As to Russia, a typical example of theestablishment of the so-called `rubber Wall Street' (as Kornai put it) may bethe transformation of the RSFSR Minlegprom (on 18 March, 1992) into Roslegprom,combining some 378 enterprises and organisations on the basis of an associationthat controlled the stock of its constituent `people's' companies.Falling into the same category is the establishment of the Avtokron HoldingCompany, combining some two dozen state-owned enterprises and organisationsdealing with the manufacture of buses and trolley-buses. That action wasbacked by the Council of Ministers of the RSFSR in the second half of1991. The Moscow's Mayor's office was quite active in `pushing' projectsto create holding companies and associations, for example in the field ofconstruction and the construction materials industry, on the basis of thecorresponding trusts and administrative offices.
All together, in the second half of 1991alone the number of associations and unions in Russia increased twofold (seeTable 2), and of the total number of concerns, consortia and associations, 400(or 10%) were instituted on the basis of the former sectoral management bodies[The Economic State...,1992, P.169].
It should be stressed that the process ofnomenklatura-bureaucraticprivatisation is controversial and can be appraised in more than one way.On the one hand, it is a clear trend toward strengthening nomenklatura monopolies under theguise of market terminology. On the other hand, it is a de facto and de jure step forward toward more realprivatisation and toward the formation of a `stock management' environment forit, and in many cases, it may be treated as a rather willing association ofenterprises to protect themselves against unstable external businessconditions.
The attempts by Russia's government (inautumn 1990) to suspend deals that implied a change of ownership (at leastthere was a verbal promise) and make an `inventory' of all privatised propertyand property which should be subject to privatisation proved to be fruitlessand actually stimulated a search for new by-passes and semi-legal ways ofprivatisation.
The form `people's (collective) enterprise'was very often used by enterprises in light and local industries, in the areaof retail trade, the public catering sector and the consumer servicingsector. Commonly, enterprises were first leased, with a subsequentbuy-out right, by work collectives. Because of the lack of firmlegislative provisions the forms of ownership of these enterprises were quiteloose. Once the provisions in the Fundamental Regulations of the stateprogramme of privatisation for 1992 were out of use, such forms ofprivatisation as lease with a buy-out right, and the fact that there areenterprises which are still `on lease' and have not yet been bought out, allgave birth to many legal collisions, although their transformation intofull-fledged joint stock companies operating on the principle of private shareownership seems to be inevitable.
During 1991 some 60 rather large industrialenterprises were turned into the collective form of ownership. Table 3gives some general statistics on how this process has proceeded.
This form of privatisation is associatedwith direct violations of the legislation, when lease contracts with a buy-outright were signed after the date on which the ban on this was proclaimed.This kind of falsification went on even in 1992. The `official'privatisation that started in january 1992, mostly (in the first half of 1992)followed the buy-out line via lease agreements that were initiated prior to theadoption of the Fundamental provisions that put an end to the conclusion of newcontracts with a buy-out provision. Out of more than 2,500 applicationsput into effect by the beginning of April, some 900 related directly to thistype of privatisation [Privatisation..., 1992]. Moreover, experts believe that up to 50% of thesecontracts were falsified, i.e. were drawn up after the official ban withantedating of the contracts.
Starting from 1991, such forms as tendersand auctions conducted by the local and city authorities at their own risk wereused rather actively, it was only in 1992 that the appropriate federallegislation came out. Various small commercial and consumer servicesbusinesses, housing and real estate were offered for sale. Both legalentities and natural persons could act as buyers.
One more trend in spontaneous privatisationis conventionally called managerial privatisation. By this we mean apackage of measures (sometimes almost on the border of legality) designed totransfer ownership form state-owned enterprises to private hands withoutaccompanying special permission from the central or local authorities. Inthis case the initiative rests with top executives of the state enterprisesthemselves, or it may come from the representatives of market commercialstructures interested in buying some piece of state property (share ofproperty), as a rule `sharing' it with the managers. At this level allthe deals are made, as a rule, on the basis of personal arrangements.When this kind of privatisation is carried out, the following methods may beemployed: accumulation of the assets to buy out the enterprise through aco-operative (or a chain of co-operatives), use of state equipment andmaterials for the manufacture of goods or supply of services within a privateenterprise, contribution of a state share to a mixed enterprise, creation ofvarious types of private holding companies, repurchase of unprofitableenterprises and false bankruptcy, registration of a state enterprise withsubsequent withdrawal of the state founder, purchase of state property atreduced prices for private use (e.g. bungalows, dachas, etc).
It is also possible to identify certainstages of development of spontaneous privatisation in Russia. Thecharacteristic of the first stage (prior to July 1991, when a law onprivatisation was adopted) was use of virtually any forms, including some`wild' or legally dubious steps; now it seems unrealistic to attempt to remedythe situation.
The second stage is the period from July toDecember 1991 when the law on privatisation was practically in effect but theofficial process of privatisation had not yet started because there was nostate programme and no statutory documents (though formally each enterprisecould be privatised following the patterns spelled out in the law).
Within the second stage this process notonly did not become more orderly, in spite of the presence of the more formallegislative base, but, on the contrary, became even less controlled and in aseries of cases turned out to be corrupt. Because the officialprivatisation line was suspended, the real process went on likethis:
- privatisation was carried out with apermit from the local authorities, but to do this it was necessary to provethat the enterprise concerned belonged to the jurisdiction of the municipalauthorities;
- use of the `untested' multiple channelsof acquisition of a state enterprise by natural persons; as a result what thelegal entity has is only a legal shroud, and the term privatisation does notshow up in the corresponding documents;
- redemption of the lease for enterprisesin those cases where this possibility was included in the leasecontracts.
From the end of 1991 and beginning of 1992one can speak about a third stage of spontaneous privatisation in Russia, whenin principle the fundamental privatisation documents had already been preparedand large numbers of privatisation applications had already begun to build upin the corresponding committees. In this situation, when direct methodsof privatisation became more difficult, it was inevitable that enterprisemangers would use sophisticated forms of spontaneous privatisation (themanipulation of the fight of `full business operation', the creation of shellcompanies to purchase enterprises at an auction, etc), exploit thecontradictions in the current legislation and find various methods of buy-outof lease enterprises. There was large-scale registration of variousenterprises with a mixed form of property, with state enterprises and agenciesand natural persons who contributed mainly their `intellectual property' actingas founders. A more marked trend among state enterprises was to invest(in various forms of contribution) in stock companies and other businesses (andthis in conditions of growing current insolvency). Under thecircumstances, as statistics from Goskomstat RF show, it was state enterprisesthat became the key holders of shares and interests at that time, making, asfounders, 82% of the contributions to joint stock companies and 55% inpartnerships with limited liability, while 11% of the joint stock companiesexamined were not newly established [The EconomicState..., 1992, p.169].
The real volume of spontaneous privatisationon the national scale cannot be measured quantitatively, especially keeping inmind that the battery of specific methods used is changed regularly, includingin response to each new legislative act (see also Chapters 7-8). What isessential to point out is the sharp intensification of this process in 1991that served as one of the key arguments for the fastest possible launch of theofficial privatisation model on the basis of legislation.
Chapter 5. `Programming' thePrivatisation Process
5.1. Creating Conditions for Privatisation in1991
Irrespective of the marked ideologicalshifts in approach in favour of a radical reform in property relations at theturn of 1990-1991, practical steps in this direction seemed to be a matter forthe remote future. At this time both the Union and Russia's authoritieswere only making their first experiments with conception ofprivatisation. naturally, elaboration and adoption of a fundamental lawon privatisation seemed to be the first goal. In addition to the generalincentives (a deepening of the economic crisis, available legal and ideologicalbase, and to some extent an intensification of the spontaneous process), it wasextremely important for Russia to work out a republic law before the Unionparliament could pass all-Union norms on this issue. this last factorseems to have been decisive in spurring on the law-making effort in the firsthalf of 1991.
On the basis of the package of documentsprepared by the Yavlinsky - Mashits - Grigoriev group in November-December1990, two working groups were actively elaborating privatisationprogrammes: the Group of the Supreme Soviet of the RSFSR (P. Filipov) andthe Group of the Council of Ministers of the RSFSR (M. Malei). Incontrast with the Yavlinsky package, the programmes of these groups providedfor some free distribution of state property in the form of investment vouchers(deposits). While Filipov's package was geared to the combination ofvarious forms of privatisation, (e.g. it provided for investment deposits, saleof shares of state-owned enterprises, tenders, auctions, partial buy-outs andso on), for a term of 5-6 years, Malei's package was much more rigid and in itthe priority was definitely given to a `collective form of privatisation',through the so-called `people's enterprises', and it was to be implemented atonce.
The RSFSR law `On Privatisation of State andMunicipal Enterprises in the RSFSR', which was introduced for a second readingin the form presented by the Filipov group, was adopted on 3 July 1991.The most acute debates concerned the so-called forced privatisation ofenterprises, the priority rights of work collectives to a buy-out andprivileges for the employees in privatisation. So 3 July also saw theadoption of the RSFSR law `On Registered Privatisation Accounts and Deposits inthe RSFSR' and a decree of the Supreme Soviet on `Adoption of the Regulationson the Russian Federal Property Fund'. /21/
Article 1 of the RSFSR law `On Privatisationof State and Municipal Enterprises in the RSFSR' spells out that privatisation`is the acquisition by citizens, joint stock companies (partnerships) ofvarious forms of property (as provided by the law) from the state and localsoviets of the people's deputies as private property. The share of thestate, a local soviet, public organisation or charitable fund was limited to25% in the authorised capital of the buying legal entity. The lawprovided for a sale of shares of the enterprise being privatised, by auction ortender, and certain benefits for the workers, and in general a very wide rangeof methods of privatisation - as well as broad possibilities for theirinterpretation.
The administrative and bureaucratic aspectof privatisation were entrusted to the State Committee of the RSFSR for theManagement of State Property (GKI), a part of the government, while the actualselling or `holding' of property was a function of the Russian Federal propertyFund, which operated under the aegis of the Supreme Soviet /22/. Thus theelement of dualism inserted into the diagram of control over the privatisationprocess became one of the key elements that was a brake on the path ofprivatisation and reinforced the confrontation at all levels of authoritybetween the legislative and executive organs in 1991-1993.
In general, the law `On Privatisation ofState and Municipal Enterprises in the RSFSR' was not in contradiction with theUnion law `On the Foundations of Restoration of Property to Private Ownershipin the USSR' of 1 July 1991, at least because the latter had no direct legalforce and had to be implemented through republican legislation. And yetthere were also some differences between them. For instance, while Russiaprovided for a mechanism of free handout of some state property (openingregistered investment funds for private citizens), the USSR law was primarilygeared to sales. In the Union law a work collective enjoyed a priorityright to purchase an enterprise, while the Russian law gave no clear-cut normsof priority for enterprises' workers. And finally, as far as the USSR wasconcerned, a uniform privatisation body was provided - the Fund of the StateProperty of the USSR - while Russia actually adopted some dualism in monitoringthe process of privatisation.
The political situation in Russia afterAugust 1991 was conducive to the radicalisation of the economic reforms ingeneral and to the implementation of the privatisation programme inparticular. At the same time, the instability and anarchy characteristicof the current economic process, the state of permanent confrontation betweenthe legislative and executive powers, the ambitions of the regions, and thelack of control and corruption of the officials at various levels of power wereundermining the success not only of the implementation but even of thelaunching of the programme.
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