The Scope of Public Contract

Abstract

The scope of the public contract remains not fully clarified. In Russian literature and practice, an approach has been formed, according to which the list of public contracts is not limited to cases specifically mentioned in the law. Any contract can be recognized as public if it falls under the abstract criteria of Article 426 of the Civil Code of the Russian Federation. At the same time, the Russian literature has so far noted that a number of characteristic features of a public contract is quite difficult to establish. This applies, for example, to such elements as the nature of the activity of the obligated person and the circle of persons who have the right to demand the conclusion of an agreement and indicated in the Article 426 as consumers. In this regard, an extremely important task is to clearly define the characteristics of a public contract. To achieve these goals, the article uses both an analysis of Russian judicial practice and doctrine, and the experience of the German legal order, within which the content of the general obligation to conclude an agreement has a rather long history. The article also draws special attention to the fact that the obligation to conclude an agreement with everyone who applies may have at least three independent justifications: the intention of the legal order to provide a person with a specific benefit; requirement of equal treatment and prohibition of discrimination based on certain criteria. At the same time, a public contract is mostly associated with the first of the three justifications given, which significantly affects such a feature of a public contract as the nature of the activity of the obligated person. Based on the results of the study, the author comes to the conclusion that a public contract serves two different purposes: ensuring the usual needs of participants in the turnover and protecting competition. This duality leads to the fact that the characteristics of a public contract differ somewhat depending on which of the two specified goals the public contract provides within the framework of a specific contractual relationship.