Abstract: Due to the new economy policy based on the market economy the social ownership has been unfit and there has been need to transform it into the individually conceptualized right of ownership. The article deals with the process of transformation and privatization.
Key words: ownership, social ownership, transformation & privatization.
In the ex-socialist countries there was a type of socialist ownership that represented the type of collective ownership. This type of ownership was established for the first time, understandably, in the USSR, which was present in all the ex-socialist countries. However, both the former SFRY and their republics and autonomous provinces developed a different form of socialist ownership that represented a constitutional category during their existence and was defined as «social ownership».
«The social ownership is a socialist social-economic relation. The means of production and other means of work, as well as mineral and other natural resources belong to each member of the society and to all together at the same time, but not to anyone in totality and not to anyone exclusively.» (Horvat, 1972)
During the existence of the SFRY the law theoreticians who were in the function of creating the official politics, interpreted the social ownership as the form of ownership the titular of which was the society, e.g. the social community. The means of production belonged to all the members of the society altogether and not to anyone individually.
According to this interpretation, the means of production belonged to the society in the totality and not to any special social (legal) subject. Namely, it was stated then that means of production served exclusively to the social labour in order to satisfy personal and common needs and interests of working people and to develop material basis of socialist society and socialist self-management relations.
Consequently, the social ownership was the basic institution of socio-economic order in the former SFRY that was ideologically strongly "coloured".
The ideological coloration of the social ownership can be best seen in the following statement of the then political structures and apologetic law theoreticians of: "the social ownership cancels the alienation of the working class from the means of productions and other working conditions as a source of human exploitation". The then political and law theoreticians claimed that this aspect of collective ownership excluded the possibility of private and state ownership of means of production, thus the possibility of worker's exploitation by an individual or the state was excluded. Due to this interpretation, the thing that was omitted was any legal argumentation representing the individual concept of ownership where the titular was known.
In the Republic of Croatia the terms of "transformation" and "privatization" of social ownership are very often used as synonyms, e.g. there is no difference between the terms mentioned. The notional difference is of great importance so that one could understand the transformation of the former constitutional institute of social ownership that was ideologically strongly "colored" in the former Socialist Republic of Croatia, e.g. in the Socialist Federative Republic of Yugoslavia.
The transformation is a process of transforming the social ownership into public (state) ownership, where the state becomes the owner of all owners' rights. The privatization presents the transfer of owner's rights of the state, e.g. the public sector to the private owners with the corresponding owner's rights.
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Due to the ideological construction of the term "social ownership", the process of transformation and privatization in the Republic of Croatia has been more complex in comparison to other socialist countries.
As mentioned above, the social ownership was not defined as legal but as socio-economic relation, where there was no titular. During its existence it had shown many failures that had formed major obstacles to the social development and the entrepreneurship in particular.
Due to the new economy policy based on the market economy the social ownership has been unfit and there has been need to transform it into the individually conceptualized right of ownership. The first step was done in the Constitution of the Republic of Croatia that does not know the social ownership, providing the right of ownership and defining the Republic of Croatia as a social state.
The 48th article 48, paragraph 1 of the Constitution of the RH states: "The right of ownership is provided." This constitutional prescription means going back to the sources of the civil constitutionality and it abolishes all the previous limitations to the right of ownership in the Socialist Republic of Croatia. It has stipulated passing of the adequate legislation that has enabled the transformation of the social ownership into, according to their nature, new forms of ownership relations and that has been achieved by transforming the then socially owned subjects into legal subjects who can be the carrier of the right of ownership.
Regulating the transformation of the former subjects of the social ownership, the provisions of some laws have explicitly defined that the social objects which these subjects had the right to manage and use, are to become the ownership of a certain legal subject, mostly the state ownership. This transformation of the former legal subjects of social ownership into the legal subjects that can carry the right of ownership has been carried out in two phases. In the first phase, the transformation of the social ownership into the state or the private ownership; in the second phase, the privatization of the state ownership formed in the process of transformation, respecting the idea of the private ownership that is to become the dominant form of ownership in the Republic of Croatia.
Normatively regulating the transformation of the former subjects of the social ownership into the legal subjects, the numerous laws have explicitly defined that the objects in the social ownership, which these subjects had the right to manage and use, are to become objects in someone's ownership (mostly in the ownership of the Republic of Croatia. Namely, the specific subjective rights that existed during the legal institute of social ownership as the rights of the subjects in the social ownership (the right of management, usage and disposal over social objects, the right of usage of not fully built real estate in the social ownership) have been transformed into the right of ownership.
The first step at defining the legal and institutional frames to the model of transformation of social ownership and its privatization in the Republic of Croatia was made by passing the Law of transformation of social firms in 1991. The basic decisions of this law, that had some changes done the 31[st] April 1991, marked the real start of the transformation and the privatization.
The Law of transformation of social firms has regulated the transformation of the firm with the social capital into the firm that is owned by a certain owner. The transformation completed, the firm could become either a joint-stock company or a companvy with limited liability that has a totally known owner. The transformation of ownership enables the ownership of the company to the following: the employed and earlier employed in the company or in the composite form of associating or organizing with main discount of 20% for each year of employment and they have the priority right at buying shares of the company being transformed either into joint-stock company or into company with limited liability; the employed in the legal subjects that work with means socially owned, that are not to be transformed, according to this law; the employed in the legal subjects owned by the state; the employed by the bodies of the state administration, under the same conditions as the company employees; the persons who do not have the discount right and who buy the whole company or its ideal part; the investors whose investments have been turned into shares or into a part in the company or they invest into the company; the Republic Pension and Disability Fund of Croatian Workers; the Republic Pension and Disability Fund of Croatian Farmers, the Croatian Fund for Development, the former owners to whom the Croatian Fund for Development transfers the shares or the part as reimbursement in the corresponding value of what had been taken away from them after the 15[th] May 1945.
According to the provisions of the Law of privatization in the Republic of Croatia, the privatization has been defined as a segment of the total economy and development strategy and policy and their main goals are as follows: faster economy growth in the conditions of market economy; maintaining the productive employment and creating of new employment positions; technological modernization of Croatian economy; implementation of the new highly effective management know-how; inclusion of the
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Croatian economy into the development trends of European and world economy and at the international market of capital; stimulation of the Croatian entrepreneurship growth; stimulation of the entrepreneurs of Croatian immigration to support Croatian economy growth; reducing of the obligation of the Republic of Croatia towards the companies (cutting subventions) and lowering the public debt. However, in addition to the strategic goals of privatization, defined by the law, the main motive is to accumulate of capital revenue in the structure of the state budget. Since the independence of the Republic of Croatia this capital revenue has been in the function of covering the public expenditure, e.g. the essential needs of Croatian society. In the sense of the Law of privatization, the privatization could have been carried out by selling company shares, parts of the company ownership, objects, rights and transfer without payment of shares and parts to individuals and legal persons.
The privatization of the former social ownership in the Republic of Croatia has not had the economic and financial effects in a certain number of cases. The main reason for this can be found in certain illegal aspects during the process of privatization and these are: the abuse of manager's lawns; the lowering of the appraisal of a company's property; giving guarantee deposits of a bank as an instrument of insurance when realizing the lawns of domestic and foreign companies; bogus capital investment; transforming of bogus credit into ownership and there are two models of this transformation: the first one presents taking over of the company, the so called blowing up of the prices of the equipment delivered and the repro-material and the second one presents the transformation of the bogus credit into ownership based on the illegal revalorization of the lawn paid off; buying the company by its own financial means, by the so called money laundry through the off-shore companies abroad.
- Horvat, V.: Društveno vlasništvo i minuli rad, Ekonomski institut Zagreb, Zagreb 1972
- the Bill of amendment to the Law of transformation of social firms (N.N. no. 16/1993)
- the Bill of change and amendment to the Law of transformation of social firms (N.N., no. 45/1992)
- the Bill of the disposal of shares and portions acquired by the Croatian Privatisation Fund based on the Law of transformation of social firms (N.N. no. 94/1995)
- the first step was done in the Constitution of the Republic of Croatia (NN, no. 56/1990., 135/1997., 8/1998., 113/2000., 41/2001., & 55/2001)
- the Law of Agency SRC for restructure and development (N.N. no. 18/1990)
- the Law of amendment to the Law of transformation of social firms (N.N. no. 94/1993)
- the Law of amendments to the Law of transformation of social firms (N.N. no. 9/1995)
- the Law of change and amendment to the Law of transformation of social firms (N.N., no 73/1992)
- the Law of changes and amendments to the Law of Agency of RC for restructure and development (N.N. no. 19/ 1991), the Law of changes and amendments to the Law of Croatian fund for development (N.N. no. 87/1996)
- the Law of changes and amendments to the Law of Croatian fund for development (N.N. no. 84/1992)
- the Law of changes and amendments to the Law of fund of RC (N.N. no. 42/1990)
- the Law of changes and amendments to the Law of transformation of social firms (N.N. no. 2/1994)
- the Law of Croatian Development Fund (N.N. no. 84/1992)
- the Law of Croatian fund for privatisation (N.N. no. 84/1992)
- the Law of fund of SRC for development (N.N. no. 18/1990)
- The Law of privatisation (N.N. no. 21/1996.)
- the Law of privatisation of investment fund (N.N. no. 109/1997)
- the Law of prohibiting the transfer of the disposal and usage right over certain real estate in the social ownership to some other users, e.g. into the ownership of a person or a legal subject (N.N., no. 53/1990, 25/1993, 70/1993) ■
Lábjegyzetek:
[1] The Author is a professor of law.
[2] The Author is a dipl. iur., Josip Juraj Strossmayer University, Osijek.
Visszaugrás
