Available in Russian
Author: Olga Benedskaya
Keywords: balance of public and private interests; constitutional justice; market economy focused on social needs; social burden of businesses
During discussions of the interaction between the constitutional justice and policies which may often be heard nowadays, a special emphasis is made on the economic aspects. Though constitutional justice resolves only the issues of law and should not interfere into the discussion of economic advisability, even being interpreted within narrow functional limits, it may not stay at a distance from clarification of economic prerequisites and results of application of the checked norms, or from consideration of the economic consequences of the decisions taken by court. The economy plays a vital part in the politics of a modern state, and the implementation of supremacy and direct effect of constitution in the system of economic legal relations presupposes the existence of the constitutional and legal regime of using the economic freedom, which should not be constrained in an arbitrary and excessive manner and which should be closely tied with the establishment of material basis for the exercise of the state’s sovereignty functions. The constitutional justice is aimed at searching well-balanced approaches to determination of legal features of the social and economic policies, ensuring the development of regulatory and doctrinal fundamentals of the constitutional economy. One of the stress points is the expanding social role of the state and the resulting financial difficulties leading to the growth of various burdens for businesses. In absence of the developed common legal concept of such burdens in the Russian environment where, unlike the Western democracies, their institutional formalization precedes the recognition and ensuring the economic freedom and inviolability of the property, there is a high risk of excessive interference into private matters. Having analyzed the practice of constitutional justice, the author makes an attempt to disclose certain basic constitutional parameters of interrelations between public authorities and businesses as applied to resolution of social tasks as well as to demonstrate its controversial tendencies. Though the idea of the market economy focused on social needs, which is supported by the Constitutional Court of the Russian Federation, neither refutes nor rejects the free market determining such economy, sometimes the constitutional justice practice shows a clear intention to widen the social rights’ defense range at the expense of businesses which is of no benefit both for social protection and strengthening of economic initiatives. In light of the ideas of distinction between the “general” and “specific” social responsibility of businesses being formed in the supranational “soft law” as well as the constitutional principle of balance of public and private interests, the author substantiates the provisions and measures which should be taken into account for harmonizing the relations between public authorities and businesses not exceeding the limits of the latter’s endurance.
About the author: Olga Benedskaya – Attorney, Counselor, “Muranov, Chernyakov and Partners” attorneys collegium, Moscow, Russia.
Citation: Benedskaya O. (2019) Predely vynoslivosti: sotsial'noe bremya biznesa v kontekste praktiki rossiyskogo konstitutsionnogo pravosudiya [The limits of endurance: the social burden of business in the context of the practice of Russian constitutional justice]. Sravnitel'noe konstitutsionnoe obozrenie, vol. 28, no. 1, pp. 61–78. (In Russian).
Andreeva G. N. (2010) K voprosu o ponyatii ekonomicheskoy konstitutsii [Regarding the concept of the economic constitution]. Konstitutsionnoe i munitsipal'noe pravo, no. 7, pp. 9–13. (In Russian).
Barenboym P. D., Gadzhiev G. A., Lafitskiy V. I., Mau V. A. (ed.) (2006) Konstitutsionnaya ekonomika [Constitutional economy], Moscow: Yustitsinform. (In Russian).
Chirkin V. E. (2018) Sotsioekonomicheskaya paradigma rossiyskoy Konstitutsii 1993 goda: plyusy i minusy [Socio-economic paradigm of the Russian Constitution of 1993: pros and cons]. Zhurnal rossiyskogo prava, no. 7, pp. 5–15. (In Russian).
Danilov S. Yu. (2018) Konstitutsionnaya ekonomika v zarubezhnykh stranakh [Constitutional economy in foreign countries], Moscow: Knorus. (In Russian).
Gadzhiev G. A. (2018) Konstitutsionnaya ekonomika i ratsional'nost' v konstitutsionnom prave [Constitutional Economics and rationality in constitutional law]. In: Ezhegodnik Konstitutsionnoy Ekonomiki, 2018 [Yearbook of constitutional economics, 2018], Moscow: LUM, pp. 18–42. (In Russian).
Krokhina Yu. A. (2015) Vliyanie pravovykh pozitsiy Konstitutsionnogo Suda Rossiyskoy Federatsii na formirovanie nalogovogo prava: na primere Postanovleniya ot 2 iyulya 2013 goda No. 17-P [Influence of legal positions of the Russian Constitutional Court on the formation of tax law: on the example of the Resolution of July 2, 2013 No. 17-P]. In: Nalogovoe pravo v resheniyakh Konstitutsionnogo Suda Rossiyskoy Federatsii 2013 goda [Tax law in decisions of the Russian Constitutional Court in 2013], Moscow: Norma, pp. 79–87. (In Russian).
Kruss V. I. (2017) Konstitutsionalizatsiya fiskal'no-ekonomicheskikh obyazannostey v Rossiyskoy Federatsii [Constitutionalization of fiscal and economic responsibilities in the Russian Federation], Moscow: Norma: INFRA-M. (In Russian).
Mel'nikov V. V. (2011) Konstitutsionnye osnovy regulirovaniya ekonomicheskikh otnosheniy v Rossii [Constitutional bases of regulation of economic relations in Russia], Moscow: YuRKOMPANI. (In Russian).
Mokhov A. A. (2016) K voprosu o printsipe social'noy otvetstvennosti predprinimatelya v doktrine i zakonodatel'stve [Revisiting the principle of social responsibility of the entrepreneur in the doctrine and legislation]. Grazhdanskoe parvo, no. 2, pp. 9–12. (In Russian).
Nurtdinova A. F. (2015) Social'naya otvetstvennost' biznesa: pravovye aspekty ekonomicheskoy kontseptsii [Social responsibility of business: legal aspects of the economic concept], Zhurnal rossiyskogo prava, no. 1, pp. 30–46. (In Russian).
Pavlikov S. G. (2016) K probleme “ekonomicheskoy konstitutsii” Rossii [On the problem of “economic constitution” of Russia]. Sovremennyy yurist, no. 2, pp. 64–76. (In Russian).
Pozner R. (2017) Rubezhi teorii prava [Boundaries of the theory of law], Moscow: Izdatel'skiy dom Vysshey shkoly ekonomiki. (In Russian).
Samigullin V. K. (2015) Ekonomicheskiy potentsial konstitutsii [Economic potential of the constitution]. Konstitutsionnoe i munitsipal'noe parvo, no. 4, pp. 6–8. (In Russian).
Sergeev A. M. (2014) Metodologicheskie osnovy i kontseptual'nye polozheniya konstitutsionnoy ekonomiki [Methodological and conceptual foundations of constitutional economics]. Rossijskiy yuridicheskiy zhurnal, no. 3, pp. 7–22. (In Russian).