Federal laws in the field of construction. chapter xi. legal regulation of construction activities 

Chapter XI. LEGAL REGULATION OF CONSTRUCTION ACTIVITIES

§ 1. The concept of construction activity and construction legislation

The concept of construction activity. Construction activities can be defined as activities to create new buildings, structures, other construction projects, as well as the expansion and reconstruction of existing enterprises, buildings and structures.
In construction activities in a broad sense, not only builders themselves, but also customers, designers, and investors are involved in the construction process.
Construction activity in the narrow sense is the activity of only construction organizations for the construction of various objects and various related types. construction works.
The subject of consideration in this chapter is construction activity in a broad sense, since all stages of the construction process are closely interconnected. Thus, construction is impossible without project documentation, and it should be based on urban planning documentation. Design in most cases includes architectural activities. Neither construction nor design is possible without investment, and in this sense, the investor is a necessary participant in the construction process. Equally necessary is the customer for whom construction work is carried out, certain objects are erected. Without a customer, construction in progress will never become such an object as a residential building or a manufacturing enterprise, since the customer decides on the acceptance of buildings and structures for operation, and, consequently, on their inclusion in circulation precisely as enterprises, buildings and structures, and not as unfinished construction.
As for construction activities in the narrow sense, it should be taken into account that there are several formal criteria for classifying a particular activity as construction: firstly, this is a list of types of construction work subject to licensing, and secondly, a list of construction works recorded in section . 4 (clause 4.2.) Instructions on the procedure for compiling statistical reporting on capital construction, approved by the Resolution of the State Committee Russian Federation according to statistics dated September 24, 1993 No. 185. In addition, the list various kinds construction works, i.e. types of construction activities, or in other words, types of activities that are classified by regulatory documents as construction, is contained in such a regulatory act as Building Norms and Rules (SNiP).
Legal regulation of relations in the construction industry, as well as in the field of design and survey work for construction, traditionally constitutes one of the most vast areas commercial law.
This sub-branch of commercial law may be called capital construction law or building law.
Closely related to the construction industry relations in the regions architectural design and urban planning can also be attributed to the subject of building legislation in its broadest sense, although they have significant specifics, which is reflected in the formation of the relevant sets of regulations, including codified ones.
Construction legislation. Building legislation is characterized by a large amount of regulatory material. At the same time, actually legal regulations are closely intertwined with technical standards. They are often included in single regulatory documents. The most typical example of this kind is SNiP (Building Norms and Rules). This is a set of general norms and requirements for the organization of construction production, the design of facilities and the conduct of construction work. In SNiPakhest and legal and technical standards. It is important to consider that compliance with SNiPs by all participants in the construction process is their legal obligation.
Normative regulation of construction is very detailed, which significantly distinguishes it from many other sections of commercial law. Here there is a significant number of normative acts adopted even before the beginning or at the very first stages of the formation of the modern Russian market economy.
In the current conditions, these acts often no longer have an imperative value, however, in the absence of modern regulatory documents replacing them, they play an important role in contractual practice.
An example of such acts is the officially repealed Rules on Contracts for Capital Construction of 1986.
When preparing draft legal documents and considering disputes related to construction, it should first of all be borne in mind that the bulk of the regulatory material is contained in acts adopted by federal ministries and departments - this is the so-called departmental legislation, classified by general civil legislation as other legal acts. These acts must comply with the Constitution RF, Civil Code, laws and other normative acts more than high level in the legal hierarchy of normative acts.
The foundation, the basis of construction legislation is formed by federal laws that define the basic principles of the legal regime of construction activities and the main features of the legal status of participants in the construction process.
These are the laws “On investment activity in the RSFSR” dated June 26, 1991 No. 1488-1, as amended federal law of June 19, 1995, No. 89-FZ, “On Foreign Investments in the RSFSR” of July 4, 1991 No. 1545-1, as amended and supplemented by Decree of the President of the Russian Federation of December 24, 1993 No. 2288 and Federal Law of 19 June 1995 No. 89-FZ, “On architectural activity in the Russian Federation” dated November 17, 1995 No. 169-FZ, “On the basics of urban planning in the Russian Federation” dated July 14, 1992 No. 3295-1 (as amended by the Law of July 19, 1995 No. 112-FZ).
In addition, the norms of Ch. 37 of the Civil Code of the Russian Federation and especially paragraph 3 of this chapter, dedicated to the construction contract.
Among other legal acts, the content of which should not contradict the named legislative acts, it should be noted such documents as the Regulations on the State Committee of the Russian Federation for Housing and Construction Policy dated December 11, 1997 No. 1542, Temporary Regulations on Financing and Lending capital construction on the territory of the Russian Federation of March 21, 1994 and the Basic Provisions for the Procedure for Concluding and Executing State Contracts (Contracts of Work) for the Construction of Facilities for Federal State Needs in the Russian Federation of August 14, 1993
Among the departmental regulations that are important as sources regulating relations in the construction complex, we first of all name the Regulation on contract bidding in the Russian Federation, approved by the Order of the State Property Committee of Russia and the State Construction Committee of Russia of April 13, 1993, Letter of the Ministry of Finance of the Russian Federation of December 30, 1993 "On standard guidelines for planning and accounting for the cost of construction work", Letter of the Ministry of Finance of the Russian Federation dated May 23, 1994 "On methodological recommendations for the composition and accounting of costs included in the cost of design and survey products (works, services) for construction, and formation of financial results”, Letter of the Ministry of Construction of the Russian Federation of July 6, 1995. “On the legislation of the Russian Federation, in accordance with which the cost of construction is being determined”.
A number of legally important provisions are contained in the Instruction on the procedure for compiling statistical reporting on capital construction, approved by the State Statistics Committee of Russia on September 24, 1993 by Resolution No. 185. This document provides definitions of such important and widely used concepts in construction legislation and contractual practice as “construction”, “construction queue”, “start-up complex”, “construction object”.

§ 2. Legal forms of participation in construction activities

Construction legislation regulates the activities of all participants in the construction process: designers and architects, developers of technical and estimate documentation, customers, investors, developers and, finally, the builders themselves - contractors and subcontractors.
The legal status of construction participants is determined in two areas of legal regulation:
- firstly, it is established by a fairly large number of imperative norms, and in this part we can talk about a certain single stable component of the legal status of all investors, all customers and all contractors;
- secondly, it is determined individually for each subject by the terms of the contracts in which he participates.
The main legal document devoted to the relationship of all participants in the construction is the law “On investment activity in the RSFSR” as amended by Federal Law No. 89-FZ of June 19, 1995 (hereinafter referred to as the Law).
This normative act defines such permanent participants in the construction process as investors and customers. When using these terms in any legal documents, it is necessary to take into account that in the said Law, for a number of positions, their legal status during the construction process is fixed and the relevant rules will be applied in the event of a dispute, regardless of whether similar definitions are given in specific contracts or not. .
Investors are those participants in the construction process who, in accordance with paragraph 3 of Art. 2 of the Law invest their own, borrowed or borrowed funds and ensure their intended use. Thus, investors can be, first of all, those legal entities or individuals who have the right to independently manage their own funds. These entities include commercial and non-profit organizations who are the owners of their property. And those legal entities that have property on the basis of the right of economic management or operational management must receive the appropriate authority to invest in construction production from their founders.
In addition, investors may be bodies authorized to manage state and municipal property or property rights. These include primarily the Government of the Russian Federation, as well as ministries and departments of the Russian Federation and constituent entities of the Russian Federation. Investors can also be such non-governmental organizations endowed with management rights federal property, as the Russian Academy of Sciences (RAS).
If investments are made using borrowed funds, then it should be borne in mind that loans and bank loans are provided, as a rule, for the purpose specified in the loan or credit agreement, and the use of borrowed funds is controlled by the lender. Therefore, when concluding agreements with investors offering borrowed funds as an investment, it is necessary to check whether such use of the borrowed funds received by them complies with the conditions and requirements fixed in legislative norms and agreements with creditors.
If it is planned to use borrowed funds as investments, it is necessary to check whether this investor has the right to attract, for example, citizens' funds for these investments.
During the construction of large facilities, the funds of several investors are often combined, which is directly provided for in paragraph 3 of article 2 of the same Law.
In these cases, investors conclude an agreement on joint activities (a simple partnership agreement) and determine the conditions for pooling their funds in it.
Agreements on equity participation in the construction of residential buildings have become widespread. When joining the number of equity holders under such agreements, it should be borne in mind that in accordance with paragraph 3 of Art. 7 of the Law, unfinished objects of investment activity are the object of shared ownership of the participants in the investment process until the investor accepts and pays for the work and services performed. If the investor refuses to continue financing the construction before its completion, then he must, unless otherwise provided in the contract, compensate other project participants for their costs.
With equity participation in the construction of residential buildings, citizens-investors can become owners of apartments only after their full payment, which in turn is possible after the acceptance of the entire house for operation.
In practice, disputes often arise about how apartments should be paid for in shared construction, if during the construction period of the house the prices for the completed object increased due to the increase in prices for Construction Materials, energy carriers, changes in tax legislation, etc., i.e. due to circumstances for which the contractor is not responsible. The legislation stands on the position that the investor becomes the owner of the apartment only after its full payment at the prices that prevailed at the time of delivery of the object.
According to the norms of paragraph 4 of Art. 5 of the Law, an investor may transfer his powers under the contract both for the investments themselves and for their results to other persons. In this case, two legal structures for the transfer of investor rights can be used: a change of persons in an obligation or a sale of rights.
In cases where the investor is connected with other participants in the construction and investment project only by such legal relations in which he owns rights and has no obligations, then he has the right to sell his property rights in accordance with clause 4 of Article 454 of the Civil Code of the Russian Federation.
If the investor is the subject of not only rights, but also obligations, then he must comply with the rules on the transfer of debt, i.e. he needs to obtain the consent of other participants in legal relations to replace himself with another person.
It should also be borne in mind that the norm of clause 3 of article 7 of the Law, which establishes the legal relationship of shared ownership of an unfinished construction object, thus extends the rules on common ownership to the relationship of equity holders, which implies the pre-emptive right of each of them to acquire the rights alienated by the investor to the results of investments (built objects).
As a rule, the investor acts as a customer during construction. However, another design is also possible: the investor has the right to authorize another legal or natural person, as well as a state body, to implement the project. Such a person will perform the functions of the customer, although the construction in this case will not be carried out at the expense of the customer himself. According to the direct indication of Part 2, Clause 4, Article 7 of the Law, such a customer is vested with the rights to own, use and dispose of investments for the period and within the limits specified in his agreement with the investor. As you can see, in this part, the construction legislation came close to formulating a special real right of the customer to the object of investment activity. This right consists of the traditional three powers that form the basic real rights, but this is not the right of ownership, not the right of economic management and not the right of operational management, since the last two have a circle of possible subjects strictly limited by law. Customers are not among them, since the status of a customer can only be obtained on the basis of an agreement or an administrative act replacing it - an order, and the status of subjects of the right of economic management or operational management - by virtue of the constituent documents of this legal entity and direct instructions of the legislation on legal entities of this type .
The creation of a single customer service has become widespread in the field of housing construction when houses are built within the territories of compact development at the expense of various investors. In areas of mass construction, it is convenient to have a single customer service that can effectively control the fulfillment by all contractors of the terms of contracts and the requirements of building legislation in terms of construction technology.
The main features of the legal status of a single customer are fixed in the Regulations on the customer-builder (single customer, directorate of an enterprise under construction) and technical supervision, approved by the Decree of the USSR Gosstroy dated February 2, 1988 No. 16.
The investor, as a rule, finances the construction of facilities, which he then uses. However, in cases where this does not happen, and the investor is not the person who becomes the user of the investee, i.e. a building, enterprise or residential building under construction, then between such a user and an investor an investment agreement must be concluded, which defines their mutual rights and obligations. Instead of an investment agreement, an investment decision may be issued. Such a decision is issued, for example, by a state body authorized to distribute budget funds for the construction of municipal housing and social and cultural facilities.
When using as investments such specific sources as state foreign exchange funds and state foreign investment loans, the norms of a special act - Decree of the Government of the Russian Federation of June 8, 1993 No. 531 “On streamlining the construction of facilities carried out at the expense of state foreign exchange funds and government foreign investment loans”.
The main document underlying the relationship between the participants in the construction process is the contract they conclude. According to Article 7 of the Law, such an agreement regulates production, economic and other relationships between construction participants.
The central link of these relations is the relationship between the customer (which may be an investor) and the contractor.
Main Feature legal status contractor is that the construction activity is licensed. Decree of the Government of the Russian Federation of March 25, 1996 No. 351 approved the Regulations on Licensing Construction Activities.
The list of types of construction activities and works carried out on the basis of licenses was approved on December 28, 1992 by the Ministry of Construction of Russia.
When determining a contractor, customers are free to choose and have the right to use the proposals of any organization, both Russian and foreign, if the contractor has the appropriate license.
However, during construction at the expense of public funds, special rules apply, established by Decree of the Government of the Russian Federation of August 14, 1993 No. 812 “On Approval of the Basic Provisions for the Procedure for Concluding and Executing State Contracts (Contracts of Work) for the Construction of Facilities for Federal Needs in the Russian Federation (as amended. as of June 26, 1995)” and set out in detail in the letter of the Gosstroy of the Russian Federation dated October 7, 1993 No. 15-144 “On the procedure for concluding state contracts (contracts of work) for the construction of facilities for federal state needs”.
If construction is carried out at the expense of private individuals, then they can use these documents as norms of a recommendatory nature, along with such documents as the Standard Contract for Capital Construction, the Standard Supplementary Agreement to the Contract for Capital Construction. Standard form of the schedule for the production of construction and installation works, quarterly assignments ... approved by the Decree of the USSR Gosstroy of January 23, 1987 No. 13.
When choosing a contractor for construction at the expense of public investment, contract bidding is organized, which is regulated by the Regulations on contract bidding in the Russian Federation, approved by the Order of the State Property Committee of the Russian Federation dated April 13, 1993 No. 660-r (as amended and supplemented on October 18, 1994) G.).
The application of this document is mandatory when conducting contract tenders for placing orders for newly begun construction for federal state needs.
When conducting a contract auction, their object is a production or non-production facility to which the subject of the auction belongs. The subject of the tenders are specific types of works or services for which tenders are held.
Thus, if there is one object, there can be several items of auction, i.e. separate sets of works that can be entrusted to different contractors as a result of bidding.
Applicants must submit their proposals - offers in accordance with the conditions proposed by them, contained in the tender documentation. This is a set of documents containing initial information on the technical, commercial, organizational and other characteristics of the object and subject of the auction, as well as on the conditions and procedure for the auction.
Bidding is conducted by the tender committee. It is created by the customer or the organizer for bidding and can operate on a permanent or temporary basis.
The tender itself is a competitive form of contract bidding, which is defined as a competition of offers submitted by applicants in terms of their compliance with the criteria contained in the tender documentation.
Contract bidding can be held only after the approval of the feasibility study (FS) of the project or after the development of working documentation for the facility.
According to the results of the tender, the contractor for the works and services put up for tender as the subject of tenders is determined. The contract with the winner of the auction is concluded by the customer. He also establishes the final terms of this contract.
The contract for capital construction or, in other words, the construction contract contains conditions that define the rights and obligations of the customer and contractor. These treaties are devoted to § 3 Ch. 37 of the Civil Code of the Russian Federation.
In cases where construction and installation work is carried out not only by the organization that has concluded an agreement with the customer, but also require the involvement of specialized organizations, such as, for example, leading Finishing work performing the installation of engineering equipment, etc., the contractor must include in the contract his right to engage subcontractors. At the same time, it is important to determine whether the consent of the customer is required for the choice of each specific subcontractor or whether he trusts this completely with his contractor. In cases where, in addition to the main contractor, the contract also implies the presence of subcontractors, such an agreement is called a general contractor agreement, and the contractor himself is called the general contractor.
When concluding work contracts between the general contractor and subcontractors, the rules on construction contracts are applied, where the general contractor acts as a customer, and the subcontractor as his contractor.
These contracts are applied as a recommendatory act, if we are talking about private investments, and as an imperative, if the construction is carried out at the expense of public funds, the Regulations on the relationship of organizations - general contractors with subcontractors, approved by the Decree of the USSR Gosstroy of July 3, 1987. No. 132.
The procedure for commissioning a finished construction object is regulated by the Decree of the Council of Ministers of the USSR dated January 8, 1981 No. 24 “On Acceptance for Operation of Completed Construction Objects”. In addition, there is a special normative act that is applied without fail for a specific group of objects - communication objects. common use, however, private investors and customers can use this document as a recommendatory norm when drawing up their contracts: these are the “Temporary rules for the acceptance into operation of completed public communication facilities in the Russian Federation”, approved by order of the Ministry of Communications of the Russian Federation of December 19, 1995 No.
When defining in the contract the conditions for acceptance of a completed construction object of any purpose, it should be taken into account that the imperative norms and the terms of such contracts traditionally established in our country do not provide for the contractor's liability for the delivery of an object with imperfections and defects. Various documents - Model contracts, Rules for contracting for capital construction, not to mention the most general, non-detailed norms of legislation on investment activity, do not contain rules on the contractor's penalty liability for the delivery of objects with imperfections and defects. Here, unless there are special instructions in contract, only the general rules on liability in the form of damages can be applied. Therefore, when developing draft construction contracts, it is recommended to ensure the interests of the customer, in addition to other methods, also by including in the terms of the contract conditions for the contractor to pay penalties in the form of penalties or fines for presenting an object with imperfections for delivery.
During the construction of housing, the rights of the customer need special protection, and the process of delivery and acceptance of objects needs a detailed settlement, since here the customer is not the user of the built house, if we are talking about the construction of municipal housing. Therefore, a special document is in force in this area - the order of the Government of the Russian Federation of August 29, 1994 No. 1387-r “On the authority of the customer when completing construction and selling unfinished residential buildings”.
If construction for one reason or another under this agreement is not completed, construction legislation provides for the sale of such objects, i.e. essentially limits the lifetime of unfinished objects. The relevant rules are contained in the Decree of the President of the Russian Federation of June 10, 1994 No. 1181 “On measures to ensure the completion of construction projects that have not been completed”, which approved the Regulations on the procedure for the transfer for completion of construction and sale of residential buildings that have not been completed and in a resolution of the Council of Ministers of the Russian Federation dated February 3, 1992 No. 59 (as amended on March 21, 1994) “On measures for the sale of unfinished objects”.
In accordance with these documents, objects of construction in progress are put up for investment or commercial tenders.
When holding an investment tender, which can be open or closed, the winner gets the right to conclude an agreement with the original customer or the authorized body for the completion of the facility. This agreement fixes the shares of the initial customer and the winner of the investment tender in the right of common shared ownership of a residential building ready for operation and the procedure for acquiring by the winner of the tender property rights to the share of the residential building being completed as a result of investing in the construction of the facility.
When holding a commercial tender, the obligatory condition of which is the completion of the construction of the object, the winner of the tender concludes a contract for the sale of an unfinished object and becomes its owner.
If after the competition the winner refuses to conclude an agreement on completion or a contract of sale, then the results of the competition are canceled, and the deposit paid is not returned.

§ 3. Legal regulation of architectural activity and design in construction

Construction begins with the creation of a project. The main requirements for this stage of the construction process are contained in the laws “On Architectural Activities in the Russian Federation” and “On Urban Planning Activities in the Russian Federation”.
The Instruction on the composition, procedure for development, coordination and approval is also important. design and estimate documentation for the construction of enterprises, buildings and structures, approved by the Decree of the USSR Gosstroy of December 23, 1985 No. 253.
Each future developer (customer), i.e. a legal or natural person intending to carry out the construction of any building, structure, or other construction object is required to have an architectural design and design estimates.
An architectural design is, in accordance with Art. 2 of the Law “On Architectural Activities in the Russian Federation”, the architectural part of the documentation for construction and urban planning documentation, containing architectural solutions that comprehensively take into account social, economic, functional, engineering, technical, fire, sanitary, environmental, architectural, artistic and other requirements for object to the extent necessary for the development of documentation for the construction of objects in the design of which the participation of an architect is required.
Construction can be carried out without an architectural design, if the construction does not require a building permit.
Such a permit is not required in cases where construction work does not entail changes in the external architectural appearance of the existing development of the city or other settlement and individual facilities and does not affect the reliability and safety characteristics of buildings, structures and utilities. Lists of such facilities, for the construction of which there is no need to obtain construction permits, are determined by the executive authorities of the constituent entities of the Russian Federation.
Refusal to issue a building permit may be challenged by the customer in court.
The architectural design must be carried out by an architect licensed to practice architecture.
Licensing of architectural activities is carried out in accordance with the standards set forth in the Regulations on the Russian Licensing Architectural Center, which was approved by the Decree of the Gosstroy of Russia dated December 22, 1993 No. 18-57.
The architectural project is carried out in accordance with the architectural and planning task, which is issued at the request of the customer (developer) by state bodies in charge of architecture and urban planning.
The basis for issuing this task is the customer's application and documents certifying the customer's ownership of the land plot on which construction is supposed, and if the customer is not the owner of this land plot, then the permission of the owner of this land plot for designing on this land plot. If the land plot is in state or municipal ownership, a decision of the state authority of the constituent entity of the Russian Federation or local government on designing on this site is necessary.
The architectural and planning task is issued in accordance with the norms of the legislation on urban planning and must contain the provisions of the approved urban planning documentation, mandatory environmental, sanitary and hygienic, fire safety requirements for an architectural object, requirements for the protection of historical and cultural monuments, indications for construction in special conditions (seismic zone, permafrost zone, etc.), requirements for observing the rights of citizens and legal entities whose interests are affected during this construction.
Refusal to issue an architectural and planning task is possible in cases expressly specified in the law. This happens if the customer's intentions contradict the current legislation, regulatory legal acts, urban planning regulations, the provisions of the approved urban planning documentation, the building rules of the city or another settlement. So, for construction in rural areas, the Rules for the Development of Rural Areas apply. settlements, approved by the Decree of the Council of Ministers of the RSFSR of July 20, 1981 No. 389.
The refusal to issue an architectural and planning assignment may be appealed by the customer to the court.
During the construction of a number of facilities specified in the approved urban planning documentation, the architectural and planning task must be developed on the basis of mandatory pre-project studies or after an architectural design competition.
The procedure and conditions for conducting such studies and competitions for an architectural project are determined by the architecture and urban planning authorities of the constituent entities of the Russian Federation. The architecture legislation specifically provides that the jury of such competitions must consist of at least two-thirds of licensed architects.
Prior to the approval of the project, in cases specified in the legislation, expert examinations are carried out.
Examination of projects is mandatory if the construction is carried out at the expense of the federal budget and the budgets of the constituent entities of the Russian Federation. The procedure for conducting this state non-departmental expertise is determined by the Government of the Russian Federation or a constituent entity of the Russian Federation.
A special normative act defines the requirements for examination when using foreign investments: the Decree of the Ministry of Construction of Russia dated February 16, 1995 No. 18-18 approved the Procedure for conducting state expertise construction projects involving foreign capital in the Russian Federation.
During the construction of facilities at the expense of Russian legal entities and individuals, an examination is possible upon their decision.
Examinations of architectural projects can only be carried out by architects who have a license to carry out architectural activities.
Examination of projects for the construction of enterprises, buildings and structures is carried out by the State Committee of the Russian Federation for Housing and Construction Policy.
When constructing technically complex unique facilities, comprehensive technical expertise. Thus, during the construction of the subway in particularly difficult sections, the examination is carried out by the Glavkomexpertiza of the Russian Federation - a federal level body.
During the construction of production facilities, a necessary element of project documentation, in principle preceding the development of all its other components, is a feasibility study of the project (feasibility study). This document is also
object of expertise. By letter of the Glavgosexpertiza under the Ministry of Construction of Russia dated April 23, 1992 No. 24-13-4 / 222, the Requirements for the compilation and content were approved expert opinion according to the feasibility study (project) for the construction of enterprises, buildings and structures.
In addition to the above-mentioned examinations, environmental examinations can also be carried out. Their implementation is mandatory if it is provided for by the norms of environmental legislation.
The architectural design must take into account the requirements urban planning legislation, state standards in the field of design and construction, building codes and regulations, relevant urban planning regulations, rules for the development of a city or other settlement, design assignments and architectural and planning assignments. This document is mandatory for all participants in the implementation of the architectural project from the date of receipt of the building permit issued on its basis.
Architectural designs as the main design document can only be created by licensed persons. Licensing of architectural activities is carried out by the bodies of architecture and urban planning.
The State Committee of the Russian Federation for Housing and Construction Policy exercises state architectural and construction supervision, and the authors of architectural projects have the right to carry out architectural supervision, i.e. verification of compliance of the work performed with the architectural project. The current Regulation on the author's supervision of design organizations for the construction of enterprises, buildings and structures was approved by the Decree of the USSR Gosstroy dated April 15, 1985 No. 48.

§ 4. Legal regulation of urban planning activities

As well as architectural projects, construction also requires urban planning documentation. According to Article 6 of the Law “On the Fundamentals of Urban Planning in the Russian Federation”, urban planning documentation is a unified system of interrelated project documents, which provides for the obligation to take into account previously approved types of project documentation in the development of subsequent ones, and serves as the basis for drawing up projects for housing, civil, industrial and municipal construction. Urban planning documentation
is developed taking into account the forecasts of the resource potential of the territories and is agreed with the state bodies of control and supervision.
On the basis of urban planning forecasts and programs, the main types of urban planning documentation are developed. During the construction of most objects, such types of them as master plans cities, other settlements and their systems, projects of city and settlement administrative lines, as well as rural settlements, master plans for territories under the jurisdiction of rural and other similar local governments, master plans for residential, industrial, recreational and other functional areas, detailed planning projects community center, residential areas, highways of the city, development projects of quarters and sections of cities and other settlements.
Customers can entrust the implementation of other types of urban planning documentation.
The master plan of a city, another settlement, a territory subordinate to local governments is, in accordance with clause 4, article 6 of the Law “On the Fundamentals of Urban Planning in the Russian Federation”, the main legal document that determines living conditions, directions and boundaries of territorial development in the interests of the population, functional zoning, development and improvement of the territory, preservation of historical, cultural and natural heritage.
From the moment of approval, urban planning documentation is obligatory for execution by all participants in urban planning activities. It is at the disposal of the bodies of architecture and urban planning.
The legislation includes citizens and legal entities that are customers, investors, developers, developers of urban planning documentation, as well as performers of work and users of objects of investment and urban planning activities, among the participants in urban planning activities. The participants in this activity are also state bodies, local self-government bodies and bodies of architecture and urban planning.
Urban planning documentation is developed on the basis of urban planning standards approved by state bodies for a certain period of time. They are of great legal importance, since they not only serve as the basis for the examination of projects and control over urban planning activities, but also should be the basis for resolving disputed urban planning issues in court.
Such urban planning standards as the rules for building cities and other settlements, for example, rural settlements, are also of paramount importance. These documents detail urban planning standards and other norms of urban planning legislation, taking into account the characteristics of various types of settlements.
Customers of urban planning documentation are state bodies, local governments or legal entities.
For the implementation of urban planning documentation, the customer concludes an agreement with the developer, he has the right to monitor the progress of its development and expertise, and can also participate in the coordination and implementation of this documentation.
The customer has the right to independently determine the objects of urban planning activities, the directions and volumes of capital investments (investments), the scope of work and those persons whom he attracts for the implementation of urban planning documentation.
Urban planning documentation undergoes state examination in accordance with the rules contained in the Decree of the Government of Russia dated June 20, 1993 No. 585 (as amended on June 27, 1995) “On State Expertise of Urban Planning and Design and Estimate Documentation and Approval of Construction Projects”, as well as in Decree of the Gosstroy of Russia dated October 29, 1993 No. 18-41 “On the procedure for conducting state expertise of urban planning documentation and construction projects in the Russian Federation”.
If the customer of urban planning documentation is not a user of objects, i.e. buildings, structures, communications, industrial and other complexes, entire territories, etc., he nevertheless retains the right to control their intended use.
Citizens and legal entities act as users of urban planning objects. All of them have the following rights:
- to a habitat that meets environmental and sanitary requirements;
- to reliable information about the state of the environment of cities, other settlements and their systems;
- to ensure domestic, socio-cultural and other living conditions in cities and other settlements in accordance with approved standards;
- for the construction of residential buildings and other objects on the allotted or acquired land plot that meet current standards, building rules and approved urban planning documentation;
- to participate in the discussion of the city construction projects prior to their approval, as well as the development of an alternative project;
- on the independent expertise, including technical and environmental, urban planning projects.
All subjects of urban planning activities are required to comply with state regulations, the rules for building cities and other settlements and their systems, approved urban planning documentation, comply with the decisions of local authorities and administrations in the field of planning, development, improvement and landscaping of the territories of cities, other settlements and their systems adopted in in accordance with the approved urban planning documentation, protect and improve the living environment, preserve monuments of urban planning and architecture, history and culture, natural landscape, and use land plots they are obliged to carry out in accordance not only with the norms of land legislation, but also with the building rules.

§ 5. Legal regulation of pricing in construction and design

Prior to the start of economic reforms, pricing in capital construction was based on purely administrative principles. When drawing up an estimate, i.e. determining the cost of all construction work, uniform standards were applied. The same administrative pricing rules applied to materials and structures used in construction, energy, water, etc.
In the course of economic reforms in the construction industry, pricing has evolved and moved from strict regulation through the stage of regulated prices to free pricing in construction at the expense of private investment and remained regulated in construction at the expense of public funds.
In the field of pricing, the following regulations are of primary importance: “On prices for design work for construction” - Letter of the Ministry of Construction of Russia of January 4, 1995 No. 9-4/1, Letter of the Ministry of Construction of Russia of December 29, 1994 No. VB-12-276 “On the Code of Rules for Determining the Cost of Construction as part of the Pre-Design and Design Documentation”, letter of the Gosstroy of Russia dated December 29, 1993 No. 12-349, which approved the “Procedure for determining the cost of construction and free (contractual) prices for construction products in the conditions of the development of market relations”.
Such previously adopted documents as the Letter of the USSR Gosstroy of December 29, 1990 No. 22-1 “On contractual prices in construction” and the letter of the Ministry of Construction of the Russian Federation of January 17, 1992 No. BF-39/12 “On the determination of free (contractual) prices for construction products”.
In addition, it is important to take into account that for the construction complex there are special regulations that determine the procedure for attributing costs and production costs to the cost of construction products and design work:
The Decree of the Government of the Russian Federation of August 5, 1992 (as amended by the Decrees of the Government of the Russian Federation of June 26, 1996, July 1, 1995 and November 20, 1995) approved the Regulations on the composition of costs for the production and sale of products (works, services) included in the cost of products (works, services), and on the procedure for the formation of financial results taken into account when taxing profits.
Letter of the Ministry of Finance of the Russian Federation dated May 23, 1994 No. 66 “On Methodological recommendations on the composition and accounting of costs included in the cost of design and survey products (works, services) for construction, and the formation of financial results”, as well as a letter from the Gosstroy of Russia dated November 30 1993 No. 7-14 / 187 “Typical Guidelines for planning and accounting for the cost of construction work and the formation of financial results taken into account for taxation of profits” and letter of the Ministry of Construction of the Russian Federation dated October 30, 1992 No. BF-906 / 12, which approved the Methodological recommendations for determining the value estimated profit in the formation of free prices for construction products.
Documents of the State Tax Service were also published specifically for the construction industry: letter of the State Tax Service of the Russian Federation dated September 20, 1995 No. NP-6-01 / 500 “On the procedure for determining the cost of construction and in free (contractual) prices for construction products in the conditions of the development of market relations”.
In the field of pricing, the traditional for construction legislation special legal regulation relations with the participation of foreign capital: there is a letter from the Gosstroy of Russia dated February 23, 1994 No. 12-28 “The procedure for determining the cost of construction carried out in the Russian Federation with the participation of foreign firms”.

The good news for builders is the decision of the heads of the countries of the Eurasian Economic Union, which allows construction organizations to operate in the EAEU countries without creating a new entity without going through the licensing procedure, without additional permissions. This greatly simplifies the pre-construction process.

The Eurasian Economic Union is organized on the basis of the Customs Union of the following countries:

1. Russia.
2. Kazakhstan.
3. Belarus.
4. Kyrgyzstan.
5. Armenia.

Other good news is the decision of the Russian Ministry of Justice on the right of self-regulatory organizations (SROs) to monitor compliance with Russian legislation and other legislative acts on the procurement contract system.

New laws in construction

The new laws in construction include the Federal Law, adopted on November 24, 2014 N 359. This law concerns self-regulatory organizations (SROs), and clarifies that they must be established exclusively in the form of a union of members - individual entrepreneurs and (or) legal entities.

This law establishes a list of documents included in the case of a member of the SRO, which is maintained by any self-regulatory organization.

This law includes a special article regulating the powers of the President of the national association of SROs.

Legal and technical amendments have been applied in connection with the merger of the SRO, consisting of construction companies and organizations carrying out construction projects.

Self-regulatory organizations comply with the necessary provisions under the law for persons who have the right to exercise public control.

The new laws in construction also include Decree No. 1867-R, adopted by the Government of the Russian Federation on November 20 of this year “On approval of the plan for the implementation of the state. program of the Russian Federation "Providing affordable housing and public services to citizens of the Russian Federation" for the current year and for the planned periods of 2015-2016.

It plans to improve living conditions with the help of mortgage lending.

Two of the planned activities include the following:

1. Determine the features of contracts with payment of a tenth of the cost of these contracts and the final payment of the cost after construction is completed to protect investors from possible risks when they participate in shared construction and to create a guaranteed demand for completed housing. Deadline until April 2015
2. Improve the construction of economical housing and other facilities on land that has the status of private property. The planned implementation period is until December 21, 2015.

Construction projects of the Russian Federation 2014-2015

In total, more than 300 large construction projects of the Russian Federation are currently being implemented with the cost of implementing each of them more than 10 billion rubles in 2012 prices.

Among the largest construction projects of the Russian Federation, the following should be mentioned:

1. Cosmodrome "Vostochny" (over 300 billion rubles).
2. Gas chemical complex in Budyonnovsk Stavropol Territory(140 billion rubles).
3. The TANECO petrochemical industry complex in the city of Nizhnekamsk in the Republic of Tatarstan (235 billion rubles).
4. Reconstruction of the Moscow Oil Refinery (141 billion rubles).
5. Reconstruction of the Tuapse oil refinery (second and third stages, 470 billion rubles).
6. A business district under construction in the city of Yekaterinburg "Yekaterinburg-City" (120 billion rubles).
7. The resort town-satellite of Makhachkala "Cote d'Azur" in Dagestan (150 billion rubles).
8. A complex of construction projects for the upcoming 2018 FIFA World Cup (620.5 billion rubles).

The concept of construction activity. Construction activities can be defined as activities to create new buildings, structures, other construction projects, as well as the expansion and reconstruction of existing enterprises, buildings and structures.
In construction activities in a broad sense, not only builders themselves, but also customers, designers, and investors are involved in the construction process.
Construction activity in the narrow sense is the activity of only construction organizations for the construction of various objects and various types of construction work related to this.
The subject of consideration in this chapter is construction activity in a broad sense, since all stages of the construction process are closely interconnected. So, construction is impossible without project documentation, and it should be based on urban planning documentation. Design in most cases includes architectural activities. Neither construction nor design is possible without investment, and in this sense, the investor is a necessary participant in the construction process. Equally necessary is the customer for whom construction work is carried out, certain objects are erected. Without a customer, construction in progress will never become such an object as a residential building or a manufacturing enterprise, since the customer decides on the acceptance of buildings and structures for operation, and, consequently, on their inclusion in circulation precisely as enterprises, buildings and structures, and not unfinished -shenny construction.
Commercial law. Part II. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1998. P. 294
As for construction activities in the narrow sense, it should be taken into account that there are several formal criteria for classifying a particular activity as construction: firstly, this is a list of types of construction work subject to licensing, and secondly, a list of construction works recorded in section . 4 (p. 4.2.) Instructions on the procedure for compiling statistical reporting on capital construction, approved by the Decree of the State Committee of the Russian Federation on Statistics dated September 24, 1993 No. 185. In addition, a list of various types of construction work, i.e. types of construction activities, or in other words, types of activities that are classified by regulatory documents as construction, is contained in such a regulatory act as Building Norms and Rules (SNiP).
Legal regulation of relations in the construction industry, as well as in the field of design and survey work for construction, traditionally constitutes one of the most extensive areas of commercial law.
This sub-branch of commercial law may be called capital construction law or building law.
Relations closely related to the construction industry in the areas of architectural design and urban planning can also be attributed to the subject of building legislation in its broadest sense, although they have significant specifics, which is reflected in the formation of the relevant sets of normative acts, including codified ones.
Construction legislation. Building legislation is characterized by a large amount of regulatory material. At the same time, the actual legal norms are closely intertwined with the norms of a technical nature. They are often included in single regulatory documents. The most typical example of this kind is SNiP (Building Norms and Rules). This is a set of general norms and requirements for the organization of construction production, the design of facilities and the conduct of construction work. SNiPs have both legal and technical norms. It is important to consider that compliance with SNiPs by all participants in the construction process is their legal obligation.
Normative regulation of construction is very detailed, which significantly distinguishes it from many other sections of commercial law. Here there is a significant number of normative acts adopted even before the beginning or at the very first stages of the formation of the modern Russian market economy.
Commercial law. Part II. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1998. P. 295
In the current conditions, these acts often no longer have an imperative value, however, in the absence of modern regulatory documents replacing them, they play an important role in contractual practice.
An example of such acts is the officially repealed Rules on Contracts for Capital Construction of 1986.
When preparing draft legal documents and considering disputes related to construction, it should first of all be borne in mind that the bulk of the regulatory material is contained in acts adopted by federal ministries and departments - this is the so-called departmental legislation, classified by general civil legislation as other legal acts. These acts must comply with the Constitution of the Russian Federation, the Civil Code, laws and other normative acts of a higher level in the legal hierarchy of normative acts.
The foundation, the basis of construction legislation is formed by federal laws that define the basic principles of the legal regime of construction activities and the main features of the legal status of participants in the construction process.
These are the laws "On investment activity in the RSFSR" dated June 26, 1991 No. 1488-1, as amended by the Federal Law of June 19, 1995, No. 89-FZ, "On foreign investment in the RSFSR" dated July 4, 1991 No. 1545-1 as amended and supplemented by Decree of the President of the Russian Federation of December 24, 1993 No. 2288 and Federal Law of June 19, 1995 No. 89-FZ, “On Architectural Activities in the Russian Federation” of November 17, 1995 No. 169-FZ , "On the basics of urban planning in the Russian Federation" dated July 14, 1992 No. 3295-1 (as amended by the Law of July 19, 1995 No. 112-FZ).
In addition, the norms of Ch. 37 of the Civil Code of the Russian Federation and especially paragraph 3 of this chapter, dedicated to the construction contract.
Among other legal acts, the content of which should not contradict the named legislative acts, it should be noted such documents as the Regulations on the State Committee of the Russian Federation for Housing and Construction Policy dated December 11, 1997 No. 1542, the Temporary Regulations on Financing and Lending capital construction on the territory of the Russian Federation dated March 21, 1994 and the Basic provisions of the procedure for concluding and executing state
Commercial law. Part II. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1998. P. 296
military contracts (contracts of work) for the construction of facilities for federal state needs in the Russian Federation dated August 14, 1993.
Among the departmental regulations that are important as sources regulating relations in the construction complex, we first of all name the Regulation on contract bidding in the Russian Federation, approved by the Order of the State Property Committee of Russia and the State Construction Committee of Russia of April 13, 1993, Letter of the Ministry of Finance of the Russian Federation - of December 30 1993 "On standard guidelines for planning and accounting for the cost of construction work", Letter from the Ministry of Finance of the Russian Federation dated May 23, 1994 "On guidelines for the composition and accounting of costs included in the cost of design and survey products (works, services) for construction and formation of financial results”, Letter of the Ministry of Construction of the Russian Federation dated July 6, 1995 “On the legislation of the Russian Federation, in accordance with which the cost of construction is determined”.
A number of legally important provisions are contained in the Instructions on the procedure for compiling statistical reporting on capital construction, approved by the State Statistics Committee of Russia on September 24, 1993 by Resolution No. 185. This document provides definitions for such important and widely used concepts in construction legislation and contractual practice as "construction" , "construction line", "start-up complex", "construction object".

More on the topic § 1. The concept of construction activity and construction legislation:

1. Can the cost and types of construction work be described not in traditional estimates, but in specifications that are annexes to a construction contract?