On criteria for differentiation of the legal regime of Closed Administrative-Territorial Formations

Chereshneva Irina Anatol'evna PhD in Law Junior Researcher; Institute of State and Law of the Russian Academy of Sciences 10 Znamenka str., Moscow, 119019, Russia iachereshneva@gmail.com Other publications by this author

Territories of advanced development (hereinafter referred to as TOP), being one of the types of territories with a special preferential regime for entrepreneurial activity ^[1], are considered as a tool to stimulate the development of closed administrative–territorial entities (hereinafter referred to as BUT) ^[2], including through the activation of economic activity of business entities, attracting investment, modernization and infrastructure development. In modern realities ^{[3, 4]}, attention to CSOs is only increasing, which raises the question of the need to attract additional resources (financial, human, scientific, technological, managerial) that can give an impetus to the disclosure of their potential (innovative, personnel, cluster, etc.). At the same time, the specifics of CSOs, due to the importance of ensuring the country's defense and state security, the technological sovereignty of the Russian Federation, the development of high-tech sectors of the economy, imposes certain restrictions on the use of traditional economic instruments to stimulate socio-economic development.

Business entities that are considered as partners of the state in distributing financial, investment, human (in the sense of human capital) and other burdens within the framework of a public-private partnership ^[5] may not always participate in such cooperation. This aspect is due to special requirements for ensuring the safe functioning of organizations and facilities located on the territory of the ZATO, the protection of state secrets, increased control over the activities of strategic enterprises and strategic joint-stock companies, as well as related restrictions. And this, in our opinion, is advisable, because the state should be careful about allowing businesses to enter "closed cities." At the same time, such a balance should be justified, i.e., where it is considered possible, the resources of the business community should be used for the benefit of the whole society: to achieve the common good. In our opinion, this is consistent with the position of A. G. Bykov, according to which "the state, since it is proclaimed by the Constitution of the Russian Federation as a social state, has the right and is obliged to assign social functions and decisions to entrepreneurial activity (the basic and only social form of organization of economic activity for the production and sale of a marketable product developed by modern civilization). social tasks" ^[6]. In this regard, it is important to differentiate the legal regime of the ZATO, which will take into account the specifics inherent in each territory, and at the same time maintain a balance between government regulation and entrepreneurial initiative.

In the literature, there is a classification of BUT according to the departmental subordination of the city-forming object, within which the following division is carried out: 1) The Ministry of Defense of the Russian Federation; 2) the State Atomic Energy Corporation Rosatom (hereinafter – Rosatom); 3) The State Corporation for Space Activities Roscosmos (hereinafter – Roscosmos) ^[7]. At the same time, as D. Y. Faykov rightly notes, the departmental affiliation of a settlement is of great importance due to the fact that, among other things, "socio-economic conditions in the settlement, the level of development and orientation of infrastructure, and the settlement development strategy depend on it."^[7] In addition, the scientist also draws attention to the existence of a certain subjectivism on the part of a particular agency regarding the prospects for the development of the University ^[7], which may indirectly affect the efficiency of the city-forming facility and the university as a whole. This, in turn, indicates the relationship of dependence of the city-forming object of the municipality (often acting as a city-forming enterprise that ensures the maintenance of a stable socio-economic situation of the entire municipality) on the departmental organization. This raises a question about the management model of the company ^[8].

Thus, the doctrine presents the following managerial triad operating in the government: "1) ordinary state authorities; 2) local self–government bodies, which, on the one hand, are endowed with additional powers, on the other - are limited in the exercise of part of their own powers; 3) the relevant department" ^[9]. In turn, with regard to the management system for the diversification of the military-industrial complex (hereinafter referred to as the defense industry), three levels of management are also distinguished, but they look somewhat different – federal, sectoral (departmental) and enterprise level ^[10]. Thus, both in general and in particular cases, there is a specialized agency that has a direct impact on the socio-economic situation of the population. In this regard, it seems that the starting point is the differentiation of both the legal regime of business and the special legal regime of entrepreneurial activity, as well as the possibility or impossibility of using economic instruments (for example, attracting private investment), the implementation of public-private partnerships (in its broadest sense) ^[5], and the "privatization" of government functions. ^{[11, 12, 13]} and others, there may be a profile subordination of the city-forming object of the district.

The following illustration supports this thesis. All territories of advanced development that have been created within the boundaries of the district (Decree of the Government of the Russian Federation dated 02/06/2018 No. 114 "On the creation of the territory of advanced socio-economic development "Zheleznogorsk", Decree of the Government of the Russian Federation dated 07/05/2018 No. 785 "On the creation of the territory of advanced socio-economic development "Zarechny", Decree of the Government of the Russian Federation dated 02/12/2019 No. 131 "On the creation of the territory of advanced socio-economic development "Lesnoy"", Decree of the Government of the Russian Federation dated 12.02.2019 No. 130 "On the creation of the territory of advanced development "Novouralsk"", Decree of the Government of the Russian Federation dated 06.02.2018 No. 113 "On the creation of the territory of advanced socio-economic development "Ozersk"", Decree of the Government Russian Federation No. 481 dated 04/20/2017 "On the Creation of the Sarov Priority Development Territory", Decree of the Government of the Russian Federation No. 132 dated 02/12/2019 "On the Creation of the Seversk Priority Development Territory", Decree of the Government of the Russian Federation No. 115 dated 02/06/2018 "On the Creation of the Snezhinsk Priority Socio-Economic Development Territory") indirectly"They are subordinate to Rosatom, which has the authority to exercise on behalf of the Russian Federation the rights of a shareholder of Atom-TOR JSC, which, in turn, is a management company, i.e. a special entity that carries out public organization of business activities on TOP in the United States.

As a result, we can talk about the conditional entrepreneurial orientation of the above-mentioned "nuclear" companies, since a special preferential regime for carrying out entrepreneurial activities through the creation of TORS is established within their borders. Thus, on the one hand, business entities can receive preferences provided by the state under such a regime (for example, tax benefits), on the other hand, in return, the state expects to stimulate the socio–economic development of the region, including through entrepreneurial activity and business involvement.

A similar trend is evident in the indirect participation of Rosatom through Atom-TOR JSC. Despite the fact that the latter "tries on" a private–law form, being a joint-stock company subject to private law, at the same time it performs the functions of managing the TOP established in the territories of the Russian Federation, where Rosatom's institutions, its joint-stock companies and their subsidiaries, as well as subordinate enterprises, are located by type of activity. which were created by BUT (clause 4.1.1 of the Charter of Atom-TOR JSC dated 08/18/2020), i.e. public functions. In turn, in accordance with Article 2 of Federal Law No. 317-FZ dated December 01, 2007 On the State Atomic Energy Corporation Rosatom, Rosatom is authorized on behalf of the Russian Federation to implement: 1) state management of the use of atomic energy; 2) state management in carrying out activities related to the development, manufacture, and disposal of nuclear weapons and nuclear power plants for military purposes; 3) regulatory and legal regulation in the field of the use of atomic energy.

In addition, it is noted in the literature that Rosatom has a holding structure, within which the following large scientific and production complexes are allocated: 1) nuclear fuel cycle enterprises, 2) nuclear engineering enterprises, 3) nuclear weapons complex enterprises, 4) industry research institutes. In turn, these complexes also include a number of divisions and other structures ^[14]. At the same time, it is necessary to separately indicate such a category as "integrator", which is "an organization headed by a consortium of industry enterprises with competencies in a certain field of activity in which they can enter the markets of new (civilian) products." ^[14]. In fact, the main activity of the integrator is to redistribute the competencies of industry enterprises through: 1) combining them; 2) filling in missing or insufficient competencies (for example, marketing services), including through the involvement of third-party organizations (in relation to the holding structure) ^[14], i.e. in this case we are talking about classical outsourcing (using an external source to provide missing resources ^[15]). In this regard, we note that the Charter of Atom-TOR JSC provides for the possibility of the joint-stock company carrying out the activities of advertising agencies (clause 4.2.10 of the Charter of Atom-TOR JSC dated 08/18/2020) as well as other services, including consulting services provided to residents of TOP.

Thus, we can say that within the framework of the TOC, on the territory of which the TOC was established, Rosatom carries out direct (managerial triad operating in the TOC) and indirect (with the help of Atom-TOR JSC) state regulation of the economy, i.e. it uses both directive (public law instruments) and indicative methods of government regulation (for example, incentives) ^[16]. As a result, there is a greater opportunity to use a different arsenal of private law and public law means, including in their interrelation, compared with those countries within whose borders there are no TOP, since the latter, as a rule, are directly influenced by the state. As an example, the plan approved by the Government of the Russian Federation for the renovation of the BUT (subordinate to the Ministry of Defense of the Russian Federation (BUT Severomorsk)) and military garrisons of the Murmansk Region for 2024-2026 (as part of the provision of the Arctic "Single Subsidy" to the Murmansk Region).

In this regard, the recommendations made by the Federation Council Committee on Federal Structure, Regional Policy, Local Self‑Government and Northern Affairs following the results of the retreat "Topical issues of the development of closed administrative‑territorial entities" (Decision on the results of the retreat "Topical issues of the development of closed administrative-territorial entities" dated 10/21/2024) are interesting. of which are aimed at the implementation of public legal means. As an illustration, we give the following:

1) at the level of the Government of the Russian Federation, amendments are made to strategic planning documents developed within the framework of planning and programming by including comprehensive measures to support and develop BUT;

2) at the level of federal executive authorities, the development of additional mechanisms to support small and medium–sized businesses that operate on the territory of the Russian Federation (Ministry of Economic Development of the Russian Federation);

3) at the level of the constituent entities of the Russian Federation, the provision of targeted inter–budget transfers to the budgets of the regions (for example, for the modernization of communal and social infrastructure facilities) by allocating additional funds from the regional budget;

4) at the level of local governments, the creation of industrial parks and industrial technology parks in the region, including through the use of support mechanisms provided by the Ministry of Industry and Trade of Russia.

An analysis of these provisions suggests that, firstly, the potential of entrepreneurial legal means (combining private law and public law principles) has not been used (even as recommendations); secondly, relevant departments that play one of the key roles have been "ignored". Third, all recommendations are of a general nature, i.e. they do not take into account the specifics of some legal systems due to the existing differentiation of their legal regime.

Thus, in our opinion, it is possible to formulate the following criteria for differentiating the legal regime of small towns as one of the types of territories with a special protective regime for entrepreneurial activity, the totality of which, when used as a "template", will make it possible to determine the permissibility of increased involvement of business entities in the socio-economic development of small towns:

1) departmental affiliation of the city-forming facility of the Ministry of Defense of the Russian Federation, Rosatom, Roscosmos);

2) the nature of the activities carried out in organizations and (or) at facilities located on the territory of the BUT (for example, the development, manufacture, storage and disposal of weapons of mass destruction; processing of radioactive and other materials of an increased danger of a technogenic nature): closed-type BUT and open-type BUT. Within the framework of the latter, more opportunities are provided for the use of private law means, for the active participation of business entities, the implementation of public-private partnership mechanisms, and the creation of priority development territories within the borders of the United States. It is of this type that those butos on the territory of which the TORs operate belong.;

3) the nature of the relevant agency's participation in the socio-economic development of the economy: direct (mainly administrative means of state regulation of the economy are used), indirect (mainly or equally with administrative means economic means of state regulation of the economy are used);

4) the "interest" of the relevant department in improving the socio-economic situation of the population: strong, medium, weak.

In conclusion, we would like to point out that, as the doctrine rightly notes, "the multiplicity of roles of the modern state in the economy presupposes the search and implementation of an optimal balance between regulation and stimulation of economic activity of business entities by the state, between administrative coercion and state support for business" ^[17]. In this regard, we believe that the outlines presented above (the essence of the criteria) of the model of differentiation of the legal regime of the BUT (departmental affiliation of the city-forming object of the BUT (1); the nature of activities carried out in organizations and (or) at facilities located on the territory of the BUT (2); the nature of the participation of the relevant department in the socio-economic development of the BUT (3); the "interest" of the relevant department in improving the socio-economic situation (4)) can not only serve as an illustration of such a balance, but also serve as a guideline for determining their "entrepreneurial" openness.