Azat Peruashev: Business needs simple and clear rules: how to live and work
Work has begun in Parliament on a law that some media have called - no less - a constitution of business. This is a draft of the Enterprise Code, which was presented in Majilis last week. The idea of developing such a document a couple of years ago provoked heated debates, and the venerable lawyers and deputies unanimously declared its uselessness. According to them, it appeared that the emergence of the Code of Entrepreneurs would pose a threat to the proper implementation of the Civil Code, on which economic relations are built today. The same doubts were voiced in the parliament this time too, so the battles around the new project, it seems, will not only continue, but also get a tendency towards aggravation. Nevertheless, a working group has been created. And it was headed by a man whose competence in business matters does not cause doubts even among the most ardent opponents.
Moreover, it was this deputy who, as he put it, made a “dissonance” against the friendly choir of opponents of the Business Code during the presentation. However, Mr. Peruashev and his colleagues from “Ak Zhol” party are not strangers to explaining to the interlocutors “on the fingers” the alphabet of business and arguing with the majority.
Azat Turlybekovich, they call you one of the developers of the Code of Business. Probably because you stood up for this bill, although many deputies from the party of the authorities smashed it to smithereens?
- This is not exactly the right information. The need to adopt such a document, we and our colleagues really began to discuss in "Atameken" on the eve of the last crisis. But, actually, the bill was prepared by the Ministry of Justice since 2011, and the previous versions were rejected by the ministry itself at the development stage.
It should be noted that the leadership of the ministry provided a fairly open discussion format, I personally participated in several international conferences on this issue. And he stated that it would be better to abandon this idea altogether than to accept those projects that were then discussed.
- Why now suddenly supported?
First, this is another document, at least the third option. And here a number of points that caused our criticism are largely taken into account. Secondly, he supported the following condition: do not rush the working group to the detriment of the quality of the draft law. I know that in this case we will be able to make a normal, working law out of the available material. Vice-Speaker Dariga Nazarbayeva on this occasion noted that the bills coming from ministries, as a rule, have to be processed by 60 percent or more. And here is such a case. - Why is it now suddenly supported?
Well and, besides, I really think this document is necessary and relevant. Think for yourself: the requirements governing the activities of a business are scattered in dozens and even hundreds of laws. These are “On Private Entrepreneurship”, “On the National Chamber of Entrepreneurs”, “On State Control and Supervision”, “On Subsoil Use”, “On State Procurement”, “On Economic Partnership”, “On Production Cooperative”, “On Joint-Stock Companies” , “On Bankruptcy”, “On Banks and Banking Activities”, Tax and Customs Codes, even the National Health Code - do not list everyone. I once made a comparison with China: there are about 300 laws successfully operating on the 1.5 billion economy. We have a population of 100 times less - the laws are 10 times more. But their surplus is compensated by the performance drawbacks. It is clear that large corporations have entire departments of the best lawyers, they can afford to hire specialized law firms for which to delve into the maze of laws is pleasure and the main work. And what about the notorious small and medium-sized businesses, where often the entire legal service is represented by a single lawyer, and an inexpensive one, without ties and regalia? Or an individual entrepreneur, who himself and the head, and the employee? There are not many people with legal education among SP. Professional and economic knowledge is more important for them. But the SME is 99% of all business entities.
But business is always a relationship with partners, customers, finally checking. And this relationship is often controversial. What to do to hundreds of thousands of small and not very "merchants" in such cases: shovel hundreds of volumes of unknown laws? The practice of specialized codes uniting the most important laws for business has long existed in the world. These are the Commercial Code of France, the German Commercial Code, the Uniform Commercial Code of the USA and others. It is also extremely important that codification makes it possible to identify the existing contradictions between different laws and bring their norms into a single system. This approach greatly simplifies the life of an entrepreneur, which is especially important in modern times.
- Why are your colleagues from the parliamentary majority, and the leading civil law authorities, such as, for example, Maidan Suleimenov, categorically opposed to the very idea of an entrepreneurial code?
- Maidan Kuntuarovich, of course, an authoritative expert in matters of civil and commercial law. His arguments are understandable and must be reckoned with, first of all, in the part where he speaks of the inadmissibility of the “revision” of civil law and the fragmentation of the unified legal system into parts that can introduce contradictions and undermine existing relations in society. I therefore speak of the need for careful study of the project without undue haste, because I share Mr. Suleimenov’s opinion about the risks of ill-considered decisions.
On the other hand, we must take into account not only the opinion of lawyers, but also the interests of the business itself. And business needs simple and clear rules: how to live and work. The current situation with the legislative regulation of entrepreneurship, perhaps, suits the lawyers. But only because they are not entrepreneurs themselves.
Yes, a tailor who sews a costume for you has its own principles: for example, sew with strong threads. But to wear it to you, and besides the strength of the seams, you want your costume to be comfortable, not to press and not to choke, to have all its details fit as one, and not by themselves. We will try to sew such a convenient and modern "suit" for our business. If he presents risks to the stability of the economy, as some authoritative jurists fear, I think the working group will have the responsibility to prevent such a bias. In any car there must be both a gas pedal and a brake pedal.
Do not forget about the historical factor. The current economy and economic relations are significantly different from those that were twenty or even more than thirty years ago. The right should be developed together with the whole society, moreover, to shape this development, and not just to say "This can not be, because there can never be." We do a lot for the first time, do not be afraid of it.
Well, but did you, at the presentation of the code, make a number of serious complaints to the developer?
- Yes, and I confirm these claims. For me, the principle by which the norms of some existing laws were included in the code (with the formulation of the laws themselves for loss) remained unclear, while others did not touch. It is also unclear whether these norms have been revised and brought to a common denominator?
If the code just mechanically collected 11 or 12 laws, then they will not become a code from this, as a dozen cats will not become a tiger. We need not a collection of laws on entrepreneurship, but their systematization, bringing to one platform, elimination of contradictions, strengthening of positive tendencies. And we did not see this at the presentation.
If the code simply collected the laws that mention entrepreneurship, then this list is incomplete. And the developers themselves note that about 20 more laws on this subject have remained outside the scope of the code. I can call a hundred more. Why then some laws included, while others do not? For example, why did they not include the Law on Subsoil Use, which regulates the activities of the largest companies in our economy, including foreign investors? The law "On public-private partnership", since the code, as the developers explained, regulates primarily the relations of the state with the business? The same tax and customs regulations?
And vice versa: why did they include in the code and put for loss the Law “On Technical Regulation”, which concerns product safety for consumers, including the life and health of our citizens? Already today, the Consumer Protection Agency claims that 70% of imported goods are not tested and are not certified for safety. And if we follow the principle of a code - the easing of conditions for business - then we will generally abolish the control over what our people eat, drink and consume, including children. This is a fundamental question! I support the deputies from Nur Otan, Gleb Shchegelsky, Zagip Baliyev, Ramazan Sarpekov, and I am confident that the Law “On Technical Regulation” should be removed from here and left as independent law.
It is the same with the Law “On State Control and Supervision”, which was pointed out by our colleague Serikzhan Kanaev. Let me remind you of the background: in 2005, when adopting the Law on Private Entrepreneurship, it included a whole section on business audits. However, later, when the Law “On State Control” was passed, a section from the Law “On Entrepreneurship” was moved there, and all the rules on business protection were removed. Our objections that state control should be engaged not only in business, but also in other areas - no one then heard.
Now it is proposed to transfer the content of the Law “On State Control and Supervision” to the Code, and exclude the law itself. It turns out, control concerns only private traders. But what about the government agencies, schools, hospitals, national companies, enterprises with state participation? After all, there are the main embezzlement of budgetary funds, and not in small and medium business.
At the same time, for some reason, companies dropped out of the code, where 50% of shares and more belong to the state, the so-called. quasi-public sector. But this is also entrepreneurship, and even at public expense. Their activities also need to be regulated.
- Vice Speaker Dariga Nazarbayeva also drew attention to the lack of attention to medium-sized businesses in this bill.
This problem is generally some kind of systemic failure in the heads of our officials. Or selective deafness. Judge for yourself: President Nursultan Nazarbayev from year to year, from assignments to assignments requires to support small and - I emphasize! - Medium business to bring its share of GDP to 50%.
And in all laws, including this code, the benefits and preferences are laid only for small businesses. Meanwhile, small business is mainly trade and services. Real production, especially in the manufacturing sector, begins with medium-sized businesses. Dariga Nursultanovna gave a clear statistics: despite the fact that medium-sized enterprises make up only about 5% of the entire business, they provide 17% of jobs and produce 73% of all products in the country.
Therefore, helping only small enterprises, state bodies themselves stimulate trade and make production less attractive. That's why selling other people's goods in Kazakhstan has long been profitable and easier than producing your own.
We also repeatedly paid attention to this imbalance. On December 19, 2013, the Ak Zhol faction sent a deputy request for the release of the newly created medium-sized business from inspections along with small businesses. On January 31, 2014, we introduced our own bill in which we proposed to extend state support measures to medium-sized businesses. On November 5, a new deputy request was sent, on November 13, a statement was made in support of medium-sized businesses at a briefing in the Central Communications Service. However, the authorized state bodies invariably answered with a refusal: for example, the response of the then government to the request of December 19, 2013 stated that “it is advisable to adhere to the position on exemption from inspections only of small businesses”.
Maybe now, when the majority party has taken up the topic of medium-sized business, can we together break through this wall? In any case, in my person colleagues received a firm ally in this matter, and we are determined.
- Journalists also aroused the interest expressed by you the idea of a “presumption of innocence for entrepreneurs”. What is its meaning?
- One of the main tasks of the business code is the protection of the legitimate rights of entrepreneurs. And since codification is not just a mechanical collection of existing norms, but their revision, removal of contradictions and strengthening of positive principles - after such a statement, the business community has the right to expect their rights to be extended and new measures and protection guarantees to be provided. However, this did not happen, the project only duplicates the current requirements in this area.
Meanwhile, there are several simple, but effective solutions for dramatically strengthening the position of entrepreneurs, for example, in disputes with inspectors. Both Atameken and Ak Zhol have for many years been demanding the introduction of the principle of presumption of conscientiousness of an entrepreneur - a kind of analogue of the presumption of innocence of a citizen. The point is that in litigation with the prosecution, in the absence of direct evidence of guilt, the doubts are interpreted in favor of the entrepreneur, and not against him, as is happening now in tax, customs and all other disputes. The principle of the presumption of innocence is applied all over the world, and in our country for the citizens, we also recognize it, but for the same citizens, but engaged in business, - no longer. It turns out that being an entrepreneur is often dangerous for property, for nerves, and for freedom. If we correct this injustice, then business could become a truly mass phenomenon, and not run with obstacles.
What fundamentally new moments do you plan to consider in the work on the code?
- As international experience shows, in such codes the focus is on the forms of organization of entrepreneurship, their relationship between themselves and the state.
In our case, the law does not even indicate such an important form of enterprises as a joint-stock company. The order of creation and activities of all types of enterprises, types of contracts, the order of their execution, etc. are not considered.
These are fundamental moments, because they intersect with the Civil Code, create that collision of dualism, about the danger of which Maidan Suleimenov and other lawyers warn. There were two solutions to the developer: either to delimit the competences of these codes, or subordinate the relevant norms of the Commercial Code to the Civil Code, which, in my opinion, is more realistic.
The developers decided to go the other way: they simply bypassed the topic by default, thereby not solving the issue, but hiding it. But to bypass the key issues in the law is to deprive it of its meaning. And the fact that the topic of the problem has not disappeared anywhere has been shown by the discussion at the presentation. On a direct question, representatives of the Ministry of Justice stated that the threat of dualism was avoided due to the fact that the Civil Code would regulate the relations of individuals, and Entrepreneurial - relations of entrepreneurs, thus, proposing the option of delimitation of competencies. But then it is necessary to include in the code and norms of regulation of relations peculiar to business, types of contracts, fulfillment of obligations, procedure for resolving disputes...
In addition, with this division it is not clear where to refer individual entrepreneurs, who are both private citizens and entrepreneurs at the same time. But this is the largest detachment of private business entities. In general, there are many other issues that we have to solve.
Source - Megapolis (Almaty), No. 6 (711)