LEGAL APPROACHES TO ENTREPRENEURIAL ACTIVITY (REPUBLIC OF MOLDOVA)

ПРАВОВЫЕ ПОДХОДЫ К ПРЕДПРИНИМАТЕЛЬСКОЙ ДЕЯТЕЛЬНОСТИ (РЕСПУБЛИКА МОЛДОВА)

Михалаке Юрий Иванович

доктор права, доцент, Университет Европейских Политических и Экономических Исследований «Константин Стере»,

Республика Молдова, г. Кишинев

ABSTRACT

The purpose of this article is to make a legal reflection of the regime of entrepreneurial activity in the Republic of Moldova. The major problem is that the normative acts in force contain multiple notions and phrases that essentially have the same meaning, but are used in different contexts, generating confusion and problems of interpretation.  Civil legislation represents the "common law" for most private law institutions and the provisions of the Civil Code will be applied subsidiary. Most of the relations that arise in connection with the conduct of entrepreneurial activity are regulated by the norms of civil law.

АННОТАЦИЯ

Целью данной статьи является правовое отражение режима предпринимательской деятельности в Республике Молдова. Основная проблема заключается в том, что действующие нормативные акты содержат множество понятий и фраз, которые, по сути, имеют одно и то же значение, но используются в разных контекстах, что порождает путаницу и проблемы толкования. Гражданское законодательство представляет собой «общее право» для большинства институтов частного права и положения Гражданского кодекса будут применяться субсидиарно. Большинство отношений, возникающих в связи с осуществлением предпринимательской деятельности, регулируются нормами гражданского права.

Keywords: legislation, entrepreneurial activity, normative acts, legal regime, legal entities, public authority.

Ключевые слова: законодательство, предпринимательская деятельность, нормативные акты, правовой режим, юридические лица, публичный орган.

Entrepreneurial activity, in a broad sense, means any profit-making activity carried out by individuals or legal entities, and in a narrow sense, it means the activity of providing services, buying and selling goods, and marketing products.

According to the provisions of the Civil Code of the Moldavian Soviet Socialist Republic of 1964 [7], citizens were prohibited from owning means of production, and personal property could not be used for profit. As an example, the author cite art.102 para.(4) of the Code, which stipulated that personal property of citizens should not be used for obtaining income not derived from work. Thus, the profit accumulated from the use of personal property (rent, lease, etc.) was considered “income not derived from work”, being regarded as a crime (speculation) and severely punished by criminal law.

The starting point in the development of entrepreneurial activity was established by the adoption of the Law of the Republic of Moldova on Property No. 459/1991 (repealed), which introduced the right of all persons to private property. The first normative act regulating the establishment of enterprises was the Regulation on Economic Companies, approved by the Decision of the Government of the Republic of Moldova No. 500/1991 (repealed). The normative act was not published in the Official Gazette or in any other official publication, and its distribution to public authorities was carried out through Government circulars.

During the years 1991-1992, the registration of legal entities was carried out by the city halls of the localities, later the State Registration Chamber was established to which exclusive powers regarding the registration of enterprises were delegated. The registration procedure was provided for in the Regulation on State Registration of Enterprises, approved by the Decision of the Government of the Republic of Moldova No. no.50/1992 (O.J., 1992, no.1) (repealed), whose norms were of a special nature and applied in priority to the provisions of the Regulation on Economic Companies. The evolution of the regulations in the field continued with the adoption of the Law on State Registration of Enterprises and Organizations no.1265/2000 (O.J., 2001, no.31-34) (repealed), followed by the current Law on State Registration of Legal Entities and Individual Entrepreneurs no.220/2007 [10].

From a conceptual point of view, at present in the Republic of Moldova there is a unitary system of private law, based on the norms of civil law arising from the provisions of the Civil Code. In turn, civil law is divided into two categories: (a) civil law of individuals, which includes relations based exclusively on the norms of the Civil Code (persons, legal act, marital status, limitation period, contracts between individuals, succession), and (b) civil law of entrepreneurs (business law), practiced by individuals and legal entities registered as entrepreneurs. The norms of this last category are found in special normative acts.

In recent years, there has been an increased trend towards detailed regulation of certain operations, giving rise to: transport law, insurance law, company law, banking law, insolvency law, competition law, etc. Each of these sub-branches develops certain aspects of entrepreneurial relations (commercial companies, transport, competition, insolvency, etc.) and derives from civil legislation, but taken as a whole they contribute to the formation of the field of entrepreneurial activity as a mixed institution.

Civil legislation has the quality of "common law" for most private law institutions and to the extent that the institution of entrepreneurial activity lacks legal norms, the provisions of the Civil Code will be applied in a subsidiary manner. The fact that the subject of regulation of entrepreneurial activity also contains elements of public law (administrative, fiscal, customs, etc.) does not diminish the weight of civil legislation.

The broadest definition of entrepreneurial activity is given in art. 1 of the Law on Entrepreneurship and Enterprises no. 845/1992 [11], which establishes that "entrepreneurship is the activity of manufacturing production, performing works and providing services, carried out by citizens and their associations independently, on their own initiative, in their name, at their own risk and under their patrimonial liability with the aim of ensuring a permanent source of income". On the other hand, the tax legislation defines the respective notion slightly differently, entrepreneurial activity being considered any activity, except for work performed under an individual employment contract, carried out by a person with the aim of obtaining income (art. 5, point 16 of the Fiscal Code of the Republic of Moldova [6]).

Both in everyday speech and in legislation, a number of expressions are found that name entrepreneurial activity: “entrepreneurship activity”, “business”, “commercial activity”, “trade activity”, “economic activity”, “business climate” or “business” [13]. The problem lies in the fact that the simultaneous use of different phrases with the same meaning generates difficulties at the level of perception. Based on these realities, the author consider it appropriate to use the expression “entrepreneurial activity”, as it is in accordance with the provisions of the legislation in force. At the same time, the author believe that the phrase “entrepreneurial activity” is less relevant, since the word “entrepreneurship” can only be found in the Law on Entrepreneurship and Enterprises, while most of the normative acts in force use the notion of “entrepreneur”.

Business is considered to be a risk, which manifests itself through the chance of winning or the possibility of losing, being an essential attribute of the market economy, an attribute that justifies free competition and that practically defines the business, the entrepreneur, the commercial company, competition and insolvency [1, p.34]. Often, business is associated with an adventure, and in this sense the English translation of the term business – “ad-venture” (venture – risk, and ad-venture – adventure, taking a risk) is suggestive [15, p.78].

The legal definition of the term "business" is given in the Fiscal Code of the Republic of Moldova, which in art.5 point (16) provides that business (entrepreneurial activity, business) represents any activity carried out in accordance with the legislation, except for work performed under an employment contract, carried out by a person, with the aim of obtaining income, or, as a result of which, regardless of the purpose of the activity, income is obtained. References to the notion of business can be found in: Law on the basic principles of regulating entrepreneurial activity no. 235/2006 which regulates the initiation, conduct and liquidation of business (art. 11); in Insolvency Law no. 149/2012 (O.L., 2012, no. 193-197) – sale of the debtor's business (art. 129); in the Civil Code (M.O., 2002, no. 82-86) – management of the entrepreneur's business (art. 258), business relations (art. 1226), transaction regarding all businesses (art. 1337), etc.

The author can consider that the notions of "commercial activity" and "trade activity" are synonymous. In accordance with art. 3 of the Law on Internal Trade No. 231/2010 (O.J., 2010, no. 206-209), trade activity represents a variety of entrepreneurial activity, initiated on the basis of established relationships in the field of trading goods, performing various works and providing services related to the sale of goods, with the aim of satisfying private economic interests and ensuring a source of income. Thus, from the text of Law No. 231/2010 it is clearly understood that the basis of commercial activity is trade in goods, respectively the notions of "commercial" and "trade" are synonymous, and natural and legal persons who carry out activities in the field of trade are called traders. In this context, the Classifier of Activities in the Economy of Moldova establishes that the list of trade activities includes transport, communications, service provision activities, etc.

Currently, the terms "trade" and "commercial" are included in the general norms of the Civil Code regarding sale and purchase (art. 753-822), and among civilists there is a fear that a possible consolidation of the institution of commercial law would generate problems within private law [8, p. 112]. These fears result from at least two reasons: firstly, the Republic of Moldova has accepted the unitary (monist) system of private law, in which the Commercial Code is missing, and the norms regarding trade relations are inserted in the Civil Code; the revival of commercial law would diminish the weight and importance of civil law which currently holds a monopoly within private law; secondly, the enhancement of commercial law is accompanied by the risk of even greater confusion between the notions of "trade", "merchant", "business", "entrepreneurship" and "entrepreneur".

With reference to the phrase “economic activity”, it was widely used during the Soviet Union, and currently the concept is promoted under the name “Хозяйственное право” by a small group of Russian and Ukrainian authors [17, p.67]. However, some doctrinaires vehemently oppose the introduction of the notions of economic law and economic code into the legal circuit. In their opinion, economic law is associated with the principles of the Soviet-style planned economy and currently contradicts the principles of the market economy [18, p.56].

The origin of the concepts of “economic activity” and “economic law” dates back to the period of 1920-1950, when there were failed attempts to adopt an Economic Code of the Soviet Union. It was intended that its norms would be applied in parallel with the provisions of the Civil Code. In 1921, the study of economic law began, and after 50 years, the idea of ​​economic law was returned to in Ukraine, in 2003 the Economic Code of this country was adopted. The author emphasize that in the period of 2006-2011, there were attempts to introduce a new concept of private law in the Republic of Moldova as well, by creating the branch of economic law [5, p.23].

There are discussions about the legal nature of entrepreneurial activity. The difficulty lies in the fact that in the legislation and doctrine of each state the respective issue is approached differently. In the Russian Federation, Italy and the Netherlands the legal institution of entrepreneurial activity is regarded as a component part of civil law, and in France, Spain and Portugal it forms distinct branches of law [13, p.73]. Moreover, things get complicated as the authors, even within the same state, use various names, such as entrepreneurship law, commercial law, trade law, economic law, considering the same object of regulation – entrepreneurial activity.

According to Professor L. Andreev, the terms “commercial activity” and “entrepreneurial activity” are related to each other according to the rule “part to whole”: commercial activity is considered as part of the composition of entrepreneurial relations. Researcher N. Golovanov argues that the regulatory object of entrepreneurial activity includes any relations aimed at obtaining profit, while commercial activity has a narrower object, which is reduced to trade [21, p.10]. The same point of view is expressed by French authors D. Legeais and B. Hess-Fallon, who point out that the institution of entrepreneurial activity has a multidisciplinary character. The term "entrepreneurial activity" is broader than the term "commercial activity", because it encompasses not only trade-related activities, but any profit-making activities, including agricultural, craft, liberal professions, both in the sphere of private law and public law (social, fiscal, criminal, contraventional, etc.) [9, p.45].

Another category of authors (K.Lebedev, V.Laptev) argue that the terms “entrepreneurial activity” and “commercial activity” represent one and the same thing, and discussions on the delimitation of these two categories would be useless [23, p.55]. In this regard, opinions were expressed in favor of standardizing the names in order to highlight, thus, their single object of regulation. It was mentioned that there are no differences between “commercial activity” and “entrepreneurial activity”, respectively, both activities are part of the broad category of profit-making relations [24, p.35]. Moreover, one can encounter the opinion that the object of regulation of entrepreneurial activity also includes corporate legal relations. In this regard, Professor E.Gubin emphasized that depending on the object and method of regulation, corporate relations represent an important institution of entrepreneurial activity [22, p.34].

There are contradictory discussions in the legal literature in Romania. In connection with the repeal of the Commercial Code (in force since 1887) in 2011, the issue of renaming the term “commercial” was raised. The respective need arose from the consideration that until the entry into force of the new Romanian Civil Code, in the doctrine across the Prut there was a “dualism” of private law according to which civil law and commercial law were considered two distinct branches (of private law), the first – focused on the Civil Code of 1864, and the second – on the Commercial Code of 1887. In this sense, names have been put forward, such as: trade activity, business, professional activity, entrepreneurial activity, etc. However, taking into account the tradition formed during the 150 years of application of the Commercial Code in Romania, most authors nostalgically opt for the name – “commercial”.

On the other hand, the notion of business has been subject to criticism. According to the author Ş. Beligrădeanu, it is objectionable to use the phrase "business", on the grounds that it represents a mixture of several components. In the author's view, the legal institution of business is formed by a plurality of branches, such as: civil law, commercial law, labor law, administrative law, fiscal and fiscal procedural law, banking law, criminal law, etc., whose only connection is that they concern the legal relations established in the sphere of business [2, p.11]. The same opinion was expressed by the researcher S. Cărpenaru, who claims that the term "business" is contested in Romania and can possibly be used for the economic field [4, p.14].

Over the years, entrepreneurial activity has been the subject of many normative acts. Having normative acts at hand, the state has contributed to the regulation and organization of entrepreneurial activity, and in certain situations, it has intervened abusively in the normal conduct of entrepreneurial activity. Instead of taking measures to liberalize the market, the authorities have hindered the realization of private initiative [15, p.66].

Being the shortest way to obtain income, entrepreneurial activity can also generate conflicts, such as: illicit passenger transport, selling goods without holding an activity license, counterfeiting products, providing poor-quality services, etc. In this context, public authorities are entitled to apply sanctions for violations committed by entrepreneurs. For example, the illegal practice of entrepreneurial activity resulting in obtaining a large profit is qualified by the Criminal Code of the Republic of Moldova as a crime (art.241).

The institution of entrepreneurial activity is viewed as a complex structure that includes features and methods taken from different branches and institutions of law. Russian professor V. Belîh argues that the content of entrepreneurial activity harmoniously combines elements of private law and public law. The object of entrepreneurial activity includes norms taken from the sphere of civil, administrative, constitutional, fiscal, financial law, etc., and in this regard, there is an increasingly obvious tendency to transfer the object from the sphere of private law to that of public law [20, p.26]. French researcher A. Braud cites as an example the institution of a legal entity which, on the one hand, is part of the sphere of private law, being regulated by the norms of the Civil Code, and on the other hand is subject to the rules of public law [3, p.46].

The followers of the civilistic school argue that the institution of entrepreneurial activity is a component part of civil legislation. Thus, the researcher V. Popondopulo argues that entrepreneurial activity does not have an object and method of regulation in the traditional sense, nor its own principles, which is why it should be included in the composition of civil law [25, p.7]. Another author argues that relations in the sphere of entrepreneurial activity should be analyzed not only from the perspective of civil legislation, but also administrative legislation. Horizontal relations of subjects involved in the material-financial circuit need to be regulated by civil legislation, and vertical relations – by the legislation of administrative law, financial law, tax law, etc. [19, p.13]

In the legislation of the Republic of Moldova, the norms related to entrepreneurial activity do not have their own codification. These norms are dispersed in various chapters of the Civil Code (general provisions, legal entity, categories of obligations, etc.), as well as in special normative acts, and attempts to separate them would provide the opportunity to start untimely discussions on the codification of norms in the sphere of entrepreneurial activity, as has already been done in Ukraine (Economic Code, 1994), and in the process of work – in Kazakhstan (Code on entrepreneurial activity). Moreover, the concept of a draft Code on entrepreneurial activity is intensively promoted by the Chamber of Commerce and Industry of the Russian Federation.

Conclusions. Despite the fact that the legislation and specialized doctrine use different notions to name legal relationships that bring profit, the author consider that the correct notion to be used is “entrepreneurial activity”, which is in accordance with the provisions of the legislation in force.

The phrase “commercial activity” is based on the trade of goods, so that commercial activity (trade) represents only a variety of entrepreneurial activity, a fact confirmed by art. 3 of the Law on Internal Trade no. 231/2010. Consequently, the terms “commercial activity” (trade) and “entrepreneurial activity” relate to each other according to the “part to the whole” rule: commercial activity being viewed as part of the composition of entrepreneurial relationships.

The expression “entrepreneurial activity” is less relevant and needs to be excluded from use, since the word “entrepreneurship” can only be found in the Law on Entrepreneurship and Enterprises.

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