining and related processing industries, specific mineral resources (peat, sapropeli, etc.), groundwater (preamble of the Law of the Russian Federation "On Subsoil").
State regulation of subsoil use relationships is carried out through management, licensing, accounting and control, adoption of regulatory acts.
According to Part 2 of Art. 9 The Constitution of the Russian Federation Earth and other natural resources (including water) can be in private, state, municipal and other forms of ownership.
Changing the river bed or other change in the location of the water object does not entail changes in the form and type of property to the water object, unless otherwise followed from the VC of the Russian Federation.
ATstate owned There are water bodies belonging to the right Russian Federation (Federal property), water facilities belonging to the right of ownership of its subjects (the ownership of the subjects of the Russian Federation).
Owned by the Russian Federation (federal property) are:
- surface water bodies, water areas and pools of which are located on the territory of two or more subjects of the Russian Federation;
- underground water bodies located in the territories of two or more subjects of the Russian Federation;
- water bodies, objects located on the territory of one subject of the federation, but necessary to ensure the needs of defense, security, federal energy systems, federal transport and other state needs, the implementation of which is related to the powers of the Russian Federation;
- water bodies that are an anatromic habitat (that is, coming to a spawning of salted waters in fresh) and cadomic (i.e., coming to spawn of freshwater in salty) species of fish;
- transboundary (border) water bodies;
- internal sea water;
- territorial seas of the Russian Federation;
- water objects that are particularly protected natural territories of federal significance or are part of these territories (for example, a wetland reserve);
- Water facilities, which are part of the territory of resorts or therapeutic and health facilities of the federal significance.
This list is not exhaustive.
Among the property of subjects The Russian Federation contains water bodies allocated at the coincidence of two signs:
- the location of their waters and swimming pools in the territory of this subject of the Russian Federation;
- The absence of a legally significant act of fixing the object on the above-mentioned reasons in the federal property.
Water facilities in private property Citizens and legal entities are characterized by small areas and the continuity of artificial water bodies, their unbound hydraulically with other surface water objects.
Signs of water objects of municipal property - It is the intended purpose for municipal needs, the isolation of the object.
Ownership of hydrotechnical and other water facilities and the right to use them are governed not only by the Federal Law "On the Safety of Hydrotechnical Facilities", but also a number of decisions of the Government of the Russian Federation. These objects have a special legal status. If the hydraulic structure has no owner or the owner, it is abandoned or canceled permission for its construction and operation, the owner of such a structure or the operating organization is responsible for its safety up to the moment the transfer of ownership of another physical or legal entity.
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To the problem of state ownership for subsoil
S.A. Kimelman
professor of the Higher School of Privatization and Entrepreneurship - Institute (VSPP), Head of the Department of Geological and Economic Assessment of the Moscow Branch of the Federal State Unitary Enterprise Enterprise "All-Russian Research Mountain Institute. A.P. Karpinsky "(FSUE" VEGEE "), Doctor of Economic Sciences (Moscow)
Semen Aronovich Kimelman, [Email Protected]
Legislative support for the effective use of ownership
With the start of market transformations in our country in the Law of the Russian Federation of February 21, 1992 No. 2395-1 "On Subsoil" (hereinafter - the Law on Subsoil), state ownership was established for the subsoil and the minerals contained in them. The main mechanisms of state regulation were still the licensing of the right to use the subsoil (deposit section) and special taxation of subsoil users. Both of these mechanisms were constantly corrected. The legislation on the subsoil and the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) made more than fifty changes and additions, which were mainly aimed at expanding the emphasis of subsoil users and an increase in the exhausted part of the income from the extraction and export of liquid minerals - oil, gas, precious minerals and non-ferrous metals, diamonds and other minerals.
From the economic position of one of the central problems of property relations for subsoil and mined minerals (hereinafter referred to as PI) is the ownership of revenues from subsoil use, in particular the ownership of the mountain rental. These relations determine the forms of use, ownership and disposal by deposits, the ways are assigned
the use and use of mined pi, mechanisms for the formation and assignment of mining, taxation of mining, as well as the conditions and results of the activities of mining enterprises.
On the one hand, the ownership form has a different impact on the conditions and results of the activities of mining enterprises. For example, the private owner is not able to (due to the lack of significant funds) to seriously engage in geological studies of the subsoil, create a developed social and production infrastructure (including transport, energy, housing and communal and other communications) in order to maximize the extraction of rent.
On the other hand, the magnitude of the extracted rent, the forms of its withdrawal and distribution depend on the form of the ownership of the mining enterprise. At the same time, it may not coincide with the form of ownership to the natural object. For example, LUKOIL oil company is a private institutional form, an open joint-stock company (OJSC), and sections of the subsoil on which it produces oil is state property.
Article 1.2 of the Subsoil Law is established exclusively
naya property for subsoil, under which it is understood by the joint property of the Russian Federation and its subjects. Since the joint property and joint management mechanism in Russian legislation is not designed and
whether will be developed in the near future, the first thing that practically needs to be resolved is to distinguish between state property for subsoil at the federal and regional levels with the possible allocation of municipal objects.
The second and, perhaps, the most important thing is the adoption of a legislative act on ownership of the mined minerals.
PI mining is a single process of extracting and processing mineral raw materials to the first commodity product. In the state law, there is no definition of the concept of "mining", as well as the unambiguous interpretation of the first commodity product by type of mineral raw materials. Until 2002, the concept of the first commodity product was used in determining the tax base for deductions for the reproduction of the mineral resource base (NSB) and payments for the extraction of PI.
In Article 337 chapters 26 of the Tax Code of the Russian Federation, as a rule, their first commercial resellers are understood as farmers. That is, besides the production itself, as the process of extracting mineral raw materials from the bowrs, useful fossils obtained in the process of processing and enrichment of mineral raw materials to the first commercial products. So, for oil under the "mined oil", the commercial oil obtained, first, in the process of dehydration, that is, separation of oil from a liquid bone produced from a well1, secondly, after stabilization and desalting, as a result of which the produced liquid acquires Quality of "commodity oil". In other words, it was legally established that the term "extracted oil" is equivalent to the term "commodity oil". For a number of other minerals, commodity products reach concentrates and, even as for gold, to alloy Dore (with a minimum content of impurities), from which affinent gold is obtained.
In accordance with paragraph 1 of Article 220 Civil Code Of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) processing process does not imply a change in the owner of the processing subjected to. That is, the new processing "thing" becomes the property of the owner of the materials. With regard to oil, oil contained in depths after it is extracted from the extracted liquid and processing into commodity oil becomes the property of the state, since it is the owner of the oil in depths. Nevertheless, in the same article, it was recorded that "if the cost of processing significantly exceeds the cost of materials, the ownership of the new thing acquires a person who, acting in good faith, has been recycling for itself." Thus, to determine the property to the farmed oil (with the specified reservation), it is necessary to know the "cost of materials", that is, the cost of oil in depths. There is no definite definition here, to consider the cost of resting minerals. But it must be installed, since Article 220 of the Civil Code of the Russian Federation provides for the following:
"Unless otherwise provided by the contract, the owner of the materials, which acquired the ownership of the thing made of them, is obliged to reimburse the cost of processing it to her face, and in the case of acquiring ownership of the new thing with this face, the latter is obliged to compensate the owner of the materials of their value (p. 2) ;
The owner of materials, which has lost them as a result of unscrupulous actions of the person who has completed processing has the right to demand the transfer of a new thing in his property and compensation for damages caused to him "(p. 3).
Thus, there are two options: the extracted pi are either in the state
1 from the well is produced by liquid, including oil and water. The specific weight of the water in the liquid increases as the deposit of the field and at the last mining stages reaches 90-95 percent.
or private property. Each of these two types of ownership of the extracted PI has its pros and cons. It is impossible to unambiguously assert that some kind of property is better or worse. It all depends on the current system of law, traditions, socio-economic relations established in a particular country. In the USA, England, Canada, Japan, France and Germany, there are state and private ownership of minerals that occur in departures and are considered as part of the real estate - land plot. In other countries, such as Argentina, Brazil, Mexico, Peru and Chile, the right of state ownership of mined minerals is recognized and enshrined
In Russian legislation, it is written that the pi is in the depths are in state ownership. However, in the process of their extraction (production) from the subsoil, they may be in various forms of ownership. Thus, in accordance with Article 1.2 of the Law on Subsoons, the mined minerals under license conditions may be located in any form of ownership: federal, constituent entities of the Russian Federation, municipal, private and other forms of ownership. According to paragraph 7 of Part 1 of Article 12 of the Law on the Subsoons, the ownership of the extracted PI should be established in licenses for the use of subsoil. However, at present, in the overwhelming number of existing licenses issued to subsoil users, not specified, the form of ownership of the extracted PI.
It seems to us far and deprived of the economic justification of arguments in favor of development in Russia predominantly only the private ownership of the mined minerals, which, according to a fairly widespread opinion, is allegedly more effective than the state. In our opinion, a primary role in choosing
reading this or that form of ownership of the mined PI should play an assessment of the economic efficiency of property management for the extracted PI and revenues obtained from ownership of these natural resources. Depending on the ownership of the mined minerals, it is necessary to "build" a system for the management of property for subsoil and the relevant rental relations in the field of subsoil use.
In case of private ownership to the extracted pi it is advisable:
Make changes to the current state of deprants, keeping its concept and structure;
Cancel Application of the Federal Law of December 30, 1995 No. 225-FZ "On the Production Decans" (hereinafter - the Act of the PSU) in the new sections of the subsoil, while maintaining it only for three existing projects - Sakhalin-1, Sakhalin-2 "And the Hargyan oil field;
To enter into the law on the depths of the depreciation of a rental payment in the form of a pivy, with limits (maximum and minimal) changes in the tax rate, the specific amount of which should flow from the valuation of the field, taking into account the current taxation system (DSN).
In case of private assigning mined, the market becomes the predominant regulator of mountain relations. Most of the rent will remain at subsoil users, the use of which will also be subject to market mechanisms.
Under state ownership of the mined pi, the general scheme for the funds of the subsoil and the system of rental relations should undergo significant changes, namely:
2 Kzoberin B. D. Mountain relations in Western Europe and America (England, Canada, USA, France, Germany). M., 2000. P. 49.
Access to subsoil use should be carried out exclusively under concession agreements (for prey PI) and contract agreements (on geological study of subsoil, searches and exploration PI);
Make significant changes to the SRP Law so that it becomes the main regulatory regulator of direct action;
Prepare, accept and put into action the law "On concessions when using subsoil";
Change the concept, prepare and adopt a new version of the Law "On Subsoil";
In subsoil use of DSN, replace the special tax regime, the basis of which is the withdrawal of rental payments;
Enterprises - subsoil users regardless of their organizational form of ownership, in fact, should become contractors under concession agreements or contract agreements;
The property of obtained PI should go to the state (on the terminology of the PSA Act), which independently in the person of the organizations authorized by him is engaged in the implementation of the mined raw materials. In this case, it disappears the need to establish export customs duties. The emerging price rate (as a difference between world and intra-cine value, multiplied by the production volume of PI) will (and should !!) Completely into the federal budget;
Change the system, mechanisms and the management structure of the state fund of the subsoil, which will need to equally control both the reproduction of subsoil and the mining and the mining of PI). This will require, in particular, the development and adoption of the Mining Code, which includes a set of rules for the production technology of various types of PI.
Thus, the advantages of the state ownership of the prepared PI over the private form of their assignment,
in our opinion, they consist both in more efficient management of property for the prepared PI and at the disposal of income arising from ownership of these resources. As a result, the subsoil user, firstly, regulatory investments are reimbursed (taking into account the regulatory costs), secondly, it is provided with normal profits (normal income on invested capital). Most of the mountain rent and the entire price year are available to the state, which determines the directions of their rational use related to the implementation of exploration, the development of new fields, the construction of industrial and social infrastructures and so on. A part of the resulting amount of rent state can leave the subsoil user, in particular, for investment in the search and exploration of new fields.
The law on deprants and other federal laws, the rules for the transition of ownership of the state as the owner of the subsoil to enterprises entitled to mining are not established. The establishment of ownership of the license (Article 12 of the Subsoil Law) in the absence of a legislative mechanism of such regulation generates uncertainty for investors and can lead to corruption.
It should also be noted that the existing mechanism for regulating the rights of ownership of mined minerals based on a license has some contradictions and civil legislation. So, the Civil Code of the Russian Federation established that natural resources that are not owned by citizens, legal entities or municipalitiesare state property. The ownership of property that has the owner (in this case, the state as the owner of the subsoil and the minerals contained in them) can be acquired on the basis of a transaction on the alienation of this property. At the same time, the ownership of
teles under the contract arises from the moment of transmission, unless otherwise provided by law or contract.
It should be noted that in its legal nature, the subsoil use license is not a contract, but is a special government permit, which includes the established form of form, as well as text graphic and other applications that certifies the right of its owner to use the subsoil site.
Undoubtedly, the undercoming legislation needs a large improvement, in particular, on the basis of the following fundamental principles.
First, the title owner of the subsoil, and therefore rental income, is the state, and more accurately - civil society.
Secondly, the main institutional forms of commercial use of stocks of deposits should be the concession (provision of only limited, established in the concession agreement of the rights of use of the natural object) and rent (transfer of property for temporary use). The prevailing form of determining the best user or the concessionaire should be open auction, and the main criteria for choosing the winner - compliance with the conditions specified in the concession agreement: maintaining and enaming the company's market value, the amount of rental payments (variables in time) and insurance of the subsoil user's responsibility.
Thirdly, after the implementation of extractive mineral resources learned from the depths of minerals, regulatory and technologically reasonable costs associated with the production, storage and sale of mineral raw materials, as well as regulatory income, the amount of which is established in the concession agreement under the auctions (auctions, competitions, international tenders, etc.).
Fourth, the creation of an economic mechanism forcing the company, not developing the
the field of deposits, refuse the right to use them, for example, the balance of assets in the form of available mineral reserves, rated at the market value or profitability of the extracted raw materials, and collection of property tax from this amount.
Considerations on the ownership of the mined minerals
As already noted, in accordance with Article 1.2 of the Subsoil Law on the Subsoils mined from the depths of minerals and other resources under the terms of the license may be located in the federal state ownership, property of the constituent entities of the Russian Federation, municipal, private and other forms of ownership. In turn, the subsoil and the relevant minerals in the depths are in state ownership. According to the well-established views, natural resources are as those when they are in their natural environment. In other words, the ownership of resources, based on such logic, is identified with the right of ownership of the subsoil, that is, the resources of the subsoil, only being in the depths, are in state ownership. Uglassically (de facto, but not de Jura) it is believed that the mined resource is no longer a natural resource, and allegedly from an economic point of view is products produced by the user of natural objects, in particular subsoil user.
However, in fact, in economic reality there is a transformation of the same object of the material world, depending on the location of it: in the depths - resource, on the day surface - products. At the same time, it can be about a certain transformation of the resource in the "different kind of property", and the legal fact that determines the specified transformation process is to extract the subsoil user of minerals on the day surface.
The transformation described cannot serve as the basis for the transfer of the right to
. So, in jurisprudence, we can meet models that may indicate the opposite. At the same time, the material expenses and labor costs of persons aimed at creating a material object or a property of the property will not entail an obligatory occurrence of the latter ownership of such an object. As a bright example, such private institutes such as representation, including actions in someone else's interest without failure (chapter 10 and 50 of the Civil Code of the Russian Federation), in a row (ch. 37 of the Civil Code of the Russian Federation), trust management of property (ch. 53 of the Civil Code of the Russian Federation).
Also in a positive right, along with the concept of "resources", you can find the definition of minerals. It is the latter that mentions the law on the depths as an object of ownership, at the same time considering them as resources. At the same time, following the logic of the law, resources can also be "mined", which does not comply with the assumption that we have already thought based on the economic theory that the resource has not has a resource, but is products.
The civil legislation of the Russian Federation establishes that the change in the position of things in space is not the basis for the termination of the right of ownership (ch. 15 of the Civil Code of the Russian Federation). Moreover, it would be contrary to the essence of ownership as a real one, the meaning of which is that the right follows the thing.
However, economic factors such as labor and capital that cannot be taken into account when building a rational model of certain legal relations are used to extract minerals on the day surface that are not taken into account when building a rational model of certain legal relations. In particular, the work spent related to the impact on the object of the material world, in antiquity caused the transition of ownership of one person to another. Here it is enough to remember the longtime dispute of two law schools of ancient Rome - Sabinians and the Purchants, about who is the owner in the event that a person from someone else's material
labor made a completely new thing. At the same time, the opinions of these schools on this issue were diverged. Conservative Sabinians, who have already been guarding already, already without that disintegrating labor, argued that ownership should remain with the owner of the material. The procents, more responsive to the requirements of commodity-money relations developed in ancient Rome, said that the owner should be the one who processed the thing, but provided compensation for the owner of the material of its value.
Currently, the problem of processing in the civil legislation of the Russian Federation, as already noted, the norms of Article 220 of the Civil Code are devoted to the norm. So, in accordance with paragraph 1 of this article, unless otherwise provided by the contract, the ownership of a new movable thing made by the person by processing the materials belonging to it is acquired by the owner of the materials. However, if the cost of processing significantly exceeds the cost of materials, the ownership of the new thing acquires a person who, acting in good faith, made processing for himself.
Given the outlined, civil law of the Russian Federation puts the emergence of ownership of the right to dependence on the technological process - processing.
The process of mining technologically reminds processing. So, production does not end with the extraction of minerals on the day surface. In addition to direct extraction of minerals from the subsoil, the latter are subjected to primary recycling, as a result of which the first commercial production is obtained. It becomes clear why the law on the PSU operates the concept of "products", implying the first commercial products produced from mined minerals.
In turn, the law on depths, despite the fact that changes were made
after the introduction of part of the first Civil Code of the Russian Federation, does not concern the problems of mining and their processing, and therefore the whole reservoir processing processes of the mined mineral raw materials in the first commercial products of its redistribution (in commodity products) are left beyond the legal regulation. The absence of the norms in the law governing the technology of mining and processing mineral raw materials into commercial products, generates a serious problem related to the definition of ownership of those learned from the subsoil and in the future the most primary processing of minerals. At the same time, the law does not establish that direct extraction from the subsoil and primary processing is a single technological cycle.
In turn, leaving beyond the law on the depths of the relevant relations does not exclude the application of the Russian Federation to the latest norms of the Russian Federation and, in particular, Article 220 of the Civil Code of the Russian Federation. At the same time, there are differences in civil law and legislation on the depths of the Russian Federation, since the law on the depths, in fact, timed the moment of ownership of the mining (the concept is normally extremely uncertain), and the Civil Code of the Russian Federation -K processing. In addition, the licenses for the right to use subsoil should indicate the provisions regarding the entity of ownership of the mined minerals. Moreover, even if the license indicates the right of ownership of the subsoil user to the Pi produced by him, then in the same license it is necessary to indicate the reimbursement of the subsoil user of the value of the subsoil subsoil, which, according to the Subsoil Law, are state ownership.
In this vein, the question arises, in which case, the relevant provisions of the Law on the Subsoil and the RF Code of the Civil Code on the acquisition of the ownership of the mined mineral resources should be applied. For
this analysis of the practice shows that neither the other norms are carried out: in the overwhelming majority of licenses, the owner is not specified, produced by subsoil use of mining costs (it was when determining the owner for mined minerals) in licenses are also not normalized and not established in connection with The subsoil user actually assigns minerals and as a general rule automatically violates the norms of Article 220 of the Civil Code of the Russian Federation on processing (if the value of the material (minerals) significantly exceeds its processing costs).
At the same time, as part of the analyzed, the problem should consider the possibility of integrated use of legal structures applied by these branches of legislation. It seems that the definition of the owner of the mined minerals should be based on the norms of Article 220 of the Civil Code of the Russian Federation. Thus, depending on the nature and conditions of the development of the subsoil, the right to ownership of the extracted raw materials will be fixed behind different subjects: in one case it will be a subsoil user, in another-state state. But in any case, the state as the owner of materials (minerals) should be made compensation in the form of their value, the definition of which, by the way, was not established in any law. Or, on the contrary, the subsoil user must reimburse the costs of processing, if the first commercial products of processing mineral raw materials are maintained in state ownership.
However, in order for the license for the right to use subsoils, the owner was marked, the presence of rules is required, on the basis of which it would be possible to determine under what conditions the production costs associated with its conduct will exceed the cost of minerals themselves. Such an example, without appropriate methods for evaluating the resources of the subsoil, as well as without the rules of mining, with reasonable regulatory costs, it is impossible to do.
In addition, it should be noted that in order to determine the owner on the mined minerals on the principles defined in Article 220 of the Civil Code of the Russian Federation, it is important, the question associated with the moment of material evaluation: we will evaluate it in the depths or "at the exit", after processing, There will be whether we will evaluate the "new thing" (this is such a phrase applied in Article 220 of the Civil Code of the Russian Federation). In the latter case, the cost of the extracted PP is higher than the value-added processing compared with the estimate of the cost of Pi in depths.
At first glance, based on the meaning of Article 220 of the Civil Code of the Russian Federation, such an assessment should be carried out at the time of finding minerals in depths. However, if technologically separated the process of processing from the material, the latter will remain as such, and even after the processing, the material will change only its qualities. Thus, the assessment in accordance with Article 220 of the Civil Code of the Russian Federation, in fact, can be carried out postfactum, after the end of processing is a physical impact on the thing. It is in the latter case, in our opinion, the state wins significantly. But here it is possible to argue that the cost of material (minerals) is paid just due to its processing (mining). In turn, from a literal understanding of the norms of Article 220 of the Civil Code of the Russian Federation, the fact that the material and work on its transformation is still evaluated separately.
By the way, from the accepted approaches to the method of determining the cost of minerals in depths depends on the assignment of the mined PI (more precisely, their first commercial products) to the property of the state or subsoil user according to the criterion of "substantial" excess of the cost of processing over the cost of Pi in depths. In this regard, we note that the cost of processing is dramatically different in the extraction of different types of minerals. Thus, the cost of oil extracted on the surface in the composition of the produced liquid is about 90 percent of the price of commodity oil. Cost, for example,
copper in the mined ore extracted on the day surface, to the processes of ore enrichment and obtaining copper concentrate from it is only 10-15 percent, and gold is less. We note that we are not talking about the cost of processing, that is, lifting from the bowels on the daily surface of the oil liquid or ore. The cost of processing in the cost of oil, copper or gold is, as a rule, 1-2 percent and not more than 25 percent.
As a result, it is necessary to once again touch the question related to the importance of the legislative definition of the technology of mining and processing mineral raw materials into commercial products. The norms of the Subsoil Law require to identify the owner of the mined minerals, which contradicts the tax (ch. 26 of the Tax Code of the Russian Federation) and the Civil (Art. 220 of the Civil Code of the Russian Federation) legislation, since after production, technologically comprising processing, a new thing is created - the first marketable products . Thus, the license must mention the first commercial products, as it is properly done in the law on the PSA, as the newly created thing. In any case, before such a thing is created, the state remains the owner of minerals, since the thing is not created, the processing is not over. In this regard, it should be clearly determined to clearly determine that only when the processing technology is completed and a new thing appears -Pasive product products, can decide the owner on this thing based on the provisions of Article 220 of the Civil Code of the Russian Federation, which is impossible without making relevant changes to the legislation of the Russian Federation About subsoil.
Legal and economic mechanisms of state regulation of property relations for subsoil and mining rente
The experience of the formation of Russian subsoil use in the conditions of the market shows that the state has not yet created the economic mechanisms of EF
fective management by the fund owned by him. The current prescription of the law on subsoils ambiguously determines the property to the plots of subsoil and "cuts" the rights of the state as their owner. Essentially, this law conveyed the right of state ownership for subsoil in the hands of private companies and brought them an authority to manage and even monitor subsoil use.
The adoption of the Decoratement Act in 1 992 did not contribute to the establishment of a mechanism of accounting, objective calculation and withdrawal of natural rent to the state treasury, since they were not introduced (and still did not happen) taxes, more precisely tax payments, rented.
It is significant that shortly before his resignation, the Chairman of the Government of the Russian Federation, Mikhail Kasyanov, in an interview with the correspondents of the newspaper Vedomosti, stated: "I do not understand what kind of natural rent is a conversation. I do not have such a term. And, in my opinion, no one of the ministers have such "3. The government "killed" the raw material oligarchs to assign moneyless money (that is, Renta) and did not interfere when the rent was used mainly for personal enrichment of oligarchs and individual officials.
Introduction to the Tax Code of the Russian Federation From January 1, 2002, the mineral extraction tax (NPPI) only partially solved the problem of withdrawal in favor of the State Revenue Revenues of Petroleum companies. Despite the fact that in 2001, on numerous parliamentary hearings, all protruding (except ministerial officials and deputies) criticized the failure of the NPPI, justified the inability to "catch" the differential rente, the NPPI was still introduced.
Back in the first years of market formation, in 1995-2002, in Russia, the owners of major subsoil user companies have prolobed supplements and changes to the law on subsoil, as a result of which already
in 2002, his editorial board became similar to the first (1992) just as, figuratively speaking, a wide fast-flowing river and barely flowed. If the initial edition of the law in aggregate with the tax legislation currently allowed a small ruffle of mountain rent, which flows into the hands of license owners, then due to the current version of the law and the tax legislation of the rent burst out from the state's income in a full-flowing flow.
State policies and the legal and economic mechanisms of rents for the budget and subsequent distribution to the budget and subsequent distribution affect and predetermine the characteristics of the emerging system of social development. If the mining rente is not withdrawn in favor of the state and society, this means its transmission to the functions and sustainable measures. People's orphanage continues to concentrate in a very narrow circle of persons, increasing the number of poor people. It is clear that society should strive for the exact opposite - reduce the number of poor fellow citizens, while increasing the number of middle class people. And of course, selective testing of the subsoil must be excluded, providing momentary high incomes.
Thus, one of the main objectives of the state policy in the field of subsoil use can be formulated: obtaining for a long period of time of uniform maximum possible income from the exploitation of the state fund of the subsoil, realizing it for public benefit.
Rental-oriented economy should solve a two-way task: first, creating incentives to improve the efficiency of production and growth of rental income, secondly, the use of such economic mechanisms that, while respecting the balance of interests of the state and subsoil users, would provide
receipt of the weighty share of rent to the consolidated budget.
Currently, the problems of subsoil use and reproduction of the mineral resource base (SME) do not pay due attention. For some reason, the opinion was rooted that oil and mining companies as more devastating (than the state) owners themselves will take care of new fields, the growth of stocks, as it is necessary first of all to them, and not to the state. That is why since 2002, the deductions for the reproduction of SMEs and the benefits for investing the part of the profit in production are canceled. Now the "laundering owners" complain that they have no funds for the reproduction of SMEs and eventually sharply reduce the costs of geological exploration.
Any tax regime in which significant amounts of mining rents remain in the hands of large private applicants, does not fulfill their purpose, because it does not increase the well-being of citizens. Conducting a line for facilitating the tax burden, the state is obliged to differentiate enterprises of different industries. The tax burden reduction policy should not be automatically transferred to reducing the rent, since it should not be attributed to tax payments. With a decrease in taxes on the enterprises of the non-fermentation sector, it is advisable to increase the level of rents, leveling the profitability of the production of relevant sectors and contributing to the overflow of capital.
It is necessary to ensure the use of an integrated approach, the development and improvement of the efficiency of mutually related legal and economic mechanisms of state administration of subsoil use, among which mechanisms are allocated:
1) access to subsoil use - licensed-permissive and (or) contractual civil access to subsoil areas;
2) ownership of the mined minerals, mining property and
geological information;
3) the tax system and the allocation of rental payments;
4) state regulation:
Customs - payment of customs duties as part of price rent, stimulation of exports not raw materials, but its products processing;
Price (in particular, it is necessary to regulate and reduce the price disparistics in natural monopolies);
Antimonopoly - setting the size, number of subsoil sections and reserves, concentrated from one subsoil user, control over the activities of territorial mineral resource monopolies;
Socio-economic - effective use of rental revenues in the interests of the whole society;
Investment - the creation of favorable conditions for investment in subsoil use of domestic and foreign capital;
Balancers - optimization of reserves of mineral reserves, production and consumption of mineral resources, fuel and energy balance;
Institutional - the creation of special institutions, geological and mining bodies, state-owned public companies, public-private partnerships, etc.
The listed mechanisms should be the basis when revising mountain, land, forest, tax, customs, budgetary and other legislation.
Let us dwell on the basic characteristics of the most important mechanisms from the position of their functioning in the Rental-oriented Economy of Russia.
Access to subsoil use
This mechanism is the basis of economic and legal relations between the authorities (state as the owner of the subsoil) and the business (subsoil users), which it transmits limited in
in accordance with the laws of the right to use the subsoil site for searches, exploration, production of PI or other purposes.
World practice has developed two main legal mechanisms to attract subsoil users to exploitation of sections of the state fund subsoil:
1) based on administrative law;
2) on the basis of civil law.
At the same time, the legislatively established mechanism for regulating access to subsoil use proceeds from the concept and target orientation of the state economic development, that is, from the definition of a place that the mineral resource sector occupies in its economy. If Russia is predetermined to remain the country with raw orientation for a long time, the mechanism of access to subsoil use is the initial stage of building a rantoriented economy and predetermines the subsequent market mechanisms of the state device and management. In other words, in Russia, access to the depths should be determined by licensing agreements and agreements (agreements) on the sale of products, the conditions of which would ensure optimal rental extraction on the basis of the most effective technological scheme of the field development, the use of progressive methods for increasing oil recovery, use of modern equipment, equipment and equipment and t. n.
Public policy in the field of subsoil use cannot be conducted outlined with economic policies. Subsoil use cannot be isolated from reforming the tax system, creating a favorable investment climate, tariff price regulation of natural monopolies, the procedure for forming income and expenses of federal and regional budgets. It must, on the one hand, organically fit into the context of the socio-economic transformations conducted in the country, on the other, to the necessary to predetermine such transformations.
In Russia, a unique dual, at first glance conflicting the system of relations of subsoil use, namely:
License - based on administrative law in accordance with the law on deprants currently existing since 1992;
Contractual - on the basis of civil law in accordance with the law on the PSU applicable since 1995.
In world practice, such duality of relations of subsoil use exists only in one state - Venezuela. In all other countries of the world, one system of access to the depths is adopted: either licensed, or contractual, based on concession agreements or their varieties - product sharing agreements.
Types of concession agreements are diverse. There are both traditional, newly used and modern upgraded. Separately, it is possible to distinguish the so-called contractual concessions to which products on the sale of products and government service contracts (contract agreements). They, in turn, are divided into risky when the state transfers the risk payment (for example, the unkinds of the deposit) at the concessionaire, and risk-free, when the state takes risks to itself and finances the work performed under the contract agreement, regardless of the success of the geologicoophysical work.
The Russian model of the SRP is largely outdated, it is not adapted to the current economic situation in the country, the peculiarities of legislation on subsoil, investment and tax legislation, which makes it non-competitive investment in the global market. That is why after the adoption of the law on the SRP, no sharing agreement entered into force, since today the license model is more preferable for subsoil users.
One of the main, but very significant differences between the contractual relationship of subsoil use in the context of the SRP is that each object the state signs an impressive agreement in the amount of agreement (agreement), in which it sends all the conditions for subsoil use, including property relationships and terms of taxation. Control over the implementation of the terms of the agreement is entrusted to the Governing Committee, including representatives of the state and subsoil user (investor) on the parity foundations. The most important task of the Governing Committee is the approval of the annual program and work rate, the actual execution of which is also monitored. This obliges a subsoil user to conduct a separate accounting accounting, down to the section of profitable products on each SRP object (that is, on each site of the subsoil) and only the works that are performed in accordance with the approved program and estimates.
In our opinion, the presence of an organ on each object state control caused the rejection of Russian subsoil users, especially large oil companies. That is why the adoption of the Federal Law No. 65-FZ4, in essence, means the refusal of the application in our country of the SRP regime. The presence of two mechanisms for access to depths (administrative and contractual on the basis of the SRP) in Russian conditions it seems to us quite justified, since the Russian Federation has a huge territory, subsoil use objects are removed from each other. It is only important that in the same region there are no adjacent sections developed under different subsoil use modes. And it is already completely unacceptable when at the same deposit in one of its part, mining is under license, and in the other in the SRP.
The license mechanism of access to depths in Russian execution is not a purely administrative resolution. Along with this, it provides for civil and legal relations recorded in the agreement constituting an integral part of the license. The Russian SRP mechanism is also not a purely civil-contractual act. After signing the Production Sharing Agreement, the right to use the appropriate subsoil area is certified by the license. That is, both Russian access mechanisms for subsoil use intersect with each other and provide for the mandatory design of two documents - licenses and treaties, in contrast to world practice, which does not allow them to align, since they have different legal nature.
If you approach the purely formal legal positions, both in Russia the subsoil use mechanism acting in Russia almost do not differ from each other. The license agreement can be made in the image and similarity of the product sharing agreement. Nevertheless, the laws about the depths and the PSA are distinguished by the norms in them, which determine the important conditions for the transfer of sections of the subsoil to use, namely:
Property for mined minerals, mining property, geological information, etc.;
Creating a liquidation fund, which is still missing under licensed subsoil use, and without it after 10-15 years, when the terms of most issued licenses will be completed, financial resources will not be accumulated;
Accounting for the financial and economic activities of the subsoil user or investor and its statements before the state for each section of the subsoil
4 On making an addition to the second of the Tax Code of the Russian Federation, making changes and additions to some other legislative acts of the Russian Federation and recognition by invalid the strength of some legislative acts of the Russian Federation: Federal Law of June 6, 2003 No. 65-FZ.
(there is no appropriate position in the depth law);
Reimbursement of harm caused to the user subsoil, or, on the contrary, the state (there is no corresponding provision in the law on the PSA).
In one country there can be no differences in the right of ownership of the mined minerals in administrative licensing and in the conditions of the SRP. And in the other case, the company or the consortium of companies is transferred to the right to use the Subsoil State Fund section. But in the context of the SRP, the law establishes that the mineral raw material has been transferred to the property of the investor, according to the value equivalent corresponding to the recoverable costs and its proportion of net profit. Why then, with administrative resolution, in the license agreement, the possibility of transmission under the license to the ownership of the subsoil user of 100 percent of the mineral raw materials produced by it (Article 1.2 of the Subsoil Act) is allowed. It is absolutely clear that with any mechanism for accessing the subsoil system of subsoil use, the condition of subsoil use must be identical when it comes to the right of ownership of the mined mineral resources created by the subsoil user, etc. Differences between these two subsoil use mechanisms are as follows:
In a special tax mode, in which part of the payments is replaced by a section of profitable products;
In guarantees the invariabilities of tax rates for the entire period of the SRP;
In the rules of compensation, including accelerated compensation, capital investments instead of the licensing of the norms of depreciation.
Legal regulation of relationships
subsoil Use
Subraser is one of those few foundations.
the components of the national wealth, which, according to the Subsoil Law, is state ownership and is not subject to privatization. Who owns and disposes of the property, he ruins it and receives income from its use. Under the income here and hereinafter referred to the means entering the state from subsoil use in the form of taxes, fees, customs duties, payments. In the separate position there are rental incomes, but there is no such concept in the existing legislation.
The rent is an objective reality, it always occurs when mining is mined - this statement does not cause any objections. From here, it is logically an unequivocal conclusion that the owner of the State Fund of Nedra is the owner of the rent. But this seemingly obvious statement causes fierce disputes, and sometimes sharply negative attitude. Thus, the former Economic Counselor of the President of the Russian Federation Andrei Illarionov believed that "Nature Rent is one of our biggest misfortunes. Especially the one that is obtained when implementing fuel, including in the world market. "5
But it is the natural meter and the ownership of it underlies the construction of a rantoriented economy. The total amount of rent and state management of its formation, admission to budget revenues and expenditure dependes not only and not so much from ownership of the depths, as from the ownership of the mineral resources learned from the depths and related rights of ownership of geological information and mountain property. For this reason, the ownership of subsoil use, depending on the object, is divided into four components:
1) Property for subsoil and reserves in depths of minerals;
2) Property for mined minerals;
3) property on mining property;
4) Property for geological information.
Property rights in subsoil use from the standpoint of the construction of a rantoriented economy ownership of subsoil and stocks
mineral
In accordance with Article 9 of the Constitution of the Russian Federation "Natural resources can be in private, state, municipal and other forms of ownership," that some extent contradicts the sub-clause "B" of paragraph 1 of Article 72 of the Constitution of the Russian Federation, where it is determined that "in joint venture The Russian Federation and the constituent entities of the Russian Federation are ... Questions (allocated by the author. - S.K.) holds, use and orders of land, subsoil, water and other natural resources. "
Although the Constitution of the Russian Federation admits various forms of ownership of natural resources, Article 1.2 of the Subsoil Act is definitely established that "subsoil within the borders of the territory of the Russian Federation, including the underground space and its mineral resources contained in the depths of minerals, energy and other resources are state ownership." And then in the same article the excerpts given by us are repeated from Article 72 of the Constitution of the Russian Federation. The concept of "state ownership" means that the subsoil is also owned by the Russian Federation, and at the same time owned by the subject of the Russian Federation, that is, in joint venture. But in the Constitution of the Russian Federation, only certain issues of ownership of the depths of depreciation and the pII contained in them are attached. Therefore, this rate requires the construction of a mechanism for its implementation, which should be contained in the legislation on the depths.
It is necessary normative legal solution At least three major problems:
1) the separation of state ownership for subsoil for the Federal property and the ownership of the constituent entities of the Russian Federation. To solve this problem, various options were offered, namely:
All areas of subsoil with all minerals, except for common minerals (OPI), attributed to federal state ownership, and sections of subsoils containing OPIs - to property of constituent entities of the Russian Federation;
Establish the criteria, for example, by the size of the deposit (or in the volume of reserves PI), etc.;
Determine the list of strategic pi, which establishes exclusively federal state ownership;
Sign with each subject of the Russian Federation contracts (agreements) with an attachment of the list of deposits transmitted to their property.
After long discussion, the first one of the listed options is adopted;
2) Separation of property triads (possession, use and disposal) in the levels of executive. For example, the use of conveying subjects of the Russian Federation. But from this triad of legal relations, it is impossible to identify any one, because the essence of ownership is lost;
3) the distinction of government property management functions, which include regulatory (including rulemaking), executive and control functions. For example, regulatory functions are attributed solely to the powers of the Russian Federation, most control functions also consolidate the Russian Federation, but individual control functions can be transferred to the level of constituent entities of the Russian Federation. As for the executive and administrative
functions, then they can be distributed among the Russian Federation and its subjects by mutual agreement, while the subject of the Russian Federation must have relevant financial, technical and personnel means for executing the powers transmitted to it.
Property for extracted useful
fossils
Legislation on subsoilies has contradictory, uncoordinated norms regarding ownership of the extracted PI. Thus, in Article 1.2 of the Subsoil Law, it was found that "mined mineral resources and other resources under the terms of the license (highlighted by the author. -S.K.) may be in federal state ownership, ownership of the constituent entities of the Russian Federation, municipal, private and other ownership. " As can be seen, the design of Article 9 of the Constitution of the Russian Federation has been repeated with reference to the fact that the ownership of the extracted PI is established by the state under licensing a specific section of the subsoil. In paragraph 7 of Article 12 of the Law on Subsoils, it was prescribed that the license must comply with the "coordinated level of mineral raw materials, the ownership of the mined mineral raw material (highlighted by the author. -S.K.)."
It is not clear why the same constitutional norm (art. 9) is interpreted in different ways: the state ownership of them is recorded against the subsoil, and any form of ownership is allowed from the depths of mineral resources. Why is state ownership suddenly transformed into private or any other property? In what economic logic, the owner of the subsoil voluntarily agrees to part with the property for mined minerals? The state owns a plot of subsoil, where, let's say, there is a natural gorge nugget weighing a few kilograms. The license owner learned this nugget. Is he entitled to take him to himself? Figuratively speaking
patta and became a millionaire? But it was precisely this economic absurd basis to the norms of the Subsoil Law, since the state, issuing a license, allowed to assign their property to the subsoil user.
It turns out that the current state of deprane has turned licensing in the distribution of state ownership for subsoil.
By the way, there was no such mechanism for the distribution of ownership in the first edition of the Subsoil Law: there was no article 1.2 with a variety of ownership forms to the minerals learned from the depths, and the provision of paragraph 7 of Article 12 sounded as follows: "The license must contain ... a consistent mineral mining level raw materials, as well as an agreement on his share distribution ... (allocated by the author. - S.K.) "(clause 6 of Article 12 of the Decoratement of 1992). This initial license requirement must be restored in the Subsoil Law. In other words, the owner of the subsoil at the issuance of a license coordinates the part (share) of mined minerals (in physical terms), which is transferred to the ownership of the entrepreneurial structure (subsoil user). It is such a design of ownership of the mined PI laid in the SRP Law, which was introduced in 1995. But then, changes were made to Article 12 of the Subsoil Law, and article 1.2 appeared in it. Such simultaneous inculcation is surprising.
By the way, in the overwhelming majority of current licenses, it is not indicated by the ownership of the published PI. But it is unofficially believed that those learned from the depths are transferred to the ownership of the subsoil user. The lack of a legislative mechanism for regulating the right of ownership, principles and criteria for the equity distribution of extrreced PI generates uncertainty for future subsoil users.
Ownership of property that has the owner (in this case, the state) can only be acquired on the basis of an alienation transaction
of this property. At the same time, the moment of ownership of the ownership of the acquirement under the contract occurs since its transfer, unless otherwise provided by law or contract. In the same way, the procedure for transferring and the ownership of the ownership should be established. At its legal nature, the license for the use of subsoil is not a contract, but is a special government resolution (including the established form of form, as well as text, graphic and other applications), which certifies its owner's right to use the subsoil site.
Therefore, it is necessary to eliminate the specified gap in the submission law, to legally establish a mechanism for the occurrence of ownership of users of the subsoil for the mined minerals, the procedure and criteria for the section of this property between the state and the entrepreneur.
Ownership of mining
In the current edition of the Law on Subsoils, there is no mention of mining property. All attempts to make an article about the mining property in this law, its list and the right of ownership have been completed.
With the license mechanism of access to subsoil use, the mention of mining property is available only in the Regulations on the procedure for licensing the use of subsoil 16, subparagraph 19.7 which says: "Enterprises whose activities will not be extended by the license, are obliged to transfer to new owners of the License and Technical Documentation for those who are in their jurisdiction subsoil, preparatory and operational mining, immovable mining property (highlighted by the author. - S.K.). The procedure and conditions for this transmission, the amount of compensation payments for previously produced costs are determined by the Treaty between the former and new subsoil users. "
Oddly enough, this sub-clause is still valid: subsoil users consider their immovable mining property with their own, that is, private, property.
However, here not everything is so definitely, as representatives of private property are presented to mining property. In the article
11 of the Law on the SRP "Property ownership and information" in accordance with world practice, the following regulatory structure was introduced: "Property,
the newly created or acquired by the Investor and used by him to fulfill work by agreement is the property of the investor, unless otherwise provided by the agreement. The ownership of the specified property can move from the investor to the state from the day when the cost of the specified property will be fully reimbursed (allocated by the author. -S.K.), or from the date of termination of the agreement, or with otherwise agreed by the parties on the terms and in order, which are provided for by the Agreement. At the same time, during the term of the agreement, the Investor provides an exceptional right to use such property at no cost for work on agreement ... ".
In the above wording key phrase to an understanding of property to mining property is the reimbursement of the state of property value. It was the reimbursement of the costs and cost of mining property that is one of the most important principles and mechanisms for the construction of a rantoriented economy.
We emphasize another major circumstance, closely related to the right of ownership of mining property. Suppose that the state fund authority has begun the procedure for terminating the right to use the subsoil (license selection) on the basis of paragraph 3 of Article 20 of the Law on Subsoons due to the "systematic violation by the user's subsoil of the established rules for the use of subsoils." And let's say it is
6 Regulations on the procedure for licensing the use of subsoils: approved by the Resolution of the Supreme Council of the Russian Federation of July 15, 1992 No. 3314-1.
about the unique field of oil and gas (such as Urengoy or Samotlorskoye deposits), on which tens of thousands of operational wells are drilled, the total value of which is billions of dollars. If these wells are in private ownership, then where does the state take funds to buy out this private property? Or, in this case, one can convey on the basis of trading such large sections of the subsoil to another subsoil user under the contract with the former subsoil user in accordance with subparagraph 19.7 of the Regulations on the procedure for licensing the use of subsoils? The answer is one: in no way if private property has been installed on mining property.
Property for geological
information
An integral part of geological exploration is geological information collected in the process of conducting work, its subsequent analytical processing and interpretation. For this reason, in a somewhat exaggerated form, the geological exploration process is often called the information process (and the field itself is identified with the concept of "information on the field").
With respect to the right of ownership of geological information, there are various opinions, the discussion about its belonging continues until now. The opinion was established that the owner of geological information is the one for whose funds it was obtained. Also, disputes are not stopped whether it can generally be a geological information to be the subject of sale, pledge, etc. or can be transmitted only to temporary use.
The legislation on subsoils in different ways interprets the concept of geological information, ownership (in particular the right to use) on it. In paragraph 7 of Article 12 of the first edition of the Subsoil Law, it was recorded that the license should contain a "agreement on the rights to geological information obtained in the course of use of subsoil." Here is key
is the word "rights", which can be viewed in different ways, for example, the right of ownership or the right to use. However, as follows, the word "property" was added to the same item as follows, the word "property" and it turned out that the license should contain: "Agreement on ownership of geological information obtained in the course of use of subsoil." This formulation remains in the last (current) editorial board on the depths. It turns out that at present, geological information may be in any form of ownership.
In some contradiction with the article
12 Enters Article 27 of the Decoratement of 1992, which determines that geological information "is the property of a customer who finanted work (allocated by the author. - S.K.), as a result of which this information was received, unless otherwise provided by the license for the use subsoil. In the future editions of the Subsoil Law (starting in 1995) from Article 12, the above paragraph was excluded. But at the same time, it is enshrined that geological information may be "in state ownership or owned by the user subsoil." And further specifizes: "Geological and other information about the subsoil received by the user's subsoil at the expense of its own funds is the property of the user subsoil (allocated by the author. - S.K.) and is provided by the user subsoil on the established form to federal and relevant territorial geological information funds with determining the conditions for its use, including for commercial purposes. "
The right to ownership of geological information generates the right to property law on the depths. The subsoil area and minerals contained in it are state ownership, and the geological and other information on these minerals can be private property. And if the owner of this information does not want, then the state is not
it is entitled to set the plot of subsoil for trading and give the license. It turns out that the state is forced to issue a license for the extraction of the owner of geological information.
The property is completely different in geological information in paragraph 2 of Article 11 of the SRP Law: "All primary geological, geophysical, geochemical and other information, data of its interpretation and derivative data, as well as samples of rocks, including core, reservoir fluids The investor received as a result of the work under the agreement belongs to the state of ownership of the state (highlighted by the author. - S.K.). In compliance with the conditions for the confidentiality provided for by the Agreement, the investor has the right to freely use the specified information, data and samples in order to fulfill the work by agreement. Consequently, in the PSA mode, as in the case of mining, the principle of reimbursement of exploration costs from the cost of mined minerals, as well as the subsoil site, in state ownership.
A similar mechanism must act under license to access the use of subsoil. If a license for exploration and production is issued, then the user of the subsoils compensates for its exploration costs after the realization of mined minerals belonging to the state of ownership. If a search license was issued for the geological study of the subsoil and the subsoil user following the results of the search and agency opened the field, he is obliged to sell appropriate geological and other information to the state. Its value is determined by regulatory costs, taking into account the normal profits and the inflation coefficient. In this case, the ownership of geological information after its purchase
it passes the state, and it can set the corresponding plot of subsoil for trading.
E.A. Kozlovsky and V.Yu. Zheninko7 also consider geological information (they call it "information resources") by state property and include it in accordance with Article 130 of the Civil Code of the Russian Federation to movable property. More correct, in our opinion, is the assignment of geological information to immovable property, since geological information is inextricably linked to a specific section of the subsoil, it is an integral part. As in the case of mining, geological information is a single integer with a plot of subsoil and with immovable local property. Thus, when the sediment section is transferred to the use of geological information, it follows and follows the fate of the main thing (Art. 135 of the Civil Code of the Russian Federation).
The authors mentioned propose the right to use geological information to issue in the form of a separate license. This is not appropriate. Instead, an act of transferring to the subsoil user of geological information should be made to the subsoil use license, which becomes an integral part, as well as the mining act and the acts on the transfer of mining, for example, operational wells for oil and gas production.
Appropriate changes should be made to the first paragraph of Article 11 of the Act on the depths, which lists the inalienable components of the license. It should also be made the necessary amendments to Article 12 "Contents of the Subsoil License" and Article 27 "Geological Information on the Subsoil" of this Law.
Thus, state ownership of the subsidiary of the state fund subsoil is distributed:
1) to the subsoil sections as geometrous blocks of subsoil and contained
7 Kozlovsky E. A., Zheninko V. Yu. Information is a thing // Natural resource statements. 2003. № 2526.
departure mineral resources under Article 1.2 of the Subsoil Law;
2) for mined minerals;
3) to immovable mining;
4) on geological information resources on the subsoil section (actually information, its analytical and model processing and interpretation, for example, counting reserves, technical and economic substantiation of oil extraction coefficients, etc., as well as samples of rocks, core, etc. .).
The listed four elements, being heterogeneous things, form a single integer, involving their use by general purpose, and are considered as one complex thing (Article 134 "Complex Things" of the Civil Code of the Russian Federation). The general purpose of this complex thing is to mining minerals. The main thing is the plot of subsoil with mineral resources contained in it. Geological information resources, as well as immovable mining properties are things intended for servicing the main thing related to the total appointment, and therefore in accordance with the Civil Code of the Russian Federation follow the fate of the main thing. Any civil law transactions concluded about the complex thing must apply to all its components. It follows that in licenses (license agreements), all four elements should be described in detail in detail all four elements as a single integer one complex thing.
LITERATURE
2. Tax Code of the Russian Federation (part Two): Federal Law of August 5, 2000 No. 117-FZ.
3. Civil Code of the Russian Federation (part of the first): Federal Law of November 30, 1994 No. 51-FZ.
4. Cubinb. D. Mountain relations in Western Europe and America (England, Canada, USA, France, Germany). M., 2000.
6. Reforms in all areas will continue: interview with the Chairman of the Government of the Russian Federation Mikhail Kasyanov // Vedomosti. 2004. December 1.
7. On the introduction of a supplement to the second of the Tax Code of the Russian Federation, making changes and additions to some other legislative acts of the Russian Federation and recognition by invalid the strength of some legislative acts of the Russian Federation: Federal Law of June 6, 2003 No. 65-FZ.
8. Skorjorova A., Orekhin P. Illarionov defended Khodorkovsky and Abramovich // Independent newspaper. 2003. July 15.
9. Constitution of the Russian Federation: adopted on December 12, 1993 on the results of a national vote, conducted in accordance with the Decree of the President of the Russian Federation of October 15, 1993 No. 1633 "On the conduct of a national vote on the draft Constitution of the Russian Federation".
There is a superstition that under the Constitution of the Russian Federation, Russia is owned by the state and the people living in a given area. Even Prime Minister V. Putin adheres to this delusion: « I appeal, dear colleagues, to all of you - and to the main key shareholders of our oil companies, and to the management and I want to remind: you are working in the Russian Federation, "said Putin. - Getting licenses for subsoil, you use these subsoil, but they remain owned by the Russian people: this is a national heritage, this is in accordance with applicable law. Even getting a license for subsoil, subsoil remains the property of the Russian people, the Russian state».
According to Article 9, paragraph 2 of the Constitution of the Russian Federation: "Earth and other natural resources can be located in the private, state, municipal and other forms of ownership."That is, it is definitely spelled out here. equal right to subsoil and state property.
Ownership as the right to specific subjects for certain objects (property) is reduced to three emparities: the right of possession, the right of use and the right of disposal. These right-wing in the complex are the legal ownership. (http://www.rosnedra.com/article/256.html). The right of disposal is the opportunity provided to the owner at its discretion and in its interest to perform actions that determine the legal fate of the property. This means that according to the Constitution of the Russian Federation, the private owner, possessing the same right for the subsoil as the state, can sell its property for subsidiaries, use and disposal to any other legal entity, including foreign companies. This directly affects the national security and independence of Russia.
Now, to limit this opportunity given by the Constitution of the Russian Federation, there is a federal law "On subsoil", where it is indicated that: " Subsoiland within the territory of the territory of the Russian Federation, including underground space and the minerals, energy and other resources contained in the depths are state ownership. The issues of ownership, use and disposal of subsoils are in the joint joining of the Russian Federation and the constituent entities of the Russian Federation "(Article 1-2).
It is important to note that the group of interested persons these issues can be solved so that the item of sole state state ownership may disappear from the new law "On Subsoil", and then any private owner will dispose of Russia at its discretion, including foreign companies. According to Academician Raskn V. Kashina (http://zlev.ru/71_10.htm) " the content of the new law develops a line to destroy the rights of the Russian Federation and its citizens to its resources. " He writes: "Invalid the design of the law, which reduces the Russian Federation, one of the largest countries of the world, which owns the richest natural resources, to the position of a simple partner of civil-legal relations with subsoil users - mining companies and even individual individuals ... In the draft of the new law, it is recorded:" ... With regard to strategic species of mineral raw materials, federal laws may be established by the priority law of the Russian Federation for the conclusion of contracts for the acquisition of such types of mineral raw materials "... Who is so manicly" pushing "this bill? The answer to this question is obvious if we consider new bills: "Land Code", "Forest Code", "Water Code", "Law on Subsoil". This is a slim ensemble, monolith, composite parts of which are subordinated to a single plan: total denatation (read - withdrawal from the people of natural resources, turning them into conventional goods, selling individuals, including foreigners) ... So, a start of the second, the stage of privatization of large strategic objects of the state»
To eliminate the next dilution of the natural resources of Russia, I propose In the Constitution of the Russian Federation, supplement Article 9 of clause 3: "Sub-space within the borders of the territory of the Russian Federation, including underground space and its mineral resources contained in depths, energy and other resources are state ownership."Then by private property, Rossi natural resources can only be after the sale of minerals and other resources from the depths of minerals.
I submit to review the theses of the article, proving that all mined in our country was assigned illegally, that is, it is unjust ... these people are even lazy to fulfill their own laws and comply with some kind of law ... Read ... I solemnly swear to finalize the theses In a partable article, understandable not only to lawyers
Civil Code of the Russian Federation
Article 129. Objectproof civil rights
1. Civil rights may freely alienate
Or move from one person to another in the order of universal succession (inheritance, reorganization of the legal entity) or in other ways, if they are not from the turnover or are not limited to the turnover.
2. Types of civil rights objects, which are not allowed in circulation (objects seized from turnover) should be directly listed in the law. Types of civil rights facilities that can belong only to certain participants in turnover or to find which in circulation is allowed for a special resolution (objects, limited to the turnover), are determined in the manner prescribed by law.
3. Earth and others natural resources may alienate or move from one person to another In other ways, to the extent to which their turnover is allowed by law on land and other natural resources.
Thus, the Civil Code establishes that the law must be installed method According to which natural resources can alienate or proceed from one person (in our case, state, Article 1.2 of the Law on the Subsoil) to another person (in our case of the mining company). However, as will be shown below this method The law on subsoil is not established. The method of voyage was chosen by the law of the concepts of the "transition of ownership of the right" (which is a transaction) and production (which in itself is works).
Article 209. Content of property rights
1. The owner belongs to the right of ownership, use and disposal by their property.
2. The owner is entitled to make any actions that do not contradict the law belonging to him on its own discretion legal acts and not violating the rights and protected interests of others, including to alienate their property to other persons, transfer them, remaining the owner, the rights of ownership, use and disposal of property, to give property to a deposit and burden it in other ways to dispose of them in a different way .
3. Ownership, use and disposal of land and other natural resources to the extent to which their turnover is allowed by law (Article 129) is carried out by their owner freely, if it does not damage the environment and does not violate the rights and legitimate interests of others.
This norm is sent to Article 129 of the Civil Code of the Russian Federation (see above)
Article 218. Grounds of acquisition of ownership
1. The ownership of a new thing, made or created by the face for himself, with respect for law and other legal acts, is purchased by this person.
Ownership of the fruit, products, revenues obtained from the use of property are acquired on the grounds provided for in Article 136 of this Code.
This norm cannot be applied to the mined and mined minerals, since by the time of production, already have the owner (p.1.2 of the depth law) and they are subject to the action of the norm contained in paragraph 2 of this article. The mined resource is not a new thing, fruits, income and products. Since due to its natural properties is already existing and contained in the subsoil areas. Strictly speaking, the natural resource is a "thing" in the legal sense (in a number of other objects of civil law).
2. The ownership of property that has the owner, can be acquired by another person on the basis of the contract of sale, exchanges, donations or other transactions on the alienation of this property .
This norm is used in terms of the substantiation of the legality of assigning the right of ownership, but this is a vesualization (see above Comment to Article.218 of the Civil Code of the Russian Federation)
Article 235. Grounds of termination of ownership
1. Ownership is terminated with the alienation by the owner of its property to other persons, the refusal of the owner from the right of ownership, the death or destroying of property and in the loss of property rights in other cases provided for by law.
The end of the state of ownership of the state for the extracted resources does not occur, since there is no "transaction" from the state and / or other loss of property ownership. However, the owner of the resource in the face of the state and the mining company assigning the resource is not an alienative paid transaction.
Article 1102. Responsibility to return unjust enrichment
1. A person who, without law, has acquired or saved property (the acquirer), at the expense of another person (victim), is obliged to return the last unjust acquisition or saved property (unjust enrichment) Except for the cases provided for in Article 1109 of this Code.
2. The rules stipulated by this chapter are applied regardless of whether unjust enriched by the result of the behavior of the property of the property, the most victim, third parties or occurred in addition to their will.
Thus, the lack of an right-wing basis for the acquisition of the mined natural resource arising from the law or from the transaction can be qualified as unjust enrichment, which should be returned to the owner (in our case state). Now let's see what a special law says about this, namely the law "On subsoil", so
Law on subsoil
Article 1.2. Property for subsoil
Subsoil within the boundaries of the territory of the Russian Federation, including underground space and powerful minerals, energy and other resources contained in depths are state ownership. . The issues of ownership, use and disposal of subsoils are in the joint joining of the Russian Federation and the constituent entities of the Russian Federation.
Thus, the right of ownership of the state to the mineral resources contained in the depths is established by this Federal Law.
Plots of subsoil cannot be the subject of purchase, sales, donation, inheritance, deposit, pledge or alienate in another form. The rights of use of subsoils may alienate or move from one person to another to the extent that their turnover is allowed by federal laws.
Mineral resources mined from subsoil and other resources under license conditions may be in federal state ownership, property of constituent entities of the Russian Federation, municipal, private and other ownership forms .
This norm does not establish exceptions (withdrawal) from the norms of Article.218 of the Civil Code of the Russian Federation. Thus, the transaction on alienation should be as a condition for the transfer of ownership. The question of the transition of ownership of natural resources from the state is not solved by this
Article 6. Types of use of subsoil
Subraser are provided for use for:
1) regional geological study, including regional geological and geophysical work, geological survey, engineering and geological surveys, research, paleontological and other works aimed at the general geological study of subsoil, geological work on forecasting earthquakes and research of volcanic activities, creating and maintaining monitoring the state of subsoil, control over the groundwater regime, as well as other works carried out without significant violation the integrity of the subsoil;
2) geological study, including searches and evaluation of mineral deposits, as well as geological study and assessment of the suitability of subsoil areas for the construction and operation of underground structures that are not related to mineral mining;
3) intelligence and mining mining , including the use of mining waste and related processing processes;
4) construction and operation of underground facilities that are not related to mineral mining;
5) the formation of specially protected geological facilities with scientific, cultural, aesthetic, sanitary and recreational and other importance (scientific and educational polygons, geological reserves, reserves, nature monuments, caves and other underground cavities);
6) collecting mineralogical, paleontological and other geological collections.
Subraser may be provided to use simultaneously for geological study (searches, intelligence) and mining. In this case, mining can be carried out both in the process of geological study and directly upon its completion.
Thus, subsoil use does not imply and does not create conditions for the transition of ownership of minerals. The type of subsoil use is only mining, that is, the production of work on their extraction.
Article 7. Plots of subsoils provided for use
In accordance with the license for the use of subsoils for mining, the construction and operation of underground structures that are not related to mineral mining, the formation of specially protected geological facilities, as well as in accordance with the Production Development Agreement during the exploration and mining of mineral raw materials, the Subsorate site is provided to the user In the form of a mountain drain - a geometrized base unit.
In determining the boundaries of the mining discharge, the spatial contours of mineral deposits, the position of the construction and operation of underground structures, the borders of the safe maintenance of mountain and explosive work, the protection zones from the harmful effects of mining developments, the zone of rocking rocks, the contours of safety fuses under natural objects, buildings and buildings and structures, sides of sides of quarries and cuts and other factors affecting the state of the subsoil and earth's surface due to the process of geological study and use of the subsoil.
The preliminary boundaries of the mining discharge are established when licensed on the use of subsoils. After developing a technical project, obtaining a positive conclusion of state expertise, coordinating the specified project with state mining authorities and government agencies of environmental protection documents that determine the refined borders of the mountain drain (with characteristic cuts, the corner-point coordinates) are included in the license to as an integral part.
The user of the subsoil who received mountain diversary has an exceptional right to exercise in its borders to use subsoils in accordance with the license provided.
Again, it is only about the use of subsoils (i.e. on the production of work on the extraction of resources), the issue of transition of ownership of minerals, the law is not resolved. A classic subsoil user, for example, is a metropolitan, which does not assign anything.
Article 11. License for the use of subsoil
The provision of subsoil use is drawn up special government permission in the form of a license which includes the established form of a form with the state coat of arms of the Russian Federation, as well as text, graphic and other applications that are an integral part of the license and determining the main conditions for the use of subsoil.
Again we are talking only about the use of subsoil like real estate. The question of the transition of the right of ownership again this norm is not solved. Moreover, we see that the license is only resolution On subservation! That is, the license itself can not be an alienate deal.
The provision of a plot (sections) of the subsoil to use under the terms of the Production Sharing Agreement is issued by the license for the use of subsoil. The license certifies the right to use the subsidiary (sections) of the subsoil on the terms of the agreement, which determines all the necessary conditions for the use of subsoils in accordance with the Federal Law "On Production Decans" and the legislation of the Russian Federation on subsoil.
The license is a document certifying the right of its owner to use the subsoil site. At certain boundaries in accordance with the goal specified in it during the prescribed period, subject to the owner of pre-agreed conditions. Between authorized by the authorities state power And the user of the subsoil may be a contract establishing the conditions for using such a plot, as well as the obligations of the parties to fulfill the specified contract.
Again, mixing the concept of "use" and "transition of property rights" is repeated. As I said, you can use subsoil, as the metropolitan uses. The use of the subsoil area is the necessary process, from the point of view of production. But where is the transfer of ownership? And I will answer you: NIGHT!
The license certifies the right to carry out work on the geological study of the subsoil, development of mineral deposits , the use of mining waste and related processing, the use of subsoils for purposes not related to mineral mining, the formation of specially protected geological objects, collecting mineralogical, paleontological and other geological collections.
Article 12. Contents of license for use of subsoil
The license and its integral part should contain:
1) the user data on the user subsoil, and the license, and the authorities providing the license as well as the basis for the provision of a license;
2) data on the targeted appointment of work related to the use of subsoil;
3) indication of the spatial boundaries of the subsoil area provided for use;
4) the indication of the boundaries of the land plot or the water area allocated to conduct work related to the use of subsoil;
5) the validity period of the license and the timing of the start of work (the preparation of the technical project, the access to the design capacity, the submission of geological information on the state examination);
6) conditions related to payments charged with subsoils, land plots, waters;
7) coordinated mining level of mineral raw materials, ownership of the mined mineral raw materials ;
The literal interpretation of this rule of law indicates that the issue of the transition of ownership and given the norm is also not settled, since it does not establish a method for the transition of ownership of mined minerals, as an alienation transaction, unlike the right of ownership of geological information (stated immediately below)
8) Agreement on the right of ownership of geological information obtained in the process of use of subsoil;
9) the conditions for implementing established by law, standards (norms, regulations) of the requirements for the protection of the subsoil and the environment, safe management of work;
10) The procedure and timing of the preparation of projects for the elimination or conservation of mining and land reclamation.
The subsoil use license enshrines the following conditions and the form of contractual use contracts, including a contract for the provision of services (with risk and without risk), and can also be complemented by other conditions that are not contrary to this Law.
In the event of a significant change in the volume of product consumption in circumstances, the subsoil, the deadlines for the commissioning of objects defined by the license agreement, may be revised by the authorities issued by the license to use the subsoil areas on the basis of the user's appeal.
The license for the use of subsoils on the terms of the Production Degree agreements should contain the relevant data and conditions provided for by this Agreement.
The conditions for the use of subsoils provided for in the license maintain their strength during the timing specified in the license either during its entire period. Changes in these conditions are allowed only with the consent of the user's subsoil and bodies providing a license or in cases established by the legislation.
Article 22. Basic rights and duties of the user subsoil
User subsoil has the right:
1) to use the subsoil area provided to him for any form of entrepreneurial or other activities that meet the goal designated in a license or in the Production Decree Agreement;
2) to independently choose the forms of this activity that do not contradict the current legislation;
3) use the results of their activities, including the mined mineral raw materials, in accordance with the license or the product sharing agreement and the current legislation;
The issue of regulating the transfer of the transfer of ownership in accordance with the license is not resolved, because it does not establish the conditions for the transition of ownership. As noted earlier, the license, as such, is not a form of alienation of property, based on the meaning of Article 11 of this Law. It can use it, but first you need to purchase property rights. And compensated. Otherwise, it violates privatization principles. And any transition rights from the state to non-state and there is privatization from the point of view of the law "On the privatization of state and municipal property".
Thus, I show that subsoil use is not a resource extraction. The mining of the resource from the point of view of the theory of law is "work", and the resource is "the thing". The license is a resolution, but not a transaction. Since the law on the depths is not established any other way of the transition of the right of ownership than those established by the Civil Code. And the alienation transaction from the point of view of civil law (civil code) is missing for the resource.
The key element of the regulation of relations on the use and protection of the subsoil is the relationship of ownership of them. Fastening in the right of economic structures of subsoil use is beginning to occupy an increasing place and attract close attention of Russian and foreign nature users, which is determined by a number of factors.
Subraces within the boundaries of the territory of the Russian Federation, including underground space and mineral resources contained in the depths, energy and other resources are state ownership. Plots of the subsoil and the right to use them cannot be the subject of purchase and sale, donation, inheritance, deposit, pledge or alienate in another form, except for the cases provided for by law of the Russian Federation of 21.02.1992 No. 2395-1 "On subsoil".
Extraked from the depths of minerals (at the same time they cease to be the object of nature management and environmental protection, because they lose contact with it, and become a subject of civil turnover) under the conditions of the state license issued in the state of the state, the ownership of the subjects of the Russian Federation, the municipal, private and other forms of ownership.
The issues of ownership, use and disposal of subsoils are in the joint joining of the Russian Federation and its subjects. PO GK RF state ownership has two forms - the property of the Russian Federation and the ownership of the subjects of the Russian Federation. This legislative formula is successfully developing in the form of a clear distinction of authority in the field of state ownership management for subsoil and subsoil use between the Russian Federation and the subjects of the Russian Federation.
In connection with the municipal reform, the competence of municipalities and organs increases local governments In the field of the use of underground space of cities and other settlements, their ownership rights, disposal of outwasted minerals (sand, clay, peat, gravel).
Therefore, it is necessary and local governments are necessary to consider important elements of the legal mechanism - participants in the use and protection of subsoil, subjects of public property management on them.
Thus, in Russia, an exceptional state ownership was proclaimed for subsoil with the provision of the rights of private, municipal, state ownership of mineral and other natural resources.
Historical reference
The question of the subsoil to the state, physical and legal entities has always been on the agenda - when mastering new land under Peter I in Russia in the XVIII century. And with the "Golden Fever" in the USA in the XIX century. Adopted at the junction of the XIX and XX centuries. Charter Gorna Russian Empire Already contained private and public legal principles with a tendency to strengthen the second, which was reflected in the legislation of the subsequent century.
In connection with the exacerbation on the planet of mineral and commodity problems, the importance of admission of foreign individuals and legal entities to hold, use and dispose of subsoils, the extraction of large national deposits with strategic importance for the development of the country is increasing.
In most developed states, legislation is thoroughly regulated by the participation of foreign legal entities (foreign capital) in projects for the development of deposits located both on land and on the continental shelf.
This is due to the limb and non-renewability of mineral resources, the desire of the state to ensure future generations, the functions of monitoring objects that provide public interest in the long-term perspective.
Plots of the subsoil of federal significance
Separate sections of the subsoil may receive the status of federal value objects on the basis of decisions of federal state authorities and state authorities of the constituent entities of the Russian Federation in accordance with the generally accepted principles and regulations international law and national law requirements.
This is done in order to guaranteeing the state needs of Russia with strategic and scarce types of subsoil resources, the presence of which affects the national security of Russia and ensures its sovereignty. Some of the federal significance deposits, including those developed and prepared for mining, is included in the Federal Fund of Reserve deposits.
The sections of the federal significance include, in particular:
- 1) deposits and manifestations of uranium, diamonds, nickel, cobalt, platinum;
- 2) recoverable oil reserves from 70 million tons, gas from 50 billion cubic meters. m, gold from 50 tons, copper from 500 thousand tons, etc.
After the adoption of the Federal Law of 29.04.2008 No. 57-FZ "On the procedure for the implementation of foreign investment in economic companies, which have strategic importance to ensure the defense of the country's country and security, criteria have been established to classify the sections of the subsoil to the subsoil areas of the federal significance and restrictions on the access of foreign investors to Use these areas.
The adoption of the European Energy Charter, the aggravation of the problems of designing and building oil pipelines bypassing Russia, the overlapping in some countries of Russian gas-operated conditions determine the adoption on the basis of international law measures aimed at ensuring the independence of the Russian TEK from the unreasonable intervention of someone.
In these areas, the activities of the Government of the Russian Federation on the management of Russia's property are carried out on the basis of federal laws, including the Federal Law of December 26, 2008 No. 294-FZ "On the protection of the rights of legal entities and individual entrepreneurs in the implementation of state control (supervision) and municipal control ". Decisions of the Government of the Russian Federation were adopted:
- - from 09/16/2008 No. 697 "On approval of the Regulation on the decision on the termination of the right to use the subsoil area of \u200b\u200bfederal importance for intelligence and mining in the case of the implementation of the geological study of the subsoil on a combined license" (subsoil user who is legal entity with the participation of foreign investors or a foreign investor, in the event of a threat to the defense of the country and the security of the state);
- - from 07.11.2008 No. 823 "On the procedure for the formal publication of the list of sedances of the subsoil of federal significance in the official edition of the Russian Federation";
- - from 11/27/2008 No. 897 "On approval of the Regulations on the consideration of applications for the right to use subsoils when establishing the fact of opening the mineral deposit on the subsoil of federal significance or at the subsoil section, which is assigned to the subsoil areas of the federal significance as a result of the opening of the mineral deposit subsoil held work on the geological study of the subsoil of such a plot at the expense of own funds for exploration and mining of the open field ";
- - dated 12.05.2005 № 293 "On approval of the Regulation on the state supervision for geological study, rational use and protection of subsoil."
- See: Proceedings of the Department of Mining Right of the Russian State University of Oil and Gaza named after I. M. Gubkin. Vol. 7. M.: Max Press, 2000-2014.