|
The answer to the question of to what extent and to what extent organizations involved in technical security systems need self-regulatory organizations is provided by the All-Russian Classifier of Types of Economic Activities, Products and Services OK 004-93 (OKDP), where work related to the design and installation of technical systems requires a permit.
The purpose of the presented article is to show the specifics of urban development relations that are developing at the time of the formation of the institute of self-regulatory organizations (SRO). The regulatory framework is federal lawmaking with regional specifics in the form of methods of forming SROs, when the government no longer wants to issue licenses, and the people can no longer receive them after January 1, 2009. The federal segment was demonstrated by the Federal Law of July 22, 2008 No. 148-FZ «On Amendments to the Urban Development Code of the Russian Federation and Certain Legislative Acts of the Russian Federation»; Federal Law of the Russian Federation of December 1, 2007 No. 315-FZ «On Self-Regulatory Organizations». Technical regulations «On the Safety of Buildings and Structures», «On the Safety of Construction Materials». At the same time, the list of subjects of state regulation that affect such a small number of objects is quite wide. According to estimates by the Ministry of Justice, at present, only 40 such organizations have formed a package of documents in the volume necessary for state registration to varying degrees. The starting point is the activity of the government commission on technical regulation, which is secured by a number of ministries: regional development, industry and energy, economic development and trade of the Russian Federation. The state authorities of the subjects participate in the issues of approving regional standards of urban planning, supervision within the framework of existing powers. An example of this is the activity of the authorized executive body of St. Petersburg — the Committee for Urban Planning and Architecture (KGA). The powers of the executive authority are secured in paragraphs 3.1, 3.4 of Art. 6, Chapter 1 of the Urban Planning Code:
maintaining the SRO register;
control (supervision) over the SRO activities;
applying to the arbitration court with a request to exclude from the state register;
establishing a list of types of work that affect the safety of capital construction projects.
The powers of the government imply the existence of an authorized federal executive body, which will assume the right, in accordance with the law, to approve the list of types of work that affect the safety of capital construction projects. In this case, the principle of «divide and rule» applies, when Rostekhnadzor is ready to assume the functions of supervision, as is evident from the name of this structure; the Ministry of Economic Development is capable of attempting to resume the development of technical documentation in this area, the Ministry of Regional Development is able to formulate a list of works that affect safety and quality in construction. Returning to supervision of the activities of SROs, Federal Law No. 148 provides for:
scheduled inspections every two years;
unscheduled inspections based on applications from individuals and legal entities, government agencies, law enforcement agencies;
maintaining a state register.
The means for conducting supervision are formulated in Article 55.19 of the Civil Code and are scheduled and unscheduled inspections. Scheduled inspection — once every two years. Unscheduled inspection — for the purpose of monitoring the execution of orders to eliminate violations identified during scheduled inspections. The decision to conduct an unscheduled inspection is made by the supervisory authority on the basis of an application from any person.
SRO as a system is presented as a two-tier model. The lower tier is regional SROs, the upper tier is the association of regions. The work of the supranational association is strictly subordinated to the creation of uniform standards, requirements and rules, protection of the rights and interests of regional SROs, representation of the interests of the construction community in the legislative and executive bodies of the Russian Federation. By the Decree of the President of the Russian Federation of May 12, 2008 No. 724, the Federal Agency for Construction, Housing and Utilities (Rosstroy RF) was abolished, its functions were transferred to the Ministry of Regional Development of the Russian Federation. A department for regulation of urban development activities was created, and a department for urban development, engineering surveys and design was formed within the structure of the department. The Ministry of Regional Development of the Russian Federation has the right to exercise licensing in the field of design, construction and engineering surveys until amendments are made to the relevant regulatory legal acts of the Russian Federation. This rule is enshrined in the Decree of the Government of the Russian Federation of May 29, 2008 No. 405 «On certain issues of the activities of the Ministry of Regional Development of the Russian Federation».
Based on terminological unity in a broad sense, it is necessary to provide the main features that allow us to speak about the presence of SRO in a certain territory. The regulatory basis for such a list is paragraph 17 of Art. 1 of Chapter 1 of the Civil Code.
non-profit organizations;
included in the state register;
based on the membership of individual entrepreneurs and (or) legal entities performing design and survey work and construction and installation work on capital construction projects.
The listed features entail the formulation of the question: is membership in an SRO necessary for the performance of design and survey works and construction and assembly works of temporary facilities? Art. 51, 55 of the City Code emphasize that the rules for approval and commissioning apply only to capital construction projects, and according to paragraph 17 of Art. 51 of the City Code, the established requirements do not apply to temporary facilities. How, in such a case, to differentiate between warehouse, public, residential, and industrial facilities of a temporary nature? The regulatory basis for such gradation is reflected in SNiP 4.08-91, which speaks about the essence of the category of temporary — for the period of construction and (or) necessary for the performance of construction and assembly works and servicing of workers during construction. The algorithm for approving a temporary structure is completely different and makes one think about the necessity and inevitability of membership in an SRO. To achieve this goal, an application to the KGA for the issuance of a permit letter for the design is required. The following act as an appendix to the latter: title documents for the land plot, topographic survey of the land plot for future construction, approval by the district administration. The basis for such a scheme is paragraph 3.1. of the Regulation on the KGA, which states: «Taking into account the opinion of the district administrations, form the architectural appearance of individual territories in the districts.» The further path leads to the development of a project based on a permit letter from the KGA, approval of the project by the interdepartmental commission of the district (IDC), the actual construction and signing of the act of commissioning of the temporary structure. The term of operation of the facility is not regulated, therefore, it is not limited in St. Petersburg (if you are the owner of the land plot). Connection to utility networks is carried out in the general manner. The basis is paragraph 13 of the Rules for connecting a capital construction project to utility networks. RF Government Resolution No. 83 of 13.02.06. The provisions of Art. 222 of the Civil Code of the Russian Federation on unauthorized construction and the claim for demolition of a temporary facility is denied. The only legal basis for dismantling is a violation of the intended use of the land plot.
Like any organization, SRO is doomed to have a document flow, within which, according to Art. 55.5 of the Civil Code, there is a place for mandatory and optional papers. The first group includes a document establishing the conditions for issuing certificates of admission to work that affect the safety of capital construction projects; a document establishing the rules for monitoring compliance with requirements; a document establishing measures of influence for non-compliance with requirements. The following act as optional: rules for the performance of work, requirements for the results of work, the system of control over work; self-regulation rules (good wishes). The internal logic of the document flow is subordinated to the absence of contradictions with the requirements of technical regulations.
Admission to work Art. 55.8 of the Civil Code implies the presence of a List of types of work that affect the safety of capital construction projects. Issuance of a certificate of admission to work is carried out free of charge. The validity of the certificate of admission to work is terminated:
1) by decision of the SRO governing body;
2) by court decision;
5) in case of termination of membership.
The application of measures of influence in relation to members of the SRO is prescribed in Art. 55.15 1 of the Civil Code and is closed in its content. It provides for:
1) issuing an order to eliminate the identified violations;
2) issuing a warning;
3) suspension of the certificate of admission to work;
4) termination of the certificate of admission to work;
5) exclusion from membership in the SRO.
The decision to apply a measure of influence may be appealed to an arbitration court.
The liability model established for SROs in Art. 55.16 of the Civil Code is subsidiary liability for the obligations of its members. Compensation for damage caused by work, according to Art. 60 1 of the Civil Code, is borne by:
1) the Russian Federation, a constituent entity of the Russian Federation, if the damage was caused as a result of non-compliance of the results of engineering surveys with the requirements of technical regulations and there is a positive conclusion of the state examination;
2) the SRO in relation to a person who had a certificate of admission to work.
To sum up and answer the question of how to live further, we can distinguish several stages of evolution from licensing to self-regulation.
Stage 1: before January 1, 2009, only non-profit organizations whose members are persons holding licenses for engineering surveys for the construction of buildings and structures, for the design of buildings and structures, for the construction of buildings and structures, with the exception of seasonal or auxiliary structures, could acquire SRO status.
Stage 2: from January 1, 2009, new licenses for design and survey work and construction and assembly work are not issued.
Stage 3: from January 1 to December 31, 2009, construction activities can be carried out on the basis of a license or on the basis of a permit issued by an SRO.
Stage 4: from January 1, 2010, construction activities for types of work affecting safety in construction are prohibited without the appropriate SRO permit.
Stage 5 – from January 1, 2011, SRO members are required to insure their liability.
|
