Methodological foundations of the study of state control in the field of insolvency (bankruptcy): analysis and evaluation

Pivovarova Ol'ga Vladimirovna ORCID: 0000-0002-1755-5972 PhD in Economics Senior Researcher; Financial University under the Government of the Russian Federation 125009, Russia, Moscow region, Moscow, Tverskaya str., 22B, p.3, office 310 olga_piv@mail.ru

Sheludko Artem Sergeevich Postgraduate student; Department of Legal Support of Public Administration and National Security; Russian Presidential Academy of National Economy and Public Administration; Ural Institute of Management 66, 8 Marta str., Yekaterinburg, Sverdlovsk region, 620144, Russia artemshel@yandex.ru

The study of state control in the field of insolvency (bankruptcy), associated with state legal reality as the most complex phenomenon of modern society ^{[1, p. 39]}, is part of the public law sciences and, despite certain specifics of the object and subject of knowledge, is characterized by a similar methodology and appropriate research methods, which to varying degrees They are used to solve research problems. In this regard, it seems reasonable, considering and defining methodological approaches to the study of state control in the field of insolvency (bankruptcy), to turn to the general methodology of the theory of state and law, which is the basis for public law sciences, covering not only jurisprudence, but also public administration in general.

To achieve the set research goal, the authors used general scientific methods of cognition (analysis, synthesis, logical), which made it possible to evaluate the established methodological approaches in the theory of state and law and interpret their structure and content on the phenomenon under study. The authors also applied the dialectical method of cognition in the study of the nature of the institution of insolvency (bankruptcy), revealing its multidimensional nature, which made it possible to use the method of abstraction and concretization in relation to complex socio-economic processes and phenomena.

The question of the methodology of the theory of state and law, being a fundamental general theoretical issue, has been the subject of discussion by scientists for quite a long time ^{[2, pp. 78-84]}. For example, V. D. Perevalov, considering the methodology of the theory of state and law as conditions and forms of scientific knowledge, foundations, principles and methods of research of these categories, identified three main groups of methods of research of state and law: philosophical, general scientific and private scientific ^{[3, pp. 194-196]}. L. A. Morozova adheres to a similar position, classifying all methods of cognition into three similar groups ^{[4, pp. 76-77]}:

- general philosophical or philosophical methods, which include universal methods of philosophical cognition (dialectical logic, metaphysics), which form the methodological basis and are applicable to any branch of science;

- general scientific (general) methods that are common to a number of sciences (for example, humanities), but special in relation to general philosophical ones. Such methods include L.A. Morozova and other scientists who adhere to a similar point of view, the historical method, the method of system analysis, mathematical and logical methods, etc.;

- private scientific (special) methods, to which the author refers "the use of scientific achievements of technical, natural and related social sciences by the theory of state and law" - statistical method, modeling, socio-legal experiment, synergetic methods, as well as legal methods proper, to which L. A. Morozova refers comparative legal (consisting in comparison state and legal systems, institutions, categories in order to identify similarities and differences between them) and formal legal (involving the study of the internal structure and laws of the state and law in terms of identifying the most important properties and features, their classification, as well as techniques for interpreting legal norms and acts, systematization of state-legal phenomena) methods.

According to M. I. Baitin, methodological approaches to the study of the theory of state and law should be divided not into three, but into two enlarged groups of methods – general and private. At the same time, the author refers to the general variety of philosophical and general scientific methods of cognition, laying the basis for the proposed classification of their applicability to a variety of sciences and all spheres of theory of state and law, which, according to his approach, eliminates the need to divide into two additional groups (philosophical and general methods of cognition). Private methods are understood by M. I. Baytin as being used to study certain sciences or spheres of state and law of interest to the researcher. He includes functional, systemic, comparative, statistical methods, modeling methods and specific sociological research, etc. ^{[5, pp. 6-9]}

Another approach to understanding the methods of state-legal cognition is to identify four groups, which differs from those already considered in that, in addition to groups of philosophical and general scientific methods, private scientific methods are divided into two independent groups. Thus, A. N. Golovistikova and Yu. A. Dmitriev argue that private scientific methods can be divided into ^{[6, pp. 282-286]}:

- special non-legal methods used within the framework of a certain science, but not having a specific specification in relation to the theory of state and law, to which it refers: general social methods (observations, surveys, interviews, etc.), statistical and cybernetic methods, methods of structural analysis);

- special legal ones used exclusively for the study of the theory of state and law in general, as well as its individual spheres and branches. In their classification, A. N. Golovistikova and Yu. A. Dmitriev refer to such methods as formal-logical, comparative and historical methods.

The proposed classification is also controversial, since the attribution of the historical method to a specially legal one is not fully correct, since this method, representing the consideration of the studied object in its chronological development in its entirety, is applicable to almost all spheres of knowledge and refers to general scientific ones. This is equally applicable to the comparative method, which in the context of legal disciplines is transformed into comparative law, which is confirmed by many scientists and experts ^[7].

Despite the highlighted disadvantages of the proposed classification, the idea of the need to separate private scientific methods into those developed and actively used by other sciences, which are also applicable to the theory of state and law, and special ones peculiar only to jurisprudence, seems quite justified, since it allows defining and modifying research methods within the last two groups, taking into account the specifics of the object and subject of study a specific area of state and legal knowledge.

In this regard, the classification of V. I. Chervonyuk's methods of research on the theory of state and law is as exhaustive as possible ^{[8, pp. 24-27]}:

1. The universal philosophical method, universally used in all specific sciences at all stages of scientific knowledge (dialectical, metaphysical, empirical methods, etc.);

2. General scientific methods through which the universal philosophical method is revealed within the framework of specific sciences, among them: induction and deduction, analysis and synthesis, comparison, a systematic approach, historical and logical methods, etc.;

3. Special methods developed by specific sciences and applied in law: psychological, statistical, mathematical, cybernetic, specifically sociological, etc.;

4. Private law or special legal methods used at the stage of knowledge of legal practice, taking into account the peculiarities of the field under study: formal logical, legal-technical, dogmatic method, comparative legal method, methods of interpretation of law, method of state-legal modeling and method of law-making experiment.

At the same time, V. I. Chervonyuk paid special attention to the use of the presented tools of legal knowledge only in their entirety, since only in this case it is possible to obtain a sufficiently exhaustive result.

The author's analysis of the methodology of the theory of state and law formed to date has allowed us to propose an appropriate methodological approach to the study of state control in the field of insolvency (bankruptcy), represented by a set of four groups of cognitive methods, taking into account the specifics of the object and subject of research (Fig. 1).

Figure 1 – Methodological approach to the study of state control in the field of insolvency (bankruptcy)

Source: compiled by the author.

Let's take a closer look at the specifics of the application of each group of methods in the context of this area.

Philosophical methods are of particular importance because they provide the basis, the basis for understanding the general principles of state control and the features of insolvency (bankruptcy) through, mainly, the dialectical method of cognition. Its application allows you to gain an understanding of the content and essence of the studied categories and phenomena, considering them objectively and taking into account all possible sides and levels of knowledge, including the existing essential contradictions. For example, state control in the field of insolvency (bankruptcy) is associated with the implementation of a special managerial role of the state in conflict economic relations, where it is a special subject of law expressing public interests that combine ^{[9, p. 37]}, on the one hand, the interests of organizations, social strata, society as a whole, and on the other hand, private interests ^{[10, pp. 37-39]}. A number of specialized researchers see in this realization of state interest in the field of market relations a contradictio in subjecto (contradiction in the subject itself - Latin), since the emerging principles of state interest are manifested in the fact that "it can and should in certain cases contradict the interests of the individual, defending the public, contradict the public, guaranteeing the rights of everyone" ^{[11, p. 14]}, which draws attention to the need to apply the method of dialectical materialism in this regard.

General scientific methods in the context of the study of state control in the field of insolvency (bankruptcy) represent the most numerous group of methods, since they, unlike philosophical ones, do not cover the entire scientific knowledge, but are applied only to certain stages of research ^{[12, p. 124]}. For example, the historical method of scientific cognition is of priority importance at the initial stages, since it allows us to study the processes of formation, dynamics of legal consolidation and stages of legislative registration of norms and provisions underlying the relations of state regulation in the field of insolvency (bankruptcy). At the same time, the combined application of the logical method allows us to study the specifics of state control specifically in relation to the institution of insolvency (bankruptcy) from the point of view of administrative and legal regulation in accordance with the objectives of the study, and not the entire complex of interrelations arising in the process of functioning of this mechanism.

The analysis and synthesis of scientific information take place both at the theoretical and empirical stages of research. For example, analysis plays a great role at the stage of highlighting the features of administrative and legal regulation of state control in the field of insolvency (bankruptcy) in the Russian Federation, as well as in studying the powers and competencies of public administration bodies in its implementation. At the same time, synthesis and a systematic approach are especially important when systematizing and classifying the types of bodies that carry out control (supervisory) measures in the implementation of public administration in the field of insolvency (bankruptcy). Without the property of consistency, state control, as an integral part of public administration as a whole, cannot take place, since it involves many structures and officials who carry out appropriate management decisions and actions. Only a systematic approach in the organization of state control can give it the necessary consistency, coordination, subordination, purposefulness, rationality and efficiency ^{[13, pp. 37-38]}, which determines the expediency of using this general scientific method in the research methodology proposed by the author.

Given the key purpose of the study of state control in the field of insolvency (bankruptcy), which consists in the need to improve the administrative and legal mechanism that ensures its functioning, it seems advisable to use such a general scientific method as idealization. The essence of this method is to present something in a more perfect form than it actually exists. With the help of the idealization method, a scientist gets the opportunity to create a model of a real object endowed with perfect properties, which allows him to evaluate real objects, analyze trends in their positive and negative development ^{[14, p. 3-4]}. This method is especially important for public administration, since the institutional mechanisms that ensure the functioning of individual spheres and elements are far from perfect and require development ^{[15, p. 91]}, which is also relevant for the institution of insolvency (bankruptcy).

Among the private scientific methods, given the direct relationship of bankruptcy to the market economy, a special place is occupied by the methods of economics, namely statistical. Its essence lies in the collection of relevant statistical information, its processing and analysis through a system of indicators ^{[16, p. 48]}. In the context of the study of state control in the field of insolvency (bankruptcy), this is reflected in the analysis of the dynamics of the results of bankruptcy proceedings in bankruptcy cases of organizations, the results of property sale procedures, etc., which is necessary and important for understanding trends and identifying problems in Russian practice at various stages, and accordingly is an integral component of the methodological approach. Additionally, it reveals the possibilities of the statistical cybernetic method, which relates to economic and mathematical ones and allows studying the specifics of the institute of insolvency (bankruptcy), including in the practical part, using modern technical achievements such as computer programs (Unified Federal Register of Bankruptcy Information, Unified Federal Register of Legally significant information about the facts of activity of Legal Entities, individual entrepreneurs and other subjects of economic activity, the State automated system "Justice", etc.), mathematical models (which is especially relevant in terms of analyzing the financial statements of an enterprise), etc. ^{[17, pp. 198-200]}

The inextricable link between state control and public administration, since control is an integral part and function of it, determines the expediency of using private scientific research methods from the field of public administration ^{[18, pp. 50-51]}. One of the main ones is an institutional analysis, the essence of which is to isolate the subjects of management, study the conditions for the democratization of public administration, and acquire the characteristics of public administration. A feature of the institutional approach in the context of studying state control in the field of insolvency (bankruptcy) is the simultaneous fulfillment of roles by participants in this process as subjects and objects of management, which is due to the social nature of the relationship. In this regard, the key task that the institutional method is designed to solve is the theoretical justification and legislative formalization of the principles of organization and functioning of the system of state control in the field of insolvency (bankruptcy), violation of which inevitably entails liability.

Another method of public administration, the use of which is due to the complex structure of the structure of the state control system, is functional and structural analysis, which involves focusing the researcher's attention on the classification of functions, differentiation of structural units, organizational mechanisms in public authorities and relevant responsible structures and the entire system of state control as a whole ^{[19, pp. 43-45]}. The importance of the highlighted research area in the context of the need to improve the administrative and legal mechanism of state control in the field of insolvency (bankruptcy) is difficult to overestimate, since the question of the functions of the state apparatus and the forms of their implementation is fundamental, predetermining the patterns of organization of the public administration system as a whole. It is the study of the functional features of state control in the field of insolvency (bankruptcy) that contributes to a real assessment of its capabilities and problems, a deeper understanding of the mechanism of its interaction with other institutional structures in solving substantive problems. The result of the application of functional and structural analysis should be the optimization of the entire administrative and legal mechanism by eliminating the vagueness and multiplicity of relevant structures, duplication of their activities, a more substantive justification of the diversity of regulatory regulation of activities in the field of insolvency (bankruptcy), the formation of an integral legislative framework defining and regulating status, structural, organizational and procedural elements, duly coordinated with each other.

Given the large number of participants in the bankruptcy procedure, it is also necessary to apply such a private scientific method as a communicative analysis aimed at studying official (legally regulated) and informal (business and informal) relations in their diversity (horizontally and vertically, in interaction with government agencies, public institutions, organizations and citizens) . As a result of the application of this method, it is assumed to identify barriers and obstacles that impede mutual understanding and cooperation of participants in the insolvency (bankruptcy) procedure, the passage of information, as well as the understanding of technologies and measures that contribute to the streamlining of the communicative subsystem.

Also directly related to communication activities and significant for the theory of state and law in general and the study of state control in the field of insolvency (bankruptcy) is the method of sociological research, consisting in conducting a questionnaire, interview, observation or social experiment ^{[20, pp. 125-128]}. The use of this toolkit complements and expands the results of the above-mentioned communicative analysis, allowing you to identify problems that arise directly from participants in bankruptcy proceedings in practice, which is especially important from the point of view of developing practical recommendations.

The group of special legal methods directly related to the specifics of the subject of research includes comparative legal and formal logical methods. The application of the comparative legal method of scientific knowledge allows us to analyze and evaluate the possibilities of applying in the Russian system of state control in the field of insolvency (bankruptcy) extensive doctrinal, regulatory and law enforcement material accumulated in a similar field in foreign countries. Considering the relatively "young" age of this institute in Russia, as well as the dynamic changes taking place with it, the assessment of foreign experience is especially significant, since it allows us to identify the most effective solutions in order to implement them into domestic practice.

The essence of the formal logical method, which is traditional for legal science, in the context of this study consists in studying the internal essential structure of the system of state control in the field of insolvency (bankruptcy), its most important properties, classification of the main features, definition of legal concepts and categories, establishment of methods of interpretation of legal norms and acts, systematization of related state-legal phenomena ^{[21, p. 79]}.

Thus, as a result of the conducted critical analysis of various positions of scientists and experts on the methodology of state-legal phenomena, the author managed to form a comprehensive methodological approach to the study of state control in the field of insolvency (bankruptcy), consisting of four groups of methods (philosophical, general scientific, private scientific, special legal), which cover a fairly wide cognitive toolkit and they meet the objectives of the study. Its application will make it possible to comprehensively study the institutional and legislative support for the functioning of the administrative and legal mechanism of state control in the field of insolvency (bankruptcy) and develop relevant directions and measures to improve it.

At the same time, it should be noted that the presented list of methods is not exhaustive and can be supplemented by others from the four groups presented, depending on the aspects of the research tasks in the field of insolvency (bankruptcy), since the methodology as a whole as a system of relevant methods of cognition is in constant motion and in terms of content will always be updated with new modern methods that meet the requirements of the researcher's requests.