Legal entities as holders of constitutional rights: problem statement

Abstract

The author insists on the need to overcome the approach that has developed in Russian constitutional practice and doctrine, which considers legal entities to be “inauthentic” subjects of constitutional law, whose rights are somehow conditioned by their connection with a person. An association (legal entity) is an independent subject of law; the need to secure constitutional rights for it is due not to the protection of the rights of its participants, but to the protection of the association as the most important social actor in modern society. The category «legal entity» is necessary to confirm its compliance with the criteria established by law to ensure the fairness of social institutions. This makes it possible to begin the formation of the constitutional rights (and obligations) of social associations (legal entities) taking into account the goals of its creation, the specifics of the scope of its activities, etc.

References

1. Gros, L.A. (2004). On the question of the relationship between concepts: legal entities, commercial organizations, business entities, business entities. Economic justice in the Russian Far East, 3, pp. 83–91 (in Russ.).

2. Ryvkin, K.A. (2007). Legal entities as carriers of fundamental rights: Russian and European practice. Journal of Russian Law, 11, pp. 30–39 (in Russ.).

3. Suchkova, M. (2011). Do legal entities have human rights: the practice of the European Court of Human Rights and other international bodies. International Justice, 1, pp. 87–97 (in Russ.).

4. Ciepley, D. (2017). Member Corporations, Property Corporations, and Constitutional Rights. Law and Ethics of Human Rights, 11 (1), pp. 31–60.

5. Dan-Cohen, M. (1986). Rights, Persons and Organizations. Legal Theory of Bureaucratic Society. California.

6. Krannich, J.M. (2005). The Corporate “Person”: A New Analytical Approach to a Flawed Method of Constitutional Interpretation. Loyola University Chicago Law Journal, 37, pp. 61–109.

7. List, Ch. and Pettit, Ph. (2011). Group Agency. The Possibility, Design, and Status of Corporate Agents. Oxford.

8. Matys, Т. (2011). Legal Persons — “Kampfe“ und die organisationale Form. Wiesbaden.

9. Orts, E.W. (2013). Business Person: A Legal Theory of the Firm. Oxford.

10. Kirste, St., Gröschner, R. and Lembcke, O. (2018). Person und Rechtsperson. Zur Ideengeschichte der Personalität. Tübingen.

11. Orts, E.W. and Smith, N.C. (Eds.) (2017). The Moral Responsibility of Firms.Oxford.

12. Singer, A. (2015). The Form of the Firm: A Normative Political Theory of the Corporation. Oxford.

13. Choudhury, B. and Petrin, M. (Eds.) (2017). Understanding the Company. Corporate Governance and Theory. Cambridge