The results of the electronic declaration of the
people's deputies of Ukraine's own funds generated considerable negative
publicity. It became obvious The egregious cases of the inadequate wealth of
citizens who have never engaged in business activities or their positions did
allow them to do it.
At least two factors caused the negative reaction of
the Ukrainian society: 1) the sense of injustice and lawlessness 2) the
traditional Ukrainian envy.
When it comes to the Ukrainian envy, any legal
analysis is powerless, and there is a boundless field for sociologists,
psychologists and psychiatrists to research and investigate.
At the same time, the sense of injustice and
lawlessness, as the determining factor in this case, is the need for a legal
analysis of existing legislation that is aimed at regulating the
entrepreneurial activity, in particular, those provisions of the law that
regulate the limitations of the entrepreneurial activity and define the legal
essence of business in Ukraine.
It seems appropriate to give a priority to the general
provisions of the Ukrainian legislation in the field of human and civil rights
in the context of business activity.
So, the right to carry out business activities is
guaranteed by the Constitution of Ukraine (hereinafter the Constitution). In
particular, Art. 42 of the Constitution states that everyone shall have the
right to entrepreneurial activity that is not prohibited by law.
Thus, the constitutional right of everyone to the
entrepreneurial activity cannot be prevented by any legal act, since the
provisions of the Constitution in Ukraine have the highest legal force.
The constitutional guarantee of the right to entrepreneurial activities
implemented through the provisions of Art. 35 and Art. 50 of the Civil Code of
Ukraine - a person who has attained sixteen and wishes to engage in the entrepreneurial
activity may be registered as an entrepreneur in case of
availability of a written approval from his/her parents (adoptive parents).
Thus, the said provisions of the Constitution and the Civil Code of
Ukraine shall guarantee to every natural person with full legal capability the
right to conduct business activities.
However, the formula “everyone shall have the right to entrepreneurial
activity that is not prohibited by law” gives a reason to talk about
prohibiting only certain type of business, or, in other words, to determine the
scope of social relations in which entrepreneurial activity is not allowed or
restricted.
So, Art. 43 of Commercial Code of Ukraine states that entrepreneurs
shall have the right to perform independently without any limitations any such
entrepreneurial activity that is not banned by the law. At the same time there
are restrictions on conducting of entrepreneurial activity in the Art. 4 of not
acting Law of Ukraine “On Entrepreneurship”.
Therefore, taking into account the provisions of the Constitution and
the above mentioned regulations, it is possible to conclude that the
prohibition may be subject only to a specific type of business activity, but
not the right of person for entrepreneurship.
However, in respect of certain categories of individuals, the law may
set limitations on the conduct of entrepreneurial activity but the law may not
ban the business activity in whole.
Thus, the provisions of Art. 42 of the Constitution states that the
entrepreneurial activity of deputies, officials, and officers of the bodies of
State power and local self-government shall be restricted by law. Taking into
account this “restricted by law”, it seems appropriate to clarify the actual
state of limitation of business activity of deputies, officials and officers in
Ukraine.
In the first approximation, it is necessary to analyze the relevant
provisions of the following regulations: Economic Code of Ukraine (hereinafter
CC), The Law of Ukraine “On State Service”, The Law of Ukraine “On Prevention
of Corruption”.
So in Part 4 of Article 43 of the CC stated that entrepreneurial
activity of officials of state authorities and local governments shall be
restricted by the law in cases, provided by part two, Article 64 of the
Constitution of Ukraine.
In these provisions, two things attract attention: 1) the business
activities of public servants are not prohibited, but only limited; 2) limiting
the business activity of public servants provided by part 2 of Article 64 of
the Constitution.
It should be noted that no restrictions of entrepreneurial activity of
officials of state authorities and local governments provided any part of Art. 64 of the Constitution.
Given the above, it seems appropriate to cite Article 64 of the
Constitution in full:
“Article 64. Constitutional human and civil rights and freedoms
shall not be restricted, unless a restriction is stipulated by the Constitution
of Ukraine.
Under the
conditions of martial law or a state of emergency, specific restrictions on
rights and freedoms may be established with the indication of the period of
effect for such restrictions. The rights and freedoms stipulated in Articles
24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62 and 63 of
this Constitution shall not be restricted.”
It seems clear that Article 64 of the Constitution does not contain any
prohibition or restriction of entrepreneurial activity of officials of state
authorities and local governments.
The second part will be soon.
Editing by Volodymyr Machuskyi jr.
Other post: Ukrainian’s legal culture and civil society
No comments:
Post a Comment