Commercial organizations created to manage entrepreneurial activity and therefore have main goal- Receiving a profit.
Commercial organizations: Business partnerships:1. General partnership 2. Limited partnership. Business companies:1.OOO. 2. Company with additional liability 3.JSC. 4. Closed joint-stock company 5. Open joint-stock company of workers (people's enterprise). Production cooperatives (artels). Unitary enterprises(state or municipal, state):1. Based on the right of economic management 2. Based on the right of operational management.
Economic partnership- this is a commercial organization with a share capital divided into shares (contributions) of the founders (participants), which was created as a contractual association of several persons for joint business activities. entrepreneurial activities on behalf of the partnership and are liable for its obligations not only in the amount of contributions to the share capital, but with all the property they own, that is, “full”, unlimited liability. A limited partnership is a commercial organization based on share capital , in which there are two categories of members: general partners and limited partners. General partners carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property. Limited contributors are responsible only for their contribution.
Economic companies. 1. A limited liability company is a business company established by one or more legal entities and/or individuals, the authorized capital of which is divided into shares; the participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares in the authorized capital of the company. 2. A joint-stock company is a commercial organization, the authorized capital of which is divided into a certain number of shares, certifying the obligations of the company's participants (shareholders) in relation to the company. The activities of a joint stock company in the Russian Federation are regulated by the Federal Law "On Joint Stock Companies". Members of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares. There are open and closed joint-stock companies. 3. Company with additional liability - a company founded by one or several persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; the participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same for all multiples of the value of their contributions, determined by the constituent documents of the company.
Production cooperative ( artel ) - a commercial organization created by voluntary association of citizens on the basis of membership for joint production and other economic activity based on their personal labor and other participation and the association of its members (participants) of property share contributions. The charter of a production cooperative may also provide for the participation of legal entities in its activities. Members of a cooperative bear subsidiary liability for its obligations in the manner prescribed by its Charter. The total number of members of a production cooperative cannot be less than 5. Citizens may be members of a cooperative. Russian Federation, foreign citizens, stateless persons. A legal entity participates in the activities of the cooperative through its representative in accordance with the Charter of the cooperative. The only founding document of a production cooperative is the Charter. The minimum size of the share fund of a production cooperative is not established by law. Members of a cooperative are required to pay at least 10% of their share contributions before the state registration of the cooperative, and the remaining part - within one year from the date of registration. A member of a cooperative has the right to transfer his share or part of it to another member of the cooperative, unless otherwise provided by law and the charter of the cooperative. supreme body management in a production cooperative is the general meeting of its members, which decides critical issues activities of the cooperative, including electing the permanent executive bodies of the cooperative - the board and / or chairman of the cooperative. The executive bodies manage the activities of the cooperative between meetings, resolving issues that are not within the exclusive competence of the general meeting.
unitary enterprise- a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. In this form, only state and municipal enterprises. Property (respectively state or municipal) belongs to a unitary enterprise on the right of economic management. A unitary enterprise is liable for its obligations with all its property, but is not liable for the obligations of the owner of its property. The size of the statutory fund of a state unitary enterprise must be at least 5,000 minimum wages, for a municipal enterprise - at least 1,000 minimum wages. The founding document of a unitary enterprise is the charter.
The general allows the entrepreneur to carry out any legally permissible type of entrepreneurial activity. General competence typical for most commercial organizations;
Limited. In the event that the founders determine the purpose of the company in a certain area of business, they can establish the limited competence of such an organization, indicating this in the company's constituent documents (for example, restrictions on retail in the charter wholesale organization). Transactions made by an organization in contradiction to the goals of its activities, which are specifically limited in the constituent documents, may be declared invalid by the court in the cases provided for in Art. 173 of the Civil Code of the Russian Federation. An explanation of this is given in paragraph 18 of Resolution No. 6/8 of the Plenum Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 “On some issues related to the application of part one Civil Code Russian Federation".;
Non-Profit Organizations, By general rule, differ from commercial ones in that they have the right to carry out entrepreneurial activities only insofar as it is necessary to achieve their statutory goals. At the same time, they are not entitled to distribute the profits received among their participants (clause 1, article 50 of the Civil Code of the Russian Federation).
Non-profit organizations:
consumer cooperatives. - Public and religious organizations (associations). - Funds. - Institutions. - Associations of legal entities (associations and unions). - Autonomous institutions. - Non-commercial partnerships. - Self-regulatory organizations.
Non-profit organizations also have the right to engage in entrepreneurial activities. An increasingly important role for entrepreneurs is played by self-regulatory organizations. According to Art. 2 of the Federal Law of 08.08.2001 No. 134-FZ “On the Protection of the Rights of Legal Entities and individual entrepreneurs when conducting state control (supervision)”, a self-regulatory organization is a non-profit organization created by combining legal entities and (or) individual entrepreneurs and having as its main goal ensuring the fair implementation of professional activity members of a self-regulatory organization. The most widespread self-regulatory organizations have received in the field of activity of arbitration managers, in the field of advertising and auditing activities.
In general, entrepreneurial activity by its nature must correspond to the goals of the activity of a non-profit organization in accordance with its charter. Only one kind of non-profit organizations cannot conduct commercial activities under any conditions - it is an association, or a union of legal entities. In order to carry out independent entrepreneurial activities, an association (union) of legal entities creates a business company, participates in a business company or is transformed into a business company or partnership (Article 121 of the Civil Code of the Russian Federation).
Economic competence.
Entrepreneur's legal capacity.
Quite well, the legal possibilities of doing business are characterized by the economic and legal competence of a legal entity. Distinguish the following types economic and legal competence:
The general allows the entrepreneur to carry out any legally permissible type of entrepreneurial activity. General competence is typical for most commercial organizations, except for unitary enterprises and individual entrepreneurs due to general rule;
Limited. In the event that the founders determine the purpose of the company in a particular business area, they can establish the limited competence of such an organization, indicating this in the company's constituent documents (for example, restrictions on retail trade in the charter of a wholesale organization). Transactions made by an organization in contradiction to the goals of its activities, which are specifically limited in the constituent documents, may be declared invalid by the court in the cases provided for in Art. 173 of the Civil Code of the Russian Federation. An explanation of this is given in clause 18 of Resolution No. 6/8 of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation”;
Special i.e. they exercise the powers corresponding to the objectives of the activity provided for in the charter, and bear the obligations associated with this activity (for example, state unitary enterprises for household services population).;
exceptional, whose legal status can be characterized as exceptional due to the fact that the legislation allows them to conduct only the entrepreneurial activity specified in the license and the services related to this activity. The largest number of such restrictions in legislative framework regulating the activities financial institutions. For example, credit and insurance organizations are not entitled to engage in production and trade and intermediary business.
The modern civil legislation of Russia (Article 132 of the Civil Code of the Russian Federation) defines the concept of "enterprise" as a property complex used for entrepreneurial activities. At the same time, the named article considers the enterprise as an object of civil rights. Such a legislative position significantly changed the legal status of the enterprise, which was generally approved (even admired) by representatives of civil science. Sometimes the question of an enterprise as a property complex is not even commented on the principle: why discuss anything, if everything is clear anyway. The enterprise is an object of civil rights, and this says a lot.
Indeed, the term company"had a different meaning for a long time. In the Soviet period, the legislator under the word" company"saw the figure of a subject of law, including civil law. In the early 90s, the definition of an enterprise was formulated in the Law of the RSFSR "On Enterprises and Entrepreneurial Activities." According to paragraph 1 of article 4, an enterprise is an independent business entity created in the manner prescribed this Law, for the production of products, performance of work and provision of services in order to meet public needs and make a profit.At the same time, the concept of "enterprise" and related problems continue to cause scientific disputes among legal scholars (and not only). Western civilists have paid increased attention to the legal institution before and continue to do so now.According to some researchers, the era of the enterprise has come, which affects all areas of the current legal system.The appearance of the enterprise in legal regulation is compared with the advent of the third estate to political power at the end of the 18th century.
Moreover, modern legislation is industrially developed countries most often uses the term " company"not a concept" entity". Both supporters of economic (business) law and their scientific opponents point to this circumstance. For example, in France there is Law N 85-98 on the restoration of enterprises and the liquidation of their property in court, Law N 8599 on bankruptcy trustees, liquidators and experts to determine the status of enterprises. joint-stock companies Germany in 1965 devoted a special book to the regulation of relations between related enterprises. The term " company began to appear in the texts of international agreements and conventions.
Therefore, it is hardly possible to indiscriminately assert that the concept of " company" is used in the legislation of foreign states erroneously, which would be more correct to use the term "legal entity". After all, it is impossible to consider the legal model of an enterprise formulated in the Civil Code of the Russian Federation as a criterion of truth (for all respectful attitude to this product of civilistic thought).
In theoretical terms, the phenomenon of the enterprise raises a number of fundamental questions. Let's take a look at them in detail.
First of all, we note that the term "enterprise" has an economic origin. Even K. Marx, criticizing P. Proudhon on the issue of understanding factories and machines, wrote:
"The machine is only productive force. The modern factory, based on the use of machines, is a social relation of production, an economic category.
However, this is where the unity of opinion among academic economists ends and a palette of different points of view is revealed. So, for some researchers, an enterprise is the primary cell of the economic system, for others it is a team of workers and employees, for others it is an economic unity in which human and material factors of economic activity are combined and coordinated. With different interpretations of opinions, the most common (at least in Western economic literature) point of view on the enterprise as a place of connection of various factors: natural resources, labor and capital. Domestic scientists-economists react poorly to the economic origin of the enterprise.
The economic nature of the enterprise is manifested, in particular, in the fact that the enterprise is a property complex (a set of assets). This affiliation allowed a number of legal scholars to attribute the enterprise to the category of things.
This conclusion is in line with Art. 128 of the Civil Code of the Russian Federation, according to which the objects of civil rights include things, including money and securities, other property, including property rights. We must agree with the opinion that an enterprise is an object that " falls out"from the classification of immovable and movable things, since it is not even a complex thing. Therefore, an enterprise is a special object of civil rights, and therefore it would be advisable to supplement Article 128 of the Civil Code of the Russian Federation with a norm on an enterprise.
Within the meaning of Art. 132 of the Code, an enterprise is not just a property complex. This is a complex used for business activities. In this capacity (when the participation of the owner-subject in the civil circulation makes it possible to extract a stable and definitely predictable income), the property complex becomes an enterprise. From this, two fundamentally important conclusions can be drawn. First, the concepts of "property complex" and "enterprise" are related as a genus and species. The foregoing means that the scope of the concept of a property complex should not be limited to commercial organizations, the main purpose of which is to make a profit. This concept apply to non-profit organizations with the only difference that the property complex is not used as a general rule for entrepreneurial activities. On the other hand, non-profit organizations can engage in entrepreneurial activities only insofar as this serves to achieve the goals for which they were created (clause 3, article 50 of the Civil Code of the Russian Federation). In this case, the property complex of a non-profit organization (say, an institution) should be called an enterprise. It is this approach that is found in the Law on Education (Article 47). In their business activities educational institution is equated to an enterprise and is subject to the legislation in the field of entrepreneurial activity, including tax.
Secondly, those scientists who consider the property complex as an independent object of civil rights are right. There are no grounds for not recognizing the existence of property complexes of other (except enterprises) legal entities and thereby artificially restraining their participation in the turnover.
At the same time, the belonging of the enterprise to the object of civil rights, i.e. property complex without human factor and other constituent components characterizes the considered category one-sidedly. A typical situation that arises during the implementation of insolvency (bankruptcy) procedures is indicative, when in the first place is a property complex intended for entrepreneurial activities. As for labor collective as an integral part of the enterprise, it is practically not taken into account. There is not a single article in the 2002 Bankruptcy Law that would reflect the rights and obligations of the debtor's labor collective at the stage of insolvency (bankruptcy).
A one-sided approach also took place during the total privatization of state and municipal property. The main emphasis was placed on the issue of changing the form of ownership in the shortest possible time. The interests of the labor collective were consigned to oblivion.
The enterprise as a whole as a property complex is recognized as real estate, and therefore it is subject to the general provisions of the Civil Code of the Russian Federation, as well as other federal laws on the legal regime of real estate. True, the Code does not automatically subordinate it (an enterprise) to all real estate rules, but establishes a special, more formalized and strict regime for transactions with enterprises.
The structure of the enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, work and services (company name, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or contract. In other words, the composition of the enterprise includes not only property (main and working capital), but also intangible benefits. A paradoxical situation arises: means of individualization, such as a company name, trademarks, etc., by virtue of Art. 138 of the Civil Code of the Russian Federation refer either to a legal entity or to products, work performed or services rendered. In Art. 54 of the Civil Code of the Russian Federation refers to the obligation of a legal entity - a commercial organization to have a company name. Thus, the right to a company name simultaneously belongs to both an enterprise - an object of civil rights, and a legal entity - a commercial organization.
Among the significant contradictions between individual articles of the Civil Code of the Russian Federation can be attributed the rule of Art. 132 of the Civil Code of the Russian Federation that an enterprise as a property complex includes rights of claim and debts. It is not clear if the enterprise has an object civil law why he can have property and related personal rights. It is known that from the point of view of the Civil Code of the Russian Federation only legal entities have such rights. Otherwise, it should be assumed that the enterprise has bodies that implement these requirements.
The same can be said about the norm of Art. 132 of the Code that the property complex is intended for entrepreneurial activities. Here the remark of A.E. Pilecki and other authors, according to which the object of law (in our case, an enterprise) cannot carry out any activity, since this requires the presence of legal personality.
In connection with the above point of view, V.V. Vitryansky expressed the following considerations. When the legislator mentions the rights of claim and debts as part of the property of an enterprise as a single property complex, he means, of course, the rights of claim and debts for the obligations of the owner of the enterprise related to the activities of this property complex. In itself, an enterprise, not being a legal entity, in principle, cannot have rights and obligations.
What the legislator has in mind is known only to him, and not to the respected professor Vitryansky. However, the content of Art. 132 of the Civil Code of the Russian Federation makes it possible to detect contradictions, moreover, of a very fundamental nature.
In modern courses of contract law, the words of the medieval judge Brian from judgment issued by him in 1478:
"... the intention of a person cannot be the subject of a trial, since the devil himself does not know the intention of a person."
In practice and in theory, the question arose about the inclusion in the composition of the enterprise as a property complex intended for entrepreneurial activity, property that has a different purpose (social, cultural, etc.). For example, an object of social and cultural purpose is included in the charter of a joint-stock company as a contribution. The question is: is this object subject to accounting as part of the property complex of the enterprise or is it necessary to keep some other separate accounting? There is no clear, unambiguous answer to this question in the current legislation.
By virtue of paragraph 32 of Art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include expenses of industries and households serving the taxpayer, including expenses for the maintenance of housing and communal and socio-cultural facilities. And finally, in paragraph 5 of the Regulations on accounting"Accounting for fixed assets" PBU 6/01 (approved by Order of the Ministry of Finance of the Russian Federation of March 30, 2001 N 26n) gives an approximate list of fixed assets of organizations, in which there was no place for non-production objects.
Difficulties of a practical order can be detected if, for example, the parties to the contract of sale of an enterprise wish to include in the property complex such intangible benefits as the reputation of the enterprise, its business relations or market position, which in countries with developed market economies are called goodwill. As has been correctly noted in the literature, this desire is blocked by the rule of Art. 561 of the Civil Code of the Russian Federation, according to which:
"the composition and value of the enterprise being sold are determined on the basis of a complete inventory of the enterprise, carried out in accordance with the established rules for such an inventory."
The current inventory rules do not contain provisions for assessing the value of this kind of intangible items.
The 1998 Insolvency Law provided for the sale of the debtor's enterprise (business). Article 86 of the Law did not disclose the concept of " business", its relationship with the category "enterprise". In our opinion, it is hardly possible to put an equal sign between them. Business is both the organization of entrepreneurial activity at the enterprise, and the actual relations of the enterprise with its counterparties. The inclusion of these (specific ) elements is not a simple and indisputable matter.Therefore, we agree with the opinion of O.E. Romanov that only property elements can be included in an enterprise; phenomena called clientele, chances and reputation of an enterprise are of an actual, not legal, nature therefore, they remain outside the property complex - the enterprise.
So, the enterprise is considered primarily as an object of law, which is a property complex used for entrepreneurial activities. In view of this (legal) definition, the concept of "enterprise" is not directly related to one or another organizational and legal form of a commercial or non-commercial organization. From this we can draw, in our opinion, an interesting conclusion: any entity (with or without the status of a legal entity) that carries out entrepreneurial activity is an enterprise. Let's say, for example, a branch, a representative office, an individual entrepreneur, a peasant (farm) economy - a property complex called an enterprise.
The property complexes of financial-industrial groups (FIGs) and holdings also fall under the enterprise regime. Since FIGs and holdings are a collection of legal entities, they own property. It is no coincidence that Decree of the Government of the Russian Federation of January 9, 1997 N 24 approved the Procedure for maintaining consolidated (consolidated) accounting, reporting and balance sheet of a financial and industrial group. So, in paragraph 4 of the named Procedure we read:
"Consolidated (consolidated) accounting and statistical reporting reflect the property and financial position of the financial and industrial group, as well as the results of its investment activities".
Being an object of civil rights, the enterprise serves as a subject (object), about which various kinds of social relations arise. These relations are regulated not only by the norms of civil law, but also by other branches of law. It is necessary to harmonize the regulatory array, eliminate internal (within the framework of one law) and borderline (intersectoral) discrepancies in the field of legal regulation of relations related to the legal regime of an enterprise.
The problems of the enterprise as an object of law and a subject of entrepreneurial activity are sharply discussed in the legal literature. At the same time, various scientific concepts and views, including on the issue of legal recognition of an enterprise as a subject of law. Foreign researchers note that these concepts reflect the "social order" on the part of industrial societies and companies, on the one hand, and banks, on the other. It is believed that manufacturing firms(companies) seek to limit their liability for liabilities to only the assets of the enterprise, and therefore it is in their interests to recognize the enterprise as a legal entity. In turn, it is in the interests of commercial banks to interpret an enterprise as a property (industrial and economic) complex that includes all elements, i.e. object of law.
And the last remark of the theoretical plan. The relationship between the concepts of "enterprise", "legal entity", "organization" is a complex issue that needs special research. We confine ourselves to stating the following provisions. If an enterprise is primarily an object of civil rights, then an organization has a set of features that are necessary and sufficient to recognize its quality as a subject of law. In the literature, such features of organization are called as:
- internal organizational unity;
- independent participation of the organization in legal relations;
- the presence of a certain set of property and (or) the performance by the organization of certain property transactions (property isolation);
- independent responsibility of the organization for violation of the law.
And although these signs characterize the organization as a subject of tax law, they (the signs) can be used in relation to other organizations. Thus, the concept of "organization" covers, in our opinion, such collective formations as financial and industrial groups, holdings, concerns, consortiums, branches and representative offices of legal entities. In other words, the concept of an organization is much broader than the concept of a legal entity, which is rightly pointed out by representatives of various branch sciences.
In the field of tax law research, a significant contribution to the development of the idea and concept of the organization as a subject of tax law was made by prof. D.V. Vinnitsa. Rightly arguing that the category "legal entity" is not able to cover all the collective subjects of tax law, he offers the whole a complex of collective subjects of tax law that do not have power in the field of taxation, differentiate into three types of organization:
- complex;
- simple;
- with limited tax rights.
With this classification, all legal entities (Russian and foreign) that do not have tax immunity in the Russian Federation and do not have territorially separate subdivisions and other corporate entities with civil legal capacity will be included in the number of simple organizations. Complex organizations include the above legal entities and other corporate entities with civil legal capacity (including if they include territorially separate divisions). And organizations with limited tax rights are understood as territorially separate subdivisions.
In view of the foregoing, it can be argued that a legal entity is certain property organizations. Therefore, it is correct to talk about the types of organizations that have the status of a legal entity and do not have such a status. This is the main classification of the organization.
Commercial organizations as subjects of business law: concept and types.
A commercial organization is a legal entity that pursues profit making as the main goal of its activities, in contrast to a non-profit organization that does not aim to make a profit and does not distribute the profit received among the participants
The main features of a commercial organization:
The purpose of the activity is to make a profit;
The organizational and legal form clearly defined in the law;
Distribution of profit between the participants of the legal entity.
Also, commercial organizations have all the features inherent in a legal entity: They have separate property on the basis of ownership, economic management or operational management, other property rights; the property may be leased; Responsible for their obligations with their property; Acquire and exercise property and non-property rights on their own behalf; have responsibilities;
Can be a plaintiff and defendant in court.
Types of commercial organizations are defined by Part 2 of Art. 50 of the Civil Code of the Russian Federation: Legal entities that are commercial organizations can be created in the organizational and legal forms of economic partnerships and companies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises.
Members of a commercial organization have the right to participate in management.
Get information about their activities.
Receive profit in proportion to the contribution.
Receive property after liquidation.
The procedure for creating a commercial organization
1. Determination of the composition of the founders, holding a general meeting of founders.
(various requirements for the competence and status of the institution, depending on the legal form) Restriction for the state. Employees.
2. Choice of legal form (with the exception of restrictions) The auditors are not OJSC.
1. Number and status of the institution.
2. Activity profile.
3. Sources of capital.
4. The structure of relations both between the founders and between the governing bodies.
5. Measure of labor and other personal participation.
6. Ability to control other commercial organizations.
7. Measures of responsibility of the founders.
3. Registration of constituent documents.
Memorandum of association (Business partnership) - documents that are concluded by the founders of legal entities. Persons in a simple written form, by drawing up a single document, indicating in it the place and date of the conclusion of the contract, and in the same place its validity period, signed by the participants personally.
Charter (JSC, LLC, Production cooperative, state municipality. Enterprise) - documents establish the legal status of the organization.
4. Development of the name of a commercial organization - individualization in economic circulation. Mandatory reference to organizational and legal shape. Legal regime objects of foreign communities. Sometimes the use of certain words (for example, Bank)
5. Determination of the location of the organization (indicated in the constituent documents) - the location of the main governing body of a permanent legal entity.
6. Formation of authorized (share) capital, authorized share fund (at the time of state registration for ... .. not less than 50% - capital, 10% - share contribution in a production cooperative)
7. State registration of jur. Persons in the manner prescribed by law.
Registration with the tax authority, state. Social funds.
Prints. Registration with the statistical authorities.
Opening a current account.
The creation of a subject of business law is a process of performing legally significant actions and adopting relevant acts aimed at giving a person the status of a subject of business law.
Traditionally, there are four ways to create business law entities.
1. The constituent-administrative method provides that the basis for the establishment of a legal entity is the order of the relevant state or municipal body (decisions of the Government of the Russian Federation, bodies of constituent entities of the Russian Federation and local government). This method is used when creating state and municipal unitary enterprises. The functions of the owner to create such enterprises are assigned to the relevant federal executive authorities, the executive authorities of the constituent entities of the Russian Federation and the relevant local governments.
2. The founding method is used when creating commercial organizations with one participant (for example, business companies), as well as when legitimizing individual entrepreneurial activity.
3. The contractual-constituent method is used when creating commercial organizations with more than one founders (economic partnerships, business companies, production cooperatives).
4. The permissive-constituent method provides for the need to obtain permission from a state body to create a commercial organization (for example, on the basis of Article 17 of the RSFSR Law “On Competition and Restriction of Monopoly Activities in Commodity Markets”, in some cases it is necessary to obtain permission from the antimonopoly authority).
Types and procedure for the reorganization of a commercial
Organizations
The reorganization of a legal entity (merger, accession, division, separation, transformation) may be carried out by decision of its founders (participants) or by the body of the legal entity authorized to do so by the founding document.
It is allowed to reorganize a legal entity with a simultaneous combination of its various forms.
Reorganization is allowed with the participation of two or more legal entities, including those created in different organizational and legal forms, if this Code or another law provides for the possibility of transforming a legal entity of one of such organizational and legal forms into a legal entity of another of such organizational and legal forms.
Reorganization - a set of legally significant actions of the founders of legal entities and state. Bodies aimed at the implementation of the transition of rights and obligations of legal entities. Persons to other legal entities. Persons in the order of succession, as well as commission by authorized government bodies acts of state Registration of creation and liquidation of legal entities. Persons changing their constituent documents. GK is regulated.
Types (forms):
1. Merger: When legal entities merge, the rights and obligations of each of them are transferred to the newly established legal entity in accordance with the deed of transfer.
2. Accession: When a legal entity joins another legal entity, the rights and obligations of the affiliated legal entity are transferred to the latter in accordance with the deed of transfer.
3. Separation: When a legal entity is divided, its rights and obligations are transferred to newly emerged legal entities in accordance with the deed of transfer.
4. Separation: When one or more legal entities are separated from a legal entity, the rights and obligations of the reorganized legal entity are transferred to each of them in accordance with the deed of transfer.
5. Transformation: When a legal entity of one organizational and legal form is transformed into a legal entity of another organizational and legal form, the rights and obligations of the reorganized legal entity in relation to other persons do not change, with the exception of the rights and obligations in relation to the founders (participants), the change of which is caused by the reorganization .
6. Depending on the subject that made the decision to reorganize the legal entity. Persons:
1. Voluntary (the decision is made by the founders)
2. Forced (in cases provided for by law in case of violation of publicity, an external manager is appointed)
Reorganization procedure:
1. Consent of state bodies (merger, accession if the transaction of total assets is more than 30 million rubles)
2. Written notice to creditors (may require early repayment of the performance of the obligation or termination of the obligation and indemnification)
3. Ensuring the rights of creditors (the deed of transfer must contain information about the succession, if the deed of transfer does not determine the successor - joint and several liability)
4. Making a decision on reorganization, approval of the deed of transfer
5. State registration of newly formed legal entities.
6. A legal entity is considered reorganized from the moment of state registration of changes in the Unified State Register of Legal Entities.
1. The act of transfer must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties, as well as the procedure for determining the succession in connection with a change in the type, composition, value of property, the emergence, change, termination the rights and obligations of the reorganized legal entity that may occur after the date on which the deed of transfer is drawn up.
2. The deed of transfer is approved by the founders (participants) of the legal entity or the body that made the decision to reorganize the legal entity, and is submitted together with the constituent documents for the state registration of legal entities created as a result of the reorganization, or for making changes to the constituent documents of existing legal entities.
Failure to submit a deed of transfer along with the constituent documents, the absence of provisions in it on the succession of all obligations of the reorganized legal entity entails a denial of state registration of legal entities created as a result of the reorganization.
COMMERCIAL ORGANIZATION AS A SUBJECT OF BUSINESS ACTIVITY
Dzhigkaeva Fatima Zaurbekovna, competitor Sogu, teacher.
Annotation. The article discusses various approaches to the concept and form of commercial organizations as business entities in Russia.
Key words: entrepreneurial activity, legal entity, commercial organization, form of commercial organization.
COMMERCIAL ORGANIZATION AS AN ENTREPRENEUR
Dzigkaeva Fatima Zaurbekovna, candidate degree seeker of the North-Ossetian State University, senior lecturer of Civil and Entrepreneurial Law Department.
Abstract. In article various approaches to concept and the form a commercial organization as subjects of enterprise activity in Russia are considered.
Keywords: enterprise activity, the legal body, the commercial organization, the form of the commercial organization.
According to paragraph 1 of Art. 30 and paragraph 1 of Art. 34 of the Constitution of the Russian Federation, the right to association, as well as the right to freely use one’s abilities and property for entrepreneurial and other economic activities not prohibited by law, are constitutional and inviolable rights. The implementation of these rights occurs, in particular, through the creation of organizations (including organizations that pursue profit as the main goal of their activities). “The legal entity is used as a legal registration of the created organization in order to give it the necessary independence and ensure its participation in legal relations”1.
Civil law regulates relations between persons engaged in entrepreneurial activities and registered in this capacity in the manner prescribed by law, by virtue of Part 3, Clause 1, Art. 2 of the Civil Code of the Russian Federation. Entrepreneurial activity is carried out by a wide range of persons, including business partnerships and companies, production cooperatives, state and municipal unitary enterprises, holdings, branches, individual entrepreneurs and even non-profit organizations (with certain conditions), it is extremely difficult to find a generalizing category for which it is extremely difficult, therefore, combining them according to the criterion of the general nature of the activity is quite successful - “persons engaged in entrepreneurial activity” is a specific group of not always subjects of law, but “persons”. The dichotomous nature of the division of persons (from the Latin "persona") into natural persons and persons called "legal" is generally recognized. such subjects of law that “do not fit the concept of a natural person, whose very personality
1 Yakushev V.S. The Institute of a Legal Entity in Theory, Legislation and Practice // Anthology of the Ural Civil Law. 1925 - 1989. M.: Statute, 2001. S. 391
created only in the name of law. However, in the context
Part 3, Clause 1, Art. 2 of the Civil Code of the Russian Federation, we believe it is possible to move away from the specified classification of persons as subjects of law. This rule assumes the need for two essential conditions for recognizing a person as a business entity: 1) carrying out entrepreneurial activities and 2) registering him as an entrepreneur. Thus, we come to the conclusion that the circle of persons engaged in entrepreneurial activity may be wider than the circle of business entities.
Please note that the condition for recognizing the legal personality of such persons is not just state registration, but registration as an entrepreneur. It should be noted that, according to the current legislation of the Russian Federation, this sign is applicable only to a citizen who has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur (clause 1, article 23 of the Civil Code of the Russian Federation). As for organizations, it is hardly possible to single out some special, provided for by the norms of the current legislation of the Russian Federation, registration of an organization as a person engaged in entrepreneurial activity.
It seems that the legislator, defining the circle of subjects of entrepreneurial activity, intended to establish by this norm, in particular, for organizations a mandatory condition for them to have the right to carry out this activity as a result of registration of an organization established in the relevant legal form, as a legal entity. However this conclusion is only conceived as a result of a systematic interpretation of a number of provisions of the Civil Code, but does not follow directly from the meaning of the norm of the law. At the same time, in addition to legal entities created and registered in accordance with the requirements of the law, reality also gives rise to other forms of organizations that do not fit into the organizational and legal forms established by law, but are fully related to “entrepreneurship activities”. Such organizations with a complex and sometimes unclear internal structure, with a powerful concentrated economic potential, carry out entrepreneurial activities without worrying about state registration, because the norms of the law make it possible to be satisfied with the registration of only individual, its essence, components. The organization itself creates its own essentially structural units(let's call them structural organizations) in the established legal forms, and the state registers such structural organizations as legal entities - subjects of law. The norms of the law are not violated, but the current situation certainly does not correspond to the goals set by the legislator when regulating the legal status of business entities.
The concept of "persons engaged in entrepreneurial activity", not limited by the requirement of state registration, includes absolutely all social entities operating in the field of entrepreneurship, and primarily commercial organizations. Consider which of
2 Meyer D.I. Russian civil law. M.: Statute. S. 136
social formations can be attributed to commercial organizations and what is supposed to be thought of under the concept of "commercial organization".
The use of this term in the singular is not quite traditional for civil law and is not common in science and legal practice. The reason for this is the emphasis of the legislator on the scope of this concept to the detriment of the content. In paragraph 2 of Art. 50 of the Civil Code of the Russian Federation indicates a closed list of possible organizational and legal forms in which legal entities that are commercial organizations can be created. The Code does not provide options for expanding this list without changing the wording of the above norm and describes in sufficient detail each organizational and legal form. It is the forms in which legal entities that are commercial organizations can be created that are the subject of detailed legal regulation. Hence the traditional use of the term "commercial organization" in the plural. The meaning of this term in the legislation lies rather in reflecting the essential feature (namely, the commercial nature of the activity) of a group of organizations, rather than in characterizing this special type of organization and the systemic definition of its legal status.
The presence in the activities of the main target focus on making a profit underlies the division of organizations into commercial and non-commercial. We emphasize that the generic concept for commercial and non-commercial organizations is the concept of "organization"3, and not "legal entity". So, "legal entities can be organizations that pursue profit as the main goal of their activities (commercial organizations) or do not have profit as such a goal and do not distribute the profits among participants (non-profit organizations)". Indeed, according to scientific doctrine and legal conception, all legal entities are organizations4. At the same time, organizations, according to the criterion of recognition of their legal personality, are divided into organizations with the status of a legal entity and organizations without the status of a legal entity; and according to the criterion of the main target orientation of activity - to commercial organizations and non-commercial ones. Thus, the scope of the concept of "commercial organization" is not limited to the list of forms specified by the legislator, for the simple reason that this concept is not subordinate to the concept of "legal entity". In connection with the foregoing, it seems not entirely successful to reduce the concept of "commercial
3 An organization is a consciously coordinated social entity with defined boundaries that operates on a relatively permanent basis to achieve a common goal or goals. Milner B.Z. Organization theory. M.: Infra-M, 2000. S. 46
4 It should be noted the point of view of S.I. Arkhipov, who considers it possible to apply the form of a legal entity in relation to the first person of the state, the subject of the Russian Federation, municipality, and not only and not so much for civil law purposes, but for general legal, intersectoral ones, and also noting the absence in theoretical terms of obstacles to legislative recognition of an individual entrepreneur as a legal entity. S.I. Arkhipov comes to the conclusion that it is artificial for civil legislation to impose certain forms on persons interested in such legal isolation. See about this: Arkhipov S.I. Subject of law. Theoretical study. SPb.: Publishing house
R. Aslanova "Legal Center Press", 2004. P. 354
organization with the status of a legal entity”, which is at the intersection of the concepts of “legal entity” and “commercial organization”, to the truncated, but legal term “commercial organization”5, within which only registered organizations created in the prescribed legal forms are considered in law.
The category of a commercial organization is not exclusively legal, unlike, for example, a legal entity, and therefore any researcher is free to interpret the understanding of its essence. We propose to consider the concept of a commercial organization in a broad and narrow sense. In the scope of the concept of a commercial organization in a broad sense, not limited to the framework established by the Civil Code, it is proposed to consider all organizations engaged in entrepreneurial activities, with the exception of non-profit organizations proper, which carry out entrepreneurial activities in the manner and under the conditions provided for by law and their constituent documents. In the scope of the concept of a commercial organization in the narrow sense, it is proposed to consider the traditional list of legal forms specified in paragraph 2 of Art. 50 of the Civil Code of the Russian Federation, namely business partnerships and companies, production cooperatives, state and municipal unitary enterprises.
Today, consideration of the legal status of a commercial organization in a broad sense, not limited by the concept of "legal entity" and the provided organizational and legal forms, is of particular interest due to its legal diversity with the concentration of the essential characteristics of the organization as a person engaged in entrepreneurial activity. The content and scope of the concept of a commercial organization in the broad sense are not defined and are subject to thorough comprehensive research, in contrast to this concept in the narrow sense, which involves the study of only its scope, which, in turn, is determined by the boundaries of the concept of "legal entity" and the organizational and legal ones proposed by the legislator. forms.
The content of the concept of a commercial organization in the broad sense, in connection with the proposed expansion of its scope, according to the logical law of inverse relationship between the scope and content of the concept, should “poor” those essential features that are leveled by expanding its scope. However, the provision of paragraph 1 of Art. 50 of the Civil Code of the Russian Federation fully corresponds to the proposed scope of the concept in a broad sense: a commercial organization is an organization that pursues making profit as the main goal of its activities. It seems that it would be correct to define a commercial organization in the narrow sense as an organization created in the organizational and legal form established by law, providing for such an organization to derive profit as the main purpose of its activity, and registered in the manner prescribed by law as a legal entity.
5 One should agree with the position of I.P. Greshnikov, who notes that the formula “classification of legal entities” is an abbreviation of the formula “classification of organizations with the status of a legal entity”. See: Greshnikov I.P. Subjects of civil law. St. Petersburg: Legal Center Press, 2002. P. 168
The current situation, in which the scope of the concept does not coincide with its legal definition, seems unsatisfactory, because. introduces legal uncertainty into the terminology used. Moreover, according to the wording of paragraph 1 of Art. 50 of the Civil Code of the Russian Federation, the distinguished two types of organizations (commercial and non-commercial) “can be” legal entities, which is very similar to such a method of regulation as permission. It should be noted that the logic of the presentation of the above norm assumes that the legislator admits the existence of commercial organizations in law without the status of a legal entity. The problem of the possibility of recognizing legal personality (incomplete, truncated, limited, etc.) for such organizations is relevant to this day, because Legislation fragmentarily and not systematically regulates the peculiarities of the legal status of such organizations.
Multi-subject entrepreneurial formations (referred to in the legal literature as holdings, business associations, etc.), which are nothing more than organizations that are highly integrated and highly commercial, operating as single organization outside the legal forms corresponding to it, due to the banal reason for their absence in law, fall entirely within the scope of the concept of a commercial organization in a broad sense. As for the legal personality of such organizations, with certain reservations and conventions, we consider it possible to consider them as part of business entities, agreeing with such scientists as V.S. Belykh, V.V. Laptev, I.S. Shitka-na, who in their studies, to some extent, note the elements of the legal personality of the above entities6. Such an approach is reasonable and justified when business entities (including commercial organizations in the broad sense) are considered as a complex, intersectoral concept, not limited by civil law.
The civilistic approach to the problem of recognizing an organization as a legal personality, in comparison with less traditional approaches, is associated with the ratio of British English, so impeccable and classic, with American simplified and derived from it. The former is becoming less and less in demand and more and more supplanted by the latter, as more dynamic and practical. With all due respect to the aesthetics of private law, we have to admit that law cannot be for the sake of law, and if in a certain part it does not cope with economic reality and stalls, using outdated forms, it is necessary to look at the problem from a different position, in this case - from positions of supporters of business law. And this view will reveal the following picture to us: organizations of a new type, shackled in the legal forms of legal entities, are legal werewolves, because. the law offers them no other fate in law. Time makes its own adjustments, and there comes a moment when the previously ideal legal constructions no longer reflect the essence of new phenomena, the former legal forms do not correspond to the new economic content.
6 Belykh V.S. Business entities: concept and types // Legal status of business entities. Collection scientific papers. Ekaterinburg: U-Factoriya, 2002. S. 29; Laptev V.V. Shareholder law. M., 1999. S. 127; Shitkina I.S. Holdings. Legal and managerial aspects. M .: LLC "Gorodets-izdat", 2003. P. 23
niyu. Time requires new forms, and it is pointless to resist this demand: when the law is silent, life itself gives birth to these forms, and they are certainly viable, but far from always civilized.
Summarizing the above, one should pay attention to the logical chain of legal regulation of the process of the emergence of a commercial organization as a subject of law, guided by the provisions of Art. 50 of the Civil Code of the Russian Federation:
an organization pursuing profit as the main goal of its activity is a commercial organization;
a commercial organization (as well as a non-commercial one) can be a legal entity;
legal entities may be created in the organizational and legal forms established by law, and commercial ones - in the forms established by the Civil Code.
Without going into the issues of the theory of a legal entity, we consider it correct and justified in establishing the moment of the emergence of a legal entity as a subject of law to proceed not from its creation, but from the emergence as a result of registration of an organization in its chosen organizational and legal form as a legal entity. A legal entity appears as a legal status of an organization as a result of a state act of recognizing it as a subject of law. As for organizations, unlike a legal entity, they are created, and the legitimate creation of organizations is possible only in established organizational and legal forms. The choice of the appropriate form as a model provided for and regulated by law belongs to the organization and underlies the registration of the organization as a legal entity.
Summarizing the above arguments and substantiating the understanding of commercial organizations as persons engaged in entrepreneurial activities, it should be proposed:
To consider as part of the persons engaged in entrepreneurial activity, a circle of persons unlimited today by legal forms, including commercial organizations in the broad sense.
Consider a legal entity as the legal status of an organization, namely the status of a subject of law that arises at the time of its registration in the organizational and legal form established by law.
Consider multi-subject entrepreneurial formations (or otherwise referred to as "holdings", "entrepreneurial associations", etc.) as part of the scope of the concept of "commercial organization" in a broad sense.
To provide in the law organizational and legal forms for such entrepreneurial formations and, guided by the criteria for separating them as a type, to establish distinctive and characteristics and properties of such formations.
With the current volume and content of legal regulation, it must be stated that the forms proposed by the legislator do not cope with the rapidly developing reality and do not reflect the actual features of the content of actually existing commercial organizations, while, on the contrary, they purposefully distort this content, offering the choice of such organizations other ones that do not correspond to the existing ones. the content of the form. In assessing the feasibility of legal
regulation should be based on the unconditional value of clarity, accuracy and clarity in determining the legal status of persons engaged in entrepreneurial activities. This approach is the key to the government-demanded transparency and integrity of business activities in the Russian Federation.
Bibliography:
1. Arkhipov S.I. Subject of law. Theoretical study. St. Petersburg: R. Aslanov Publishing House "Legal Center Press", 2004.
2. Belykh V.S. Business entities: concept and types // Legal status of business entities. Collection of scientific papers. Yekaterinburg: U-Factoria, 2002.
3. Greshnikov I.P. Subjects of civil law. St. Petersburg: Legal Center Press, 2002.
4. Laptev V.V. Shareholder law. M., 1999.
5. Meyer D.I. Russian civil law. M.: Statute. 2001
6. Milner B.Z. Organization theory. M.: Infra-M, 2000.
7. Shitkina I.S. Holdings. Legal and managerial aspects. M.: LLC "Gorodets-izdat", 2003.
8. Yakushev V.S. The Institute of a Legal Entity in Theory, Legislation and Practice // Anthology of the Ural Civil Law. 1925 - 1989. M.: Statute, 2001.
REVIEW
REVIEW
to the article by Jngkasvoy F.Z. "COMMERCIAL ORGANIZATION AS
SUBJECT OF BUSINESS ACTIVITY»
The article is written in a rather up-to-date language this moment a topic affecting the definition of the concept and forms of existence of entrepreneurial activity in the Russian Federation.
In the article, the author concludes that entrepreneurial activity is carried out by a wide range of persons, including business partnerships and companies, production cooperatives, state and municipal unitary enterprises, holdings. affiliates, individual entrepreneurs and even non-profit organizations (under certain conditions). In this regard, it should be noted that the legislator, defining the circle of subjects of entrepreneurial activity, intended to establish by this norm a mandatory condition for them to have the right to carry out this activity as a result of registration of an organization established in the appropriate legal form as a legal entity. At the same time, the concept of "persons engaged in entrepreneurial activities", not limited by the requirement of state registration, includes absolutely all social entities operating in the field of entrepreneurship, and primarily commercial organizations.
To date, consideration of the legal status of a commercial organization in a broad sense, not limited by the concept of "legal entity" and the provided organizational and legal forms, is of particular interest due to its legal diversity with a concentration of the essential characteristics of an organization as a person. carrying out business activities.
The author in the article emphasizes the need to expand the interpretation of a commercial organization, based on the provisions of Art. 50 of the Civil Code of the Russian Federation: a commercial organization is an organization that pursues profit as the main goal of its activities.
The author examines the issue of multi-subject organizations, which in their essence are also commercial, but at the same time are not included in the list established by the legislation of Russia. Based on the results of the study, the author develops proposals for improving the current legislation of the Russian Federation in this area. For the above reasons, the article deserves close attention to a wide audience and can be recommended for publication.
Reviewer: Ph.D.
Introduction
The concept and features of a legal entity
Commercial organization - business entity
Types of commercial organizations and conditions for the implementation of economic activities
Conclusion
List of sources
Introduction
The Constitution of the Russian Federation contains a number of normative provisions, which together constitute the constitutional guarantees of entrepreneurship in modern Russia. The Constitution of the Russian Federation has the highest legal force in the hierarchy of legal acts: laws and other legal acts adopted in Russia must not contradict the Constitution of the Russian Federation. Therefore, the foundations of entrepreneurship legally guaranteed by the Constitution of the Russian Federation cannot be changed or violated by any legal act adopted at the federal, regional, municipal or local level.
On January 1, 1995, part one of the Civil Code of the Russian Federation dated November 30, 1994 was put into effect, which fixed legal status as individual entrepreneurs - individuals, and various kinds collective entrepreneurs - legal entities, defined the concept of entrepreneurial activity and the basic "rules of the game" for participants in civil turnover.
It is important to note that an effectively functioning market economic system is characterized by free economic activity, which implies the economic isolation of market entities, the existence of private property, free access to entrepreneurial activity, an unlimited number of business entities, free competition between them, etc. In other words, free enterprise is the basis of a market economy.
The purpose of this work is to consider the issues of legal regulation of the activities of commercial organizations engaged in economic activities, the definition of the concept and characteristics of a legal entity, commercial organization and organizational and legal forms of economic activity, as well as the conditions for its implementation.
1. The concept and features of a legal entity
According to Article 48 of the Civil Code of the Russian Federation, "a legal entity is an organization that owns, manages or manages separate property and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be plaintiff and defendant in court. Legal entities must have an independent balance or estimate. " What are the essential features of a legal entity that allow us to speak of it as an independent subject of law?
Firstly, property isolation, i.e. the presence on the right of ownership, in economic management or operational management of certain property. The practical expression of such isolation is an independent balance sheet or estimate and a current account, however, legally, it is with the help of these property rights that property must be assigned to a legal entity.
Secondly, independent property liability for its obligations. The basis of this liability is separate property.
Thirdly, the ability of a legal entity to acquire and bear rights and obligations on its own behalf, i.e. act in civil circulation on their own behalf.
Fourthly, the so-called organizational unity, expressed in the fact that a legal entity is an organization that has an independent legal status, separated from the legal status of the participants (founders) that created or included in it. Such isolation of a legal entity is fixed in the constituent and other documents of the organization that determine the procedure for conducting its affairs.
Constituent documents determine the legal status of a legal entity. At the same time, the constituent documents are the documents on the basis of which this organization is established (created and registered) and operates.
Civil Code in paragraph 1 of Art. 52 indicates three types of constituent documents: the charter, the memorandum of association and the general provision on organizations of this type. Legal entities act either on the basis of one of these documents, or on the basis of two documents - the charter and the memorandum of association.
The law establishes that general partnerships (Article 70 of the Civil Code) and limited partnerships (Article 83 of the Civil Code) operate on the basis of the constituent agreement; Limited and additional liability companies (Article 89, 95 of the Civil Code), associations of legal entities (Article 122 of the Civil Code) operate on the basis of the charter and constituent agreement; on the basis of the charter - joint-stock companies (Article 98 of the Civil Code); Limited and additional liability companies created by one person (Art. 89, 95 of the Civil Code), production and consumer cooperatives (Art. 108, 116 of the Civil Code), state and municipal unitary enterprises (Art. 113 of the Civil Code), funds (Art. 118 of the Civil Code ), public organizations(associations), non-profit partnerships, autonomous non-profit organizations, institutions (Art. 14 federal law dated January 12, 1996 N 7-FZ "On non-profit organizations").
When creating a joint-stock company in accordance with Art. 98 of the Civil Code, the founders enter into an agreement on the creation of a company, which is a type of agreement on joint activities(Article 1041 of the Civil Code).
Paragraph 2 of Art. 52 of the Civil Code contains requirements for the content of constituent documents. Such requirements are imperative for all legal entities, regardless of their organizational and legal form. The constituent documents of the organization must include information about the name, location, management bodies of the legal entity. In a relationship certain types legal entities, this list can be specified by the Civil Code and special laws on these organizations (see, for example, paragraph 2 of article 70 of the Civil Code regarding general partnerships, paragraph 3 of article 98 of the Civil Code regarding joint-stock companies). The law does not prohibit the inclusion in the constituent documents of other provisions that are not provided for by the current legislation of Russia, provided that they do not contradict it.
The presence of organizational unity also implies the existence of a certain internal structure of the organization that would meet the goals and objectives of the legal entity and be expressed in the presence of its management bodies.
The property isolation of a legal entity means that the property of the organization must be separated from the property of any other persons, including from its founders (participants).
Paragraph 1 of Art. 48 of the Civil Code indicates that the organization may have such property in ownership, economic management or operational management.
The majority of legal entities own property on the right of ownership (clause 1, article 48, article 216 of the Civil Code). The exception is state and municipal unitary enterprises (Articles 113, 114, 294 of the Civil Code), which have property under the right of economic management; as well as institutions (Art. 120, Art. 296, 298 of the Civil Code) and state-owned enterprises (Art. 115, 296, 297 of the Civil Code), which own property on the basis of the right of operational management.
According to par. 2 p. 1 art. 48 of the Civil Code, a legal entity must have an independent balance sheet (and an institution - also an estimate of its expenses, approved by the owner). The procedure for maintaining a balance sheet is established by the Federal Law of November 21, 1996 N 129-FZ "On Accounting". The property on the balance sheet of the organization characterizes its isolation from the property of the founders (participants).
Independent property liability of the organization lies in the fact that a legal entity is liable for its debts only with the property belonging to it. It follows from this that neither the founder (participant), nor the owner, nor third parties are liable for the obligations of the legal entity, except in cases provided for by the current legislation of the Russian Federation.
Participation in civil circulation on its own behalf means that a legal entity on its own behalf can acquire and exercise property and personal non-property rights and obligations, i.e. act in civil legal relations as an independent subject of law, including as a plaintiff and defendant in court.
To individualize a legal entity and separate it from the class of similar entities, each legal entity has its own name (Article 54 of the Civil Code).
The name of a legal entity is its name, under which it appears in civil circulation. The name of the organization is indicated in its constituent documents and must include an indication of its organizational and legal form (see, for example, paragraph 3 of article 69, paragraph 4 of article 82, paragraph 2 of article 96, paragraph 4 of article 118, paragraph 5 of article 121 of the Civil Code).
The name of a legal entity consists of two parts - the actual name (name) and an indication of the organizational and legal form of the legal entity. In legal literature, especially pre-revolutionary, the designation of the organizational and legal form of a legal entity was considered a corpus of the name, and the actual name (name) of the legal entity was considered an addition.
When registering a commercial organization as a legal entity, its name becomes a company name (clause 4, article 54 of the Civil Code). A trade name, along with a trademark and a service mark, is subject to intellectual property(Article 138 of the Civil Code).
In addition to the name and business reputation each legal entity must have its own location.
In accordance with paragraph 2 of Art. 54 of the Civil Code, the location of a legal entity is determined by the place of its state registration.
2. Commercial organization - economic entity
Before considering the issue of legal regulation of the status of commercial organizations, first of all, it is necessary to define the term "commercial organization" itself.
The Civil Code of the Russian Federation indicates that all legal entities can only be created in the organizational and legal form that is provided for by law and, depending on the main purpose of the activity (Article 50 of the Civil Code of the Russian Federation), legal entities are divided into commercial and non-commercial.
The main purpose of the activity of a commercial organization is to make a profit and the possibility of its distribution among the participants. A non-profit organization is an organization that does not have profit making as the main goal of its activities and does not distribute the profits received among the participants (clause 1, article 2 of the Federal Law of January 12, 1996 N 7-FZ "On Non-Profit Organizations").
The classification of legal entities into commercial and non-commercial makes it possible to identify all types of legal entities, determine (allocate) the legal status of their specific groups and distinguish between organizations with different types of legal personality, provide for their organizational and legal forms and thereby exclude the possibility of creating organizations not enshrined in law. At the same time, it should be recognized that such a division of legal entities is a fundamental step that is of paramount importance in the systematization of all legal entities as participants in civil legal relations.
There is no concept in Russian civil law commercial activities organization, instead of it the Civil Code of the Russian Federation uses the term "entrepreneurial activity". In accordance with Article 2 of the Civil Code of the Russian Federation, entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at systematic profit. Thus, the extraction of profit as the main goal is the most important feature of commercial activity. In other words, if an organization is created with the aim of making a profit, then, without a doubt, it is recognized by civil law as commercial. A similar approach is followed by tax legislation.
Legal science has developed a special meaning of the concept of "organization", reflecting the specifics of legal structures and mechanisms. So, a legal entity is an organization that has a number of features specified in Article 48 of the Civil Code of the Russian Federation. This approach, which was formed in civil law long before the adoption of the current Civil Code, gives grounds to assert that, firstly, the concept of "organization" is broader than the concept of "legal entity", and secondly, an organization is understood as a collective entity with organizational unity. In other words, a legal entity and an organization are related as private and general. It follows from this that any legal entity is always an organization, but not every organization is a legal entity.
In the economic literature, contrary to the Civil Code of the Russian Federation, business entities are called enterprises. The term "enterprise" is used as a synonym for all commercial organizations. In the Civil Code of the Russian Federation, this term is used exclusively in the name of state and municipal unitary enterprises. Article 132 of the Civil Code of the Russian Federation defines an enterprise as a property complex recognized as real estate, which is an object of civil rights.
Both before and after the adoption of the new Civil Code of the Russian Federation, in regulations a new definition of business entities has appeared and is currently being used - "economic entity". So, in Art. 4 of the Law of the RSFSR "On Enterprises and Entrepreneurial Activity", the following definition was given: "An enterprise is an independent economic entity established in the manner prescribed by this Law to produce products, perform work and provide services in order to meet public needs and make a profit." After the adoption of the Civil Code of the Russian Federation, the term "economic entity" began to be used in other regulatory legal acts(Article 3 of the Federal Law of the Russian Federation "On Natural Monopolies", Article 1 of the Federal Law "On Measures to Protect the Economic Interests of the Russian Federation in Foreign Trade in Goods"). An analysis of the content of these laws indicates that the term "economic entity" is used in them to refer to legal entities - subjects of entrepreneurial activity. An analysis of the content of these laws indicates that the term "economic entity" is used in them to refer to legal entities - subjects of entrepreneurial activity.
It is important to note that the majority of legal entities - business entities are the owners of the property assigned to them. We can agree with the authors who believe that this is not a mandatory feature for non-profit organizations. But for commercial organizations it is required. Thus, the term "economic entities" is applicable only to organizations - commercial legal entities and citizens-entrepreneurs, although the range of entities with the right to carry out entrepreneurial activities is wider, they also include non-profit organizations - legal entities.
3. Types of commercial organizations and conditions for the implementation of economic activities
In paragraph 2 of Art. 50 of the Civil Code contains an exhaustive list of commercial organizations. These include:
) business partnership:
a) full partnership (Article 69 of the Civil Code);
b) limited partnership (limited partnership) (Article 82 of the Civil Code);
) economical society:
a) a limited liability company (Article 87 of the Civil Code, Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies");
b) a company with additional liability (Article 95 of the Civil Code);
c) a joint stock company (Article 96 of the Civil Code, Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies");
) production cooperative (clause 1, article 107 of the Civil Code, Federal Law of May 8, 1996 N 41-FZ "On production cooperatives");
) state (municipal) unitary enterprise (Article 113 of the Civil Code, Federal Law of November 14, 2002 N 161-FZ "On State and Municipal unitary enterprises").
So, in accordance with the law, a general partnership is recognized as an organization whose participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and are liable for the obligations of the general partnership with all their property.
Participants in a limited partnership (limited partnership), as well as participants in a general partnership, are liable for obligations with all their property. A limited partnership differs from a general partnership in that a limited partnership may include one or more investors who do not carry out entrepreneurial activities and bear the risk of losses associated with the activities of the partnership, within the limits of their contributions.
A limited liability company is a company whose founder is one or more persons, which has an authorized capital divided into shares. Members of a limited liability company are not liable for the obligations of the company created by them, but only bear the risk of losses within the limits of their contributions. Most often, persons wishing to create a legal entity for the purpose of carrying out commercial activities create limited liability companies. First of all, this choice is influenced by the fact that this organizational and legal form excludes the personal property liability of the participants in the company, i.e. the obligations of a limited liability company are the responsibility of the company itself, and not its members.
An additional liability company, like a limited liability company, has an authorized capital divided into shares in accordance with the constituent documents, but the participants in an additional liability company bear joint and several subsidiary liability for the obligations of such a company. The imposition of joint and several liability on the participants of a company with additional liability means that the participants of the company are liable for the obligations of their company jointly, in the same multiple size for all. The concept of "subsidiary liability" is disclosed in the Civil Code of the Russian Federation (Article 399) as additional to the liability of the main debtor. As part of the liability for the obligations of a company with additional liability, this means that in cases where claims for the performance of obligations are presented to one of the participants in the company (the main debtor), if the property of the main debtor is insufficient to pay off the claims made or the debtor refuses, these claims can be presented to other participants of the company with additional liability.
A joint stock company is a company whose authorized capital is divided into certain number shares. Persons who are members of a joint-stock company are not liable for the obligations of the joint-stock company, and they bear the risk of losses associated with the activities of the joint-stock company only to the extent of the value of their shares.
In open joint-stock companies, participants have the right to alienate, i.e. sell, donate, transfer in any other way their shares at their own discretion, as well as conduct open subscriptions for shares issued by the joint-stock company.
In a closed joint-stock company, unlike an open one, shares are distributed exclusively among its founders or other predetermined circle of persons. The sale of shares of a closed joint stock company to an unlimited circle of persons is prohibited and is not carried out, and when selling individual blocks of shares, the shareholders of a closed joint stock company have the right of first refusal. In other words, if among the shareholders of a closed joint stock company there are persons who agree to purchase a block of shares on the proposed terms, the seller of shares is not entitled to sell them to persons who are not shareholders of a closed joint stock company.
A subsidiary business company is an organization in the form of a business company or partnership, in respect of which another business company or partnership, referred to as the main one, has the ability to predetermine its decisions. Such a possibility may be provided for in the contract of the parent and dependent companies. If a business company has more than 20% of the voting shares or charter capital of another company, the second company is recognized as a dependent company.
The Civil Code of the Russian Federation includes commercial organizations with the following characteristics among production cooperatives:
production cooperatives are a voluntary association of citizens on the basis of membership, which can be expressed in personal labor and other participation in the activities of the cooperative or in the contribution in the form of property shares in the property of the cooperative;
A production cooperative is recognized only as a voluntary association of citizens, which aims at production or other economic activities, including activities for the provision of services.
State and municipal unitary enterprises are commercial organizations that do not have ownership of the property assigned to them. The property of unitary enterprises is owned by the state or municipality, respectively, which act through their bodies authorized in the field of property management (relevant property management committees, etc.).
Non-profit organizations can exist in the forms consumer cooperatives, foundations, public and religious organizations, associations, unions, institutions, etc. common feature of all listed organizations is that they are not entitled to set profit making as one of their main goals. Non-profit organizations have the right to carry out economic or other paid activities only if the income from this activity is directed to the needs of the organization, and this is expressly provided for by the charter of the non-profit organization.
an application for state registration signed by the applicant in the form approved by Decree of the Government of the Russian Federation of June 19, 2002 N 439 (as amended by February 6, N 68 and October 16, 2003 N 630). In this application, the head of the organization confirms the compliance of the documents submitted for registration with the requirements of the law, the accuracy of the information contained in them and compliance with the procedure for their establishment established for legal entities of this organizational and legal form;
a decision to establish a legal entity (which can be drawn up in the form of a protocol, agreement or other document that meets the requirements of the law);
constituent documents of a legal entity (originals or notarized copies);
document confirming the payment of the state fee;
if one of the founders is a foreign legal entity, it is also necessary to submit an extract from the register of foreign legal entities of the respective country of origin or other proof of its legal status as a foreign legal entity that is equal in legal force.
Thus, in the very process of creating a legal entity, at least two stages can be distinguished - preparatory and state registration. And the most important of them is the first stage. This is explained by the fact that in the documents submitted for registration, on the basis of which an entry will then be made in the Unified State Register of Legal Entities, the applicant confirms that he complies with the established procedure for creating a legal entity, the requirements for the form and content of constituent documents. And if the provisions of the law are violated, then not only administrative (Article 14.25 of the Code of Administrative Offenses of the Russian Federation), but also criminal (Article 171 of the Criminal Code of the Russian Federation) liability may arise.
For state registration of a newly created legal entity, it is necessary to submit the constituent documents that are the legal basis for the activities of the legal entity: the charter and the memorandum of association. Depending on the organizational and legal form of the legal entity being created, the founders submit either only the charter, or only the constituent agreement, or the charter and the constituent agreement during state registration. In exceptional cases, when it is expressly provided for by law, a non-profit organization may carry out its activities on the basis of general position about organizations of this type. As a rule, business partnerships carry out their activities on the basis of one memorandum of association, business companies- on the basis of the founding agreement and the charter, production cooperatives and non-profit organizations - on the basis of the charter.
The charter of a legal entity is the fundamental document of a legal entity containing information about the legal entity, provisions on the rights and obligations of participants and other fundamental information. The requirements imposed by the legislation on the charter of a legal entity depend on its organizational and legal form and are specified in separate regulatory legal acts. For example, the requirements for the charter of a limited liability company are contained in Art. 12 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies", the requirements for the charters of joint-stock companies - in Art. 11 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies".
The memorandum of association is a document in which the founders undertake to create a legal entity, determine the procedure for joint activities to create a legal entity, the procedure for transferring their property to a legal entity and participating in its activities, as well as the conditions and procedure for distributing profits, managing the activities of a legal entity and exiting participants from its composition.
State registration of a legal entity is carried out by the bodies of the Federal tax service RF at the location of the legal entity within 5 working days. In this case, the location is considered to be the location of permanently operating executive bodies legal entity specified in the application.
The law provides only two grounds on which registration of a newly created legal entity may be refused:
non-submission of the documents specified by the legislation, necessary for the state registration of a legal entity;
submission of documents to the wrong registration authority.
Refusal to register a newly created legal entity on other grounds is prohibited. The decision to refuse state registration is made within 5 days from the date of submission of documents. Denial of state registration, as well as evasion of it, can be appealed in court.
Article 17 of the Federal Law of August 8, 2001 N 128-FZ "On Licensing Certain Types of Activities" establishes a list of types of activities for which licenses are required. A license is a special permit issued by authorized state bodies to carry out certain types of activities.
According to Art. 14.1. Code of the Russian Federation on administrative offenses No. 195-FZ of December 30, 2001 Carrying out entrepreneurial activities without state registration as an individual entrepreneur or without state registration as a legal entity - shall entail the imposition of an administrative fine in the amount of five to twenty minimum dimensions wages.
Carrying out entrepreneurial activities without a special permit (license), if such a permit (such a license) is mandatory (mandatory), - without one; on officials - from forty to fifty times the minimum wage with or without confiscation of manufactured products, tools of production and raw materials; on legal entities - from four hundred to five hundred times the minimum wage with or without confiscation of manufactured products, tools of production and raw materials.
legal regulation commercial economic
Conclusion
In conclusion, it should be noted that at present state regulation of entrepreneurial activity is expressed in the regulation of the production of products (works) and the provision of services by establishing certain rules (norms) that business entities should be guided by, and in monitoring compliance with these rules.
At the same time, in state regulation business activity, a significant role is played by administrative and legal regimes: licensing, accreditation, registration, permits, quotas, etc. In order for the established rules (norms) to be implemented by business entities, state system created specially authorized bodies that not only participate in licensing procedures, but also support the relevant administrative and legal regimes by various means.
These authorized bodies, as a rule, also exercise state control over economic entities that have various permits to carry out certain types of activities, and have the right to hold accountable for violation of the established procedure (norms) or violations of licensing procedures.
Thus, entrepreneurial activity carried out by commercial organizations is not unlimited. On the one hand, the totality of the opportunities provided to the specified subject makes it possible to fully realize the entrepreneurial potential, and on the other hand, the state is forced to establish certain limits for its implementation in order to respect the rights and legitimate interests of other participants in public relations.
One of the main conditions for the implementation of entrepreneurial activity is its legitimacy, i.e. state confirmation of the legality of the entry of subjects into economic circulation.
List of sources
Constitution of the Russian Federation. - M.: "Velby", 2006. - 50 p.
Civil Code of the Russian Federation. - M.: Eksmo, 2006. - 544 p.
Code of the Russian Federation on Administrative Offenses of December 30, 2001 N 195-FZ // Collection of Legislation of the Russian Federation of January 7, 2002 N 1 (Part I) Art. 1.
Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises" // Collection of Legislation of the Russian Federation of December 2, 2002 N 48 Art. 4746
Federal Law of August 8, 2001 N 129-FZ On State Registration of Legal Entities and Individual Entrepreneurs" // Russian newspaper dated August 10, 2001 N 153
Federal Law of August 8, 2001 N 128-FZ "On Licensing Certain Types of Activities" // Collection of Legislation of the Russian Federation of August 13, 2001 N 33 (Part I) Art. 3430
Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" //Collected Legislation of the Russian Federation of February 16, 1998, N 7, art. 785
Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" // Collection of Legislation of the Russian Federation of January 1, 1996 N 1 Art. 1
Federal Law of May 8, 1996 N 41-FZ "On Production Cooperatives" // Collection of Legislation of the Russian Federation of May 13, 1996 N 20 Art. 2321
Federal Law of November 21, 1996 N 129-FZ "On Accounting" // Collection of Legislation of the Russian Federation, 1996, N 48, Art. 5369
Federal Law of January 12, 1996 N 7-FZ "On non-profit organizations" // Collection of Legislation of the Russian Federation, 1996, N 3, art. 145
Petrykin A.A. Commercial organization as a subject of tax law // Legislation. - No. 2. - 2005.
Stepanov A.G. General issues of economic activity of a legal entity // Law and Economics. - No. 10. - 2004.
Gros L.A. On the question of the relationship between concepts: legal entities, commercial organizations, business entities, business entities // Economic justice on Far East Russia, N 3, September-December 2004
Zykova I.V. Legal regulation of the formation of commercial organizations // Lawyer. - No. 11. - 2004.
Greshnikov I.P. Subjects of civil law: legal entity in law and legislation. SPb., 2002.
Civil law of Russia. a common part: A course of lectures (responsible editor - O.N. Sadikov). - M. Jurist, 2001.
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