Regional operators and holders of special accounts as objects of public control in Russia

Goncharov Vitalii Viktorovich PhD in Law Associate Professor, Dean of the Faculty of Higher Education, Polytechnic Institute (branch), Don State Technical University in Taganrog 347900, Russia, Rostov region, Taganrog, Petrovskaya str., 109a niipgergo2009@mail.ru Other publications by this author     Petrenko Elena Gennad'evna PhD in Law Associate Professor of the Department of State and International Law, Kuban State Agrarian University named after I. T. Trubilin 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 niipgergo2009@mail.ru Other publications by this author

Cheshin Andrei Vladimirovich PhD in Economics Teacher, Orsk Humanitarian and Technological Institute (branch), Orenburg State University 15A Mira Ave., Orsk, Orenburg region, 462419, Russia niipgergo2009@mail.ru

Introduction.

The issues of control over the organization and functioning of capital repair funds in the Russian Federation, as well as the expenditure of funds in the implementation of repair measures, are widely studied in the works of O. S. Brankova and S. A. Khateev, ^{[2, pp. 155-159]} R. M. Gazirov, ^[3] E. A. Ivanova, ^{[6, pp. 153-160]} S. Yu. Kalashnikova, ^{[7, pp. 45-53]} A. B. Pyrkova, ^{[11, pp. 350-353]} G. A. Khmeleva, ^{[12, pp. 38-40]} as well as a number of other authors. The analysis of the activities of newly formed regional operators and owners of specialized accounts that carry out work within the framework of the organization and functioning of capital repair funds in the Russian Federation is carried out in the works of A. H. Bilikhodze, ^{[1, pp. 373-380]} V. O. Makushkin, ^{[8, pp. 186-196]} K. A. Schreiber, ^{[13, pp. 153-159]} and some other authors. However, the proportion of studies devoted to the need to use civil society institutions in monitoring the organization and functioning of capital repair funds in Russia does not seem to be sufficient.

Why is the chosen topic of scientific research of great theoretical and practical interest, significance and relevance?

Firstly, the capital repair funds accumulate significant funds collected from the population. According to various estimates, the area of premises in apartment buildings in the Russian Federation is up to 1.9 billion square meters. m. ^[14] with the average cost of payments by owners of premises in apartment buildings per year per square meter of 100-130 rubles (as of June 2023). The accumulation and spending of such sums needs constant monitoring by civil society.

Secondly, today there are significant amounts of arrears on the above-mentioned payments, which in percentage terms exceed the amount of debt owed by citizens for utilities. This indicates a certain degree of distrust of the population to the mechanism of formation and functioning of capital repair funds. Securing the possibility of organizing and implementing public control measures over the activities, acts and decisions of the main entities involved in the formation and functioning of the above-mentioned funds - regional operators and owners of special accounts - will increase the level of public confidence in the above-mentioned funds.

The purpose of this scientific research is not only to analyze the main problems that hinder the organization and implementation of public control over the activities, acts and decisions of regional operators and special account holders who work within the framework of the organization and functioning of capital repair funds in the Russian Federation, but also to develop a system of proposals for their resolution. Achieving this goal requires the resolution of a number of tasks, among which the following can be distinguished: a) to substantiate the role and place of the institution of public control in the system of legal guarantees for the implementation and protection of the constitutional principles of democracy and public participation in the management of state affairs; b) to justify the need to include in the list of objects of public control activities, acts and decisions of regional operators and owners of special accounts that carry out work within the framework of the organization and functioning of capital repair funds in the Russian Federation; c) formalize and investigate the main problems that hinder the organization and conduct of public control measures in relation to the above-mentioned objects; d) formulate and justify a system of measures to resolve the above-mentioned problems.

The main text.

Russia, like any other democratic state governed by the rule of law, has enshrined in its Constitution the place and role of the people as the bearer of sovereignty and the sole source of authority in the state. At the same time, the constitutional principles of democracy and the participation of society in the management of state affairs, in order not to be violated, require a complex system of legal guarantees, through which, on the one hand, their implementation is ensured, and on the other hand, protection and protection from any unlawful encroachments.

What is the role of legal guarantees of the above-mentioned constitutional principles?

Firstly, the Constitution of Russia and the current legislation provided for the possibility of bringing to justice persons who would infringe on the Basic Law of the country, try to illegally appropriate any authority, or retain it.

Secondly, the very system of public power in the Russian Federation is built in such a way as to exclude the possibility of over-concentration of power in the hands of a particular official or a separate public authority. Each public authority and each official is vested with a certain amount of authority to control and supervise other public authorities and their officials.

Thirdly, a number of public authorities have the authority to directly monitor compliance with the provisions of the Constitution, the protection of the Basic Law from encroachments by any subjects of law. The most important role among these public authorities is played by the head of state. It not only guarantees the implementation and protection of the Russian Constitution, but also acts as an institution ensuring the implementation of the entire system of rights, freedoms and legitimate interests of Russian citizens, as well as stateless persons and foreign citizens legally residing in our country. In Russia, significant powers of constitutional control and supervision are also exercised by such an important body of constitutional justice as the Constitutional Court of the Russian Federation, which, after the abolition of the system of regional constitutional and statutory courts, acts in this capacity in the singular.

Fourthly, ensuring the role and place of the people of the country as the rightful owner of the state is impossible without an active civil society, which must constantly monitor any public and private institutions in the country so that the latter do not violate, on the one hand, legislation, and on the other hand, do not infringe on rights, freedoms and legitimate the interests of the citizens of the country, since the mechanism of public power and any legal entities function, ultimately, for the sake of this fundamental goal.

Civil society in our country is poorly developed. This is due to the fact that during the existence of the USSR, the real power shifted from the people to the party-state apparatus, and any attempts to take it under the control of the people were suppressed as unconstitutional, counterrevolutionary, etc. However, along with openly state-controlled institutions of civil society in the USSR (trade unions, Komsomol and party organizations) in the USSR and the RSFSR there was and the institute of people's control of power, which, although it depended largely on the party-state apparatus, was often abolished by it for many years, but showed, as we previously noted in our research, high efficiency (in the fight against corruption, embezzlement, cronyism and nepotism in the public administration system, in the fight against theft of collective property collective farms, etc.). ^{[4, pp. 169-185]}

Russian legislation on public control, in particular, Federal Law No. 212-FZ dated 21.07.2014 "On the Basics of Public Control in the Russian Federation" does not contain a detailed list of objects of public control, but it states that public control is carried out in relation to the activities, acts and decisions of public authorities, state and municipal organizations, and as well as other bodies and organizations exercising certain public powers on the basis of federal laws. At the same time, the above-mentioned Federal Law (however, as well as other normative legal acts devoted to public control) does not contain a definition of the concept of "separate public powers". In this regard, in practice, difficulties arise in terms of attributing a particular body (organization) to the category of an object of public control. In relation to the topic of this scientific research, it is of interest to substantiate the need to include in the objects of public control the activities, acts and decisions of regional operators and owners of special accounts that carry out work within the framework of the organization and functioning of capital repair funds in the Russian Federation. The creation and functioning of capital repair funds is perceived ambiguously in Russian society. In addition, an analysis of the payment of mandatory contributions for major repairs in different regions shows that today there is a significant debt on these payments from the owners of the premises of apartment buildings.

The above-mentioned entities are active participants in legal relations related to the organization and functioning of capital repair funds provided for by housing legislation relatively recently in the Russian Federation, in which monthly contributions paid by the owners of the premises of apartment buildings for capital repairs of common property are accumulated.

The Housing Code of the Russian Federation has provided in Article 170 two ways of forming capital repair funds in Russia. ^[5] In the first case, the owners of the premises immediately transfer contributions for capital repairs to the account of regional operators that are created by the subjects of the Russian Federation in the organizational and legal form of the fund. In the second case, the owners of the premises make contributions for major repairs to special accounts, determining by their decision the owners of these special accounts. At the same time, the Housing Code allows the owners of premises to identify a direct regional operator as the owner of a special account. In addition, the owner of a special account may be: a) a homeowners' association that manages an apartment building and created by the owners of premises in one apartment building or several apartment buildings; b) a housing cooperative that manages an apartment building; c) a management organization that manages an apartment building on the basis of a management agreement.

So what justifies the attribution of the above-mentioned subjects of legal relations within the framework of the organization and functioning of capital repair funds in the Russian Federation (owners of special accounts and regional operators) to the category of objects of public control (or rather, their activities, acts and decisions)?

Firstly, the obligation to pay monthly contributions to the owners of premises in apartment buildings for major repairs was imposed on the owners, in addition to their will, by Part 1 of Article 169 of the Housing Code of the Russian Federation and a number of other regulatory legal acts. Unlike them, for example, the owners of individual houses decide for themselves how to carry out major repairs of houses (or not to carry it out at all). Although, if not carrying out major repairs will lead to material damage to third parties, the latter may demand compensation for the specified material damage in court (for example, if the gas supply or electricity supply line was damaged as a result of the collapse of part of the household).

Secondly, regional operators and holders of special accounts are endowed with a number of powers by the current legislation. For example, regional operators are authorized by law to accumulate contributions for major repairs, dispose of these funds, and perform the functions of a technical customer when organizing major repairs (Article 180 of the Housing Code of the Russian Federation). In turn, the owner of a special account (both a regional operator and organizations defined in Article 175 of the Housing Code of the Russian Federation) has a number of powers related to monetary contributions paid by the owners of premises for major repairs, as well as special accounts (for example, he enters into contracts with banking organizations on this occasion). ^{[9; 10]} Contributions for major repairs paid by owners of premises in apartment buildings can be placed on special accounts, as well as accounts of regional operators.

Thirdly, regional operators, which are created in the organizational and legal form of funds by the subjects of the Russian Federation, have a special legal status. In particular, based on the direct instructions of the Housing Code of the Russian Federation, they cannot be liquidated by the subjects of the Russian Federation, and are also subject to bankruptcy proceedings. This circumstance distinguishes them from other commercial and non-commercial legal entities.

However, the organization and implementation of public control over regional operators and holders of special accounts are associated with numerous problems, among which the following can be distinguished:

Firstly, the institution of public control is not enshrined in the Constitution of the Russian Federation, which significantly reduces its authority and significance in the eyes of both the immediate population and public authorities. Unlike this institution of civil society, the institution of people's control of power was not only fixed at the legislative level, but was also incorporated into the Constitution of the USSR and the RSFSR as its union republic. In this regard, it seems necessary to formalize the institution of public control in the Constitution of the Russian Federation, fixing in it its concept, basic principles, goals, objectives, a list of objects and subjects of public control, or an exhaustive list of identifying features, types, forms and methods of public control measures, as well as the mechanism of interaction of its subjects and objects.

Secondly, a certain problem in the organization and implementation of public control over the activities, acts and decisions of regional operators and owners of special accounts is the absence in the Housing Code of the very possibility of organizing and conducting public control measures in relation to the above-mentioned objects.

In this regard, it seems necessary to supplement Article 172 of the Housing Code of the Russian Federation with paragraphs 5 and 6, which should fix the obligation of owners of special accounts and representatives of regional operators to provide representatives of subjects of public control with information, documents related to their activities (within the framework of the organization and functioning of capital repair funds) at their request in connection with organized and the public control measures carried out.

Thirdly, a significant problem in the organization and implementation of public control over the activities, acts and decisions of regional operators and owners of special accounts is the fact that it is not clear which types of subjects of public control should organize and conduct public control activities in relation to the above-mentioned objects. These facilities, on the one hand, are massive and ubiquitous, and on the other hand, they have certain specifics (in terms of organizing and financing major repairs). Moreover, not every subject of public control has the necessary organizational, financial, professional and other potential to organize and conduct the above-mentioned public control measures.

Due to the fact that the amount of money accumulated in capital repair funds during the year amounts to significant amounts nationwide, it seems necessary to consolidate at the federal level the obligation of regional public chambers to create at the level of the subject of the Russian Federation specialized subjects of public control (other organizational structures of public control) - public housing inspections, the main purpose of which It will be the organization and implementation of public control measures in relation to the activities, acts and decisions of regional operators and holders of special accounts. This provision can be fixed in the model regulation on regional control in the subjects of the Russian Federation, which should be approved by adopting a separate Federal Law.

Alternatively, the authority to organize and conduct public control measures in relation to the activities, acts and decisions of regional operators and holders of special accounts should be granted to the public chambers of the subjects of the Russian Federation, as well as to the public chambers (councils) of municipalities of the Russian Federation.

Fourth, a certain problem in the organization and implementation of public control in relation to the activities, acts and decisions of regional operators and holders of special accounts is the lack of elaboration in the domestic scientific and educational legal literature of specific forms, methods and types of public control measures in relation to the activities, acts and decisions of regional operators and holders of special accounts. In this regard, it seems necessary to entrust the organization of scientific and scientific-practical research on these issues to the Public Chamber of the Russian Federation together with the authorized federal executive authority (the Ministry of Construction of the Russian Federation).

Fifth, an important problem in the organization and implementation of public control over the activities, acts and decisions of regional operators and owners of special accounts is the lack of consolidation in the current legislation of measures of criminal and administrative responsibility of these objects of public control for countering the legitimate activities of subjects of public control. In this regard, it is necessary to fix in the Criminal Code of the Russian Federation and the Code of the Russian Federation on Administrative Offenses criminal and administrative-legal structures providing for criminal and administrative-legal responsibility of representatives of objects of public control for countering the legitimate activities of subjects of public control.

Conclusion.

In the course of our scientific research, we have made a number of conclusions, among which the following can be distinguished:

1. The activities, acts and decisions of regional operators and owners of special accounts that carry out work within the framework of the organization and functioning of capital repair funds in the Russian Federation are objects of public control.

2. The organization and implementation of public control over the above-mentioned facilities are difficult due to a number of reasons related to the imperfection of Russian legislation on public control, as well as in the field of organization and functioning of capital repair funds in the country.

3. The resolution of these problems will require the introduction of a system of amendments and additions both to the Constitution of the Russian Federation and to the current legislation: in terms of formalization of this institution in the Basic Law of the country; in terms of fixing the obligation to organize and conduct public control activities in relation to the activities, acts and decisions of regional operators and owners of special accounts that carry out work within the framework of the organization and functioning of capital repair funds in the Russian Federation; in terms of determining the types of subjects of public control authorized to organize and conduct the above-mentioned activities (including by creating new varieties of other organizational structures of public control - public housing inspections); in terms of fixing measures of administrative and criminal liability.