Ed. A.V. Sidorovich
Section II. ENTREPRENEURSHIP AND INDIVIDUAL REPRODUCTION
Chapter 43
Collective entrepreneurship
Collective entrepreneurship is a form of entrepreneurship in which labor participation is the source of entrepreneurial powers, and employees have a decisive influence on decision-making. It is this feature that distinguishes collective entrepreneurship from private entrepreneurship realized in a group form.
Acting on the basis general principles entrepreneurship, this form has significant features. First, there is no division of workers into participants in the entrepreneurial process and those who are excluded from it.
Secondly, the determining factor in the distribution of the results of entrepreneurial activity is not property, but labor contribution. Thirdly, while maintaining a cooperative form of labor, collective entrepreneurship excludes exploitation.
Although the receipt of income remains one of the motivational features of the collective form of entrepreneurship, the most important for this form is the preservation of the economic stability of the production unit as a condition for ensuring the employment of workers. Strengthening its competitiveness is associated with the action of two determining factors. Firstly, it is the democratization of the entrepreneurial process through the involvement of all employees in it, which contributes to an increase in the effectiveness of the entrepreneurial function. Secondly, this is a change in the cost structure, which does not include payment for an entrepreneurial resource, since the implementation of an entrepreneurial function in a collective form is part of the overall labor activity team members. As a result, this form is competitive advantage by costs.
Meanwhile, operating in a market environment, collective entrepreneurship cannot ignore the criteria that determine the viability of business entities, such as the level of profitability. This causes internal inconsistency and weakens the possibilities of this form of entrepreneurship. Considering this circumstance, as well as the social role, which she plays, many countries implement programs to support collective entrepreneurship.
The forms of implementation of collective entrepreneurship currently include a production cooperative and a collective enterprise.
Plan
Introduction
Collective entrepreneurship
Joint-stock company
Joint stock company management
Partnerships
Society with limited liability
Conclusion
Bibliography
Introduction
Collective entrepreneurship
At the end of the XX century. collective forms of entrepreneurship have taken a dominant position - both in small and large-scale business.
Despite the difference in state legislation, world practice indicates the presence of the following well-established collective forms of business activity: business partnerships; business companies; joint-stock companies; associations, unions.
The legal name of these forms of collective enterprise in individual countries may change over time, but their organizational forms and economic content basically preserved, improved and remained almost unchanged for decades.
Reconstruction in the form of organization of the enterprise inherent in it practical activities elements is intended to ensure the very economic activity legal basis. In other words, the individual actions of the enterprise are combined into a single model. This is especially true for joint-stock production and economic structures, since it is this form of enterprise that most clearly divides activities into levels, and at the same time reflects these levels in the corporatization elements. Thus, the conditions for researching the activities of the enterprise are created both according to production data and according to the price of shares and other shareholder information.
Joint-stock company
Joint stock company (JSC) - a form of enterprise, the funds of which are formed by pooling capital, issuing and placing shares. The difference between a limited liability company (000) and a joint-stock company lies mainly in the fact that in the first case people (entrepreneurs) come together to work together, and in the second case they combine primarily capital for its joint use. In both cases, the participants in the company are liable for the results of its activities, limited by their contributions.
A JSC is created on the basis of a voluntary agreement between legal entities and individuals (including foreign ones), who pool their capital and aim to make a profit by satisfying public needs with their products.
Joint-stock company:
Is a legal entity;
Bears property liability to creditors; has property that is completely separate from the property of individual shareholders;
Owns cash share capital, divided into parts (shares). Joint stock companies have the following advantages:
The ability to attract additional investment by issuing shares;
The liability of the shareholder partners is limited to the value of the shares in the general economic interest;
Entrepreneurial risk is reduced;
The transfer of capital funds from industry to industry is facilitated.
A joint-stock company usually functions indefinitely, unless otherwise provided by its charter. The transfer of a share of ownership is carried out through the sale of shares (sometimes a different procedure may be indicated in the constituent documents). The appearance of additional owners of shares is stipulated by the charter.
The management function of the joint-stock company is performed by the board, which jointly chooses executive bodies: director, his deputies, chief accountant, etc.
The authorized capital of a JSC is a certain amount of money, consisting of contributions from shareholders. The size of the authorized capital is determined by the founders of the company based on the need for cash and other funds to start its activities. JSC is liable to creditors not only for the amount of authorized capital, but also for the value of all property.
The authorized capital at the time of the establishment of the company must consist of the agreed number of shares, a multiple of 10, with the same nominal value. Usually, the lower limit of the authorized capital is set, which, for example, in Russia in the mid-90s. could not be less than 100 million rubles (in the prices of the corresponding years).
The contribution of a joint-stock company participant can be cash in rubles and foreign currency, as well as buildings, structures, equipment and other material values, securities, including inventions, patents, rights to use land, water and other material resources. The value of the property is determined by the general meeting of participants.
The company also creates a reserve fund, which must be at least 15% of the authorized capital. The formation of the reserve fund is carried out by annual deductions until the fund reaches the amount specified in the constituent documents. The amount of annual deductions, as a rule, cannot be less than 5% of the amount of net profit.
The property of a joint-stock company may exceed the authorized capital or be equal to it. Legislative norms often provide for the need to exceed the value of property over the authorized capital (otherwise, the distribution of profits among shareholders may be limited). If a JSC in a given year suffered financial losses that led to a decrease in the size of its property, then in the next year it is necessary to use part of the profits of the JSC to achieve the ratio specified in the charter.
The authorized capital of a joint-stock company is formed through a public subscription for shares or by distribution of shares among the founders.
In the first case, an open AO is formed, in the second case, a closed one. Stock open society may be transferred from one person to another without the consent of other shareholders. Shares of a closed joint stock company are distributed among its participants. Currently, the second option is the most widely used. The transfer of shares of members of a closed type JSC to another person is carried out only with the consent of other members of the company.
In the organization of entrepreneurial activity, a special place belongs to partnerships - collective entities that carry out business operations. These include limited and unlimited liability companies, limited and joint-stock companies, and some others. Each form of business involves a certain structure of interaction between partners and the size of the enterprise.
The activities of collective forms of entrepreneurship are regulated by the following regulations: Civil Code of the Russian Federation, Federal Law of the Russian Federation of December 26, 1995 No. 208-FZ “On joint-stock companies Oh"; Federal Law of the Russian Federation dated 08.02.98. No. 14-FZ "On Limited Liability Companies"; Federal Law of the Russian Federation dated 19.07.98. No. 115-FZ "On the peculiarities of the legal status of joint-stock companies of workers (people's enterprises)".
Partnerships and societies
Business partnerships and companies are recognized as commercial organizations with an authorized capital divided into contributions of participants, which, as their main goal, pursue profit-making through the implementation of any types of activities not prohibited by law.
Members of companies and partnerships have the right to receive information about the activities of these organizations and are obliged to make contributions to the authorized capital and non-disclosure of information constituting a commercial secret (part 2 of article 67 of the Civil Code of the Russian Federation).
The main difference between companies and partnerships is that the former represent an association of capital, i.e. the participation of the founders is expressed primarily in property contributions and, optionally, in personal labor, and the latter are an association of persons, because founders, as a rule, not only participate in the activities of the partnership with their property, but are also directly involved in entrepreneurship.
Another significant difference is that participants in companies bear only the risk of losses within the limits of their contribution to the authorized capital, and participants in partnerships bear limited liability for debts within the limits of their entire property (this rule does not apply to investors in limited partnerships).
Finally, a business company, unlike partnerships, can be created by one founder, who becomes its sole participant.
Property created at the expense of contributions of participants, as well as produced and acquired by a business partnership or company in the course of its activity, belongs to it on the basis of ownership rights.
State bodies and local self-government bodies are not entitled to act as participants business companies and contributors in limited partnerships, unless otherwise provided by law.
Institutions financed by owners may be participants in economic companies and investors in partnerships with the permission of the owner, unless otherwise provided by law.
The law may prohibit or restrict the participation of certain categories of citizens in business partnerships or companies, with the exception of open joint-stock companies.
Business partnerships and companies may be founders (participants) of other business partnerships and companies, with the exception of cases provided for by the Civil Code of the Russian Federation and other laws.
A contribution to the property of a business partnership or company may be money, securities, other things or property rights or other rights having a monetary value.
Business partnerships, as well as limited liability and additional liability companies are not entitled to issue shares.
According to the Civil Code of the Russian Federation, business partnerships are divided into general partnerships and limited partnerships.
General partnerships
Complete a partnership is recognized, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property.
The business name of a general partnership must contain either the names (names) of all its participants and the words “general partnership”, or the name (name) of one or more participants with the addition of the word “and the company” or “general partnership”.
A general partnership is created and operates on the basis of a constituent agreement, which must be signed by all its participants. The management of the activities of a general partnership is carried out by common agreement of all participants. The founding agreement of a partnership may provide for cases where the decision is taken by a majority vote of the participants. Each participant in a general partnership has one vote, unless the memorandum of association provides for a different procedure for determining the number of votes of its participants.
Profits and losses of a full partnership are distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the founding or other agreement of the participants.
An agreement on the elimination of any of the participants in the partnership from participation in profits or losses is not allowed.
Features of a general partnership:
- v Entrepreneurial activity its participants is recognized as the activity of the partnership itself as legal entity.
- v If the property of the partnership is insufficient to pay off its debts, creditors have the right to demand satisfaction from the personal property of any of the participants (or all together). Therefore, the activity of the partnership is based on the personal trusting relationships of all its participants, the loss or change of which entails the termination of the partnership. Commercial practice shows that such partnerships often become a form of family business.
- v Any of the participants in a general partnership is engaged in business activities on behalf of the partnership as a whole, therefore, for the creation and functioning of a general partnership, a charter establishing the competence of its bodies is not required. The only founding document commercial organization serves as a memorandum of association.
Faith partnership
(limited partnership)
A limited partnership is a type of general partnership and is characterized by the following features.
- v A limited partnership consists of two groups of participants - general partners and contributors. General partners carry out entrepreneurial activities on behalf of the partnership itself and bear unlimited and joint and several liability for obligatory partnerships. Another group of participants - contributors (commanders) - only make contributions to the property of the partnership, but do not answer with their personal property for its obligations. Thus, in a limited partnership, it is allowed to use the capital of third parties (contributors), i.e. it becomes possible to raise additional funds not at the expense of the property of general partners, which is their advantage over general partnerships.
- v The inclusion of the name of the contributor in the business name of a partnership on faith automatically leads to its transformation into a general partner, primarily in the sense of unlimited and joint and several liability with its personal property for the debts of the partnership.
- v The law specifically regulates legal status contributor in a limited partnership. The investor does not have the right to participate in the management of the affairs of the limited partnership and act on its behalf, but they have the right to get acquainted with financial activities partnerships.
- v Contributors to a limited partnership have three property rights associated with their contribution to the property of the partnership: the right to receive their share of the profits of the partnership; contributors retain the opportunity to freely withdraw from the partnership with the receipt of their contribution; the contributor may transfer his share or part of it both to another contributor and to a third party, without the consent of the partnership or general partners being required.
- v In case of liquidation of a limited partnership, investors have a priority right over general partners to receive their contributions or their cash equivalent from the property of the partnership after satisfying the claims of other creditors.
Benefits of a general partnership:
- v Ability to accumulate significant funds in a relatively short time frame.
- v Each member of a general partnership has the right to engage in business activities on behalf of the partnership on an equal basis with others.
- v General partnerships are more attractive to creditors because their members bear unlimited liability for the obligations of the partnership.
Disadvantages: there must be special trusting relationships between full comrades, otherwise this organization may quickly disintegrate; each member of a general partnership bears full and joint and several unlimited liability for obligations, i.e. in the event of bankruptcy, each member is liable not only with a contribution, but also with personal property.
General partnerships based on faith have the same advantages and disadvantages as general partnerships. Their additional advantage is that in order to increase their capital they can attract funds from investors, general partnerships do not have such an opportunity.
Limited liability companies
Limited Liability Company (LLC) a company founded by one or more persons is recognized, the authorized capital of which is divided into shares of the sizes determined by the constituent documents. Members of a limited liability company are not liable for its obligations and do not bear the risk of losses associated with the activities of the company, to the extent of the value of their contributions.
The business name of a limited liability company must contain the name of the company and the words "limited liability". The number of participants in a limited liability company must not exceed the limit established by the law on a limited liability company.
The founding documents of an LLC are the constituent agreement signed by its founders and the charter approved by them. If a company is founded by one person, its founding document is the charter.
The authorized capital of an LLC is made up of the value of the contributions of its participants and determines minimum size property of the company that guarantees the interests of its creditors. The amount of the authorized capital of a company cannot be less than the amount determined by the law on a limited liability company.
The supreme body of the LLC is general meeting its members. A company may be voluntarily liquidated or reorganized into a specialized company or a production cooperative by unanimous decision of its members.
A limited liability company has the following features:
- v Is a kind of pooling of capital that does not require the mandatory personal participation of its members in the affairs of the company;
- v Division of the authorized capital of the company into shares of participants and the absence of liability of the latter for the debts of the company;
- v The law provides for higher requirements for the authorized capital, its definition and formation than for share capital partnerships. First of all, the amount of this capital under no circumstances can be less than the minimum amount determined by law.
The advantages of an LLC are as follows:
- v Ability to quickly accumulate significant funds;
- v LLC can be created by one person;
- v The members of the society have limited liability for the obligations of the society.
Disadvantages: the authorized capital cannot be less than the amount established by law; LLCs are less attractive to creditors because members of the company are liable only limited liability for the obligations of the company.
Additional Liability Company
Additional Liability Company (ALC) in essence, it is a kind of limited liability company with the extension to it of all general rules such a society. Therefore, everything that has been said about an LLC applies equally to a company with additional liability.
The only important difference between these companies is that if the property of a company with additional liability is insufficient to satisfy the claims of its creditors, the participants in the company can be held liable, and jointly and severally. However, the amount of this liability is limited, it does not concern all of their personal property, which is typical for general partnerships, but only part of it - however, for all multiples of the size and amount of contributions made (for example, three times, etc.). From this point of view, such a society occupies an intermediate place between societies and partnerships.
ALCs have the same advantages and disadvantages as an LLC. Their additional advantage is that they are more attractive to creditors, because bear additional personal responsibility for the obligations of society, but at the same time this is also their disadvantage.
The collective type of doing business implies its conduct by several persons jointly. Individual entrepreneurs, as the name implies, act independently, make decisions and carry out activities at their own peril and risk. The sole proprietor bears responsibility for personal property, which he owns by right of ownership. Collective entrepreneurship implies common property, the contribution of each of the members of his share in general business. Accordingly, the obligation implies a shared responsibility for their implementation.
Collective entrepreneurs
Collective and individual entrepreneurs perform the same functions in the process of managing. But, there are still some differences. Collective business entities include:
- Economic companies and partnerships. They can carry out the same business as individual entrepreneurs, namely: organize insurance companies, act as intermediaries, produce and sell products, and so on. According to the definition of the Civil Code, the contributions of each of the founders form joint property, that is, the authorized capital. Materials, products, both finished and manufactured, belong to the entire composition of the members of society.
- A production cooperative can also be attributed to collective entrepreneurship. The number of participants must be more than five people. The main composition of the cooperative is an individual entrepreneur, that is, an individual, however, it is also permissible for legal entities to participate in the cooperative. Participants make a share contribution - cash, securities, property rights and the property itself. Members may take a personal part in the functioning of the cooperative, or may be in its composition without carrying out labor activities within the framework of this cooperative. The number of the latter persons should not be more than 25% of the total composition of the entire cooperative. The assets of the cooperative are represented by contributions from its members. A cooperative, like legal entities, has a charter. If the cooperative has more than 10 members, it is possible to choose a board, and if more than 50, a supervisory board.
- A holding is an actual association of several enterprises, the shares of which must contain securities of several legal entities. On the territory of the Russian Federation, under the name of the holding, mainly CJSCs are created, and the holding itself may not be an independent company, but a subsidiary of another holding. Enterprises are also united into trusts, syndicates, cartels, consortiums and conglomerates. All these societies are based on the pooling of property - capitals, valuable papers and other - temporary or permanent.
The most common form of business in collective entrepreneurship is management. Such societies are the most convenient in terms of registration, adaptation to constantly changing market conditions, and liability for obligations by its members is not excessive.
Individual entrepreneurship
Collective and individual entrepreneurs carry out their activities after mandatory registration. This procedure is carried out by the authorities of the Federal Tax Service. An applicant for IP status submits an application, personal documents and pays a state fee. After receiving a certificate of registration, it is necessary to register with the Pension Fund, and if the entrepreneur plans to hire personnel - with the FSS, the Compulsory Medical Insurance Fund. An individual entrepreneur can also voluntarily pay contributions to the FSS for himself. Choosing the type of future business, the IP indicates OKVED codes, thereby determining the direction of its economic activity. However, some types of business require the acquisition of a license or permission to operate them. Information about the IP is entered into the USRIP. Registration of collective entrepreneurial societies also takes place in the tax structure. Information about legal entities that are part of the subjects of collective entrepreneurship is entered into the Unified State Register of Legal Entities.
It must be remembered that individual entrepreneur bears much greater responsibility in comparison with the collective form of doing business. The personal property of an individual entrepreneur acts as an object of repayment of the obligations that have arisen, while collective entrepreneurs share this responsibility among themselves. Also, for some entrepreneurs, especially newbies, it can be quite difficult to make business decisions alone. Discussion of important points at a meeting of members of a collective society makes their adoption more efficient and rational.
Considered at the end of the previous paragraph, such organizational and legal forms of entrepreneurship as an autonomous non-profit organization and a foundation are still much more often used as a tool not for private entrepreneurship, but for collective entrepreneurship.
Collective entrepreneurship usually includes a set of organizational and legal forms
entrepreneurial activities, the participants of which bear unlimited joint and several liability for the obligations of the entrepreneurial firm with all their property. In our opinion, modern practice entrepreneurial activity provides data for highlighting five types of collective enterprise , namely the collective
entrepreneurship based on outwardly no-man's property, which we call collectively indeterminate
Collective entrepreneurship based on no one's property, in turn, breaks down into three kinds .
property, collective entrepreneurship based on associative property, which under certain circumstances easily turns into no one's property, as well as collective entrepreneurship based on cooperative, conditionally shared and group (joint) ownership.
First of which is based on the use of implicit proprietary powers by the founders of a legal entity, second - on the use of implicit proprietary powers by managers and employees of entrepreneurial firms. The emergence of these types of collective
Entrepreneurship does not follow from the current legislation, it is entirely due to the peculiarities of the constituent documents of registered business entities, on the property of which the founders do not have property or liability rights. These, as we already know, are non-profit organizations.
AND fund , and autonomous non-profit organization can be considered as a collective enterprise tool in cases where their founders include at least two individuals. None of them, as we understand it, is the owner of the property of the fund or ANO and does not participate in the distribution of profits and losses of a business entity. The profit of these legal entities, by law, is not subject to distribution among the founders and, as a rule, is not formed at all due to the non-commercial nature business activities these subjects, and the founders are not liable for the obligations of the organization created by them. However, without possessing proprietary powers explicitly, these organizational and legal forms can exercise them implicitly, using the same levers of influence as their probable sole founder.
Thus, the founders of an autonomous non-profit organization form a team to create a firm of a non-profit entrepreneurial business entity, and after state registration in accordance with the established procedure, they assign to their team any rights regarding the management of this legal entity, the appointment and dismissal of key managers, control and supervision over the activities of the company.
These rights can be so significant that the founders will be able to manage no one's property implicitly. This will happen if the founders - individuals, or the owners (or managers) of the founders - legal entities appoint themselves to the main leadership positions in an ANO or a foundation, assign extraordinary powers to the meeting of founders in terms of making key decisions on the development of the company and monitoring their implementation, including the systematic conduct of internal audits.
These rights, on the other hand, may be quite insignificant. In such cases, the founders voluntarily transfer the exercise of the above powers to managers and other employees of the business entity, in fact, collectively refusing to participate in the affairs of the company, agreeing to its autonomy. If this is the case, instead of the collective of founders, the collective of employees of the entrepreneurial firm begins to manage the no one's property, also in an implicit form.
Like the founders of a foundation or ANO, the employees of these non-profit organizations do not have any obligations or property rights in relation to the property of these organizations. Employees of the fund or ANO have the opportunity to form the workforce of the organization and, if this does not contradict the charter of the organization, in fact, independently start the implementation of a collective business on the basis of no one's property. Labor collective can be formally formed, but it can also exist informally.
True, as we remember, the law provides for civil and criminal liability of officials who have the right to act on behalf of these organizations. Therefore, on the one hand, this official initially, as it were, relatively falls out of the friendly team of users and managers of the legal entity's no-man's property, and on the other hand, he may constantly feel the desire to turn such an indefinitely collective business into his indefinitely private business.
Possible and third kind collective entrepreneurship on the basis of indefinitely collective, nobody's property. It arises in those cases when the founders of a non-profit organization, on the one hand, and their employees, on the other hand, taking into account the peculiarities of the property status of the specified organization, agree among themselves on the formation of a single entrepreneurial team - a company in the organizational and legal form of a fund or ANO, - which would include both the founders of the legal entity and its employees. Such consent is quite probable, and its achievement to the greatest extent would reflect the meaning of the non-commercial nature of the activities of the created organization. However, in practice it can be difficult to achieve because of the sometimes complete mismatch between the business interests of the group of founders, who consider the autonomous non-profit organization (or fund) created by them as their property, and the group of employees, who, in turn, believe that said organization belongs to him.
Along with foundations and autonomous non-profit organizations, on the basis of collective entrepreneurship on the basis of indefinitely collective property, other organizational and legal forms can also operate, which, unlike an ANO or a foundation, never arise on the basis of a sole founder. These are non-profit partnerships, associations (unions) of legal entities, as well as public and religious associations of citizens, the basis of which is associative ownership of the means of production.
Public and religious associations (organizations)
are voluntarily created by citizens on the basis of their common interests to satisfy spiritual or other non-material needs. Public associations are political organizations, scientific academies, trade unions, religious organizations, voluntary societies and unions of creative workers, educational associations, sports federations, public self-government organizations created individuals. At the same time, members of such associations do not retain the rights to the property transferred by them to the ownership of these associations, including membership fees, they are not liable for the obligations of the associations of which they are members, and they, in turn, are not liable for the obligations of their members. The property of public associations shall not be returned to the participants either in the event of their withdrawal from the given association or in the event of its liquidation.
In public and religious associations, there is no concept of foundation, although the term constituent documents is retained. Members of these associations are called members of associations , the range of their rights and obligations is limited to joining the association, paying membership fees, participating in the discussion of various issues and electing the governing bodies of the association, as well as voluntary or forced withdrawal from the association.
Associative property on the means of production differs, say, from cooperative ownership by the absence of shares in the property of a legal entity. People who have joined such an association, as a rule, pursue, as a rule, other goals than cooperators; among other things, they have no business interest in the return of membership fees in case of withdrawal from the association and in the event of liquidation of such an association. On the contrary, the level of personal trust between the members of the association, connected by common goals and collective management, is higher than between the members of the production cooperative.
It is worth understanding that a voluntary association of citizens, like any other association of people into a single team, can only be based on mutual trust. Such mutual trust is rare these days. Nevertheless, when it arises, stable, cohesive, as a rule, relatively small public associations are able, at least in the initial stages of their existence, to demonstrate positive opportunities associative collective entrepreneurship . On the contrary, the loss of such trust is a sure sign, in fact, of the degeneration of the associative property of such an association into no one's, and the association of citizens itself on the basis of voluntary membership - into a hidden form of collective entrepreneurship on the part of the leadership of the association.
The associative nature of property is indeed based on the alienation of part of the property of members of a public association in favor of this association. In this case, the business interests of the members of the association can be systematically satisfied only under conditions of exceptional stability of such an association, its cohesion and the actual orientation of its activities to the needs of the members of the association. Otherwise, the associative nature of property will mean only the alienation of the property of the members of the association and nothing more. Therefore, the property of such associations will, figuratively speaking, be even more worthless than in funds and ANOs, and collective entrepreneurship will certainly acquire in them the form of a collective business activity, in fact, not accountable to anyone, officials and employees of a public association.
The foregoing primarily applies to those public and religious associations that were created many decades ago, some of them back in the days of the USSR. These are, for example, the Federation of Independent Trade Unions of Russia, the Russian Union of Youth, various religious organizations that own many expensive objects of movable and immovable property.
The leaders of all the aforementioned associations usually categorically reject any involvement of these associations, not only in commercial activities but also to entrepreneurial. Indeed, the main statutory tasks of such associations do not contain even a hint of entrepreneurship. However, as we have already found out, these legal entities based on associative property are forced to engage in entrepreneurship; they have the right to do so directly or through participation in the establishment of new entrepreneurial firms.
Entrepreneurial activity of public associations is a very specific type of entrepreneurial activity in the territory Russian Federation. This specificity is due to a number of circumstances, namely:
O public associations are not
entrepreneurial firms per se;
O they are not created for business purposes
directly, but for other reasons;
O the charter of such organizations usually indicates the non-profit nature of their functioning; however, they have the opportunity to engage in entrepreneurial business, since
Russian legislation does not contain prohibitions on this;
O incomes received by public associations from entrepreneurial activities permitted by them are not subject to distribution among the participants and can be spent exclusively on the needs of these legal entities themselves, the composition of which is determined governing bodies associations.
Associations and unions of legal entities can be created by business entities on a voluntary basis to coordinate their business activities, as well as to represent and protect their common property interests. Such an association (union) is not liable for the obligations of its members, but the members of the association (union) bear subsidiary liability for its obligations in the amount and in the manner (solidary or limited) provided for by its founding documents. The presence of founders in such associations (unions) is not provided, and the constituent documents of the created associations (unions) are the participants, called, as in the case of public associations of citizens, members . The absence of founders in associations (unions) of legal entities does not prevent its member-participants from compulsorily signing a constituent agreement among themselves. The considered organizational and legal form of a non-profit organization is the only one in respect of which the law unequivocally insists on drawing up a constituent agreement.
The organizational and legal form of the association (union) of legal entities in general is currently the most collectively indefinite, since,
- Firstly , the law does not in any way define property relations that arise in the course of the activity of an association (union), but instead fixes the existence of subsidiary liability for members of an association (union) of legal entities for the obligations of the association (union);
- Secondly , this form is the only one in respect of which the law contains a direct ban on doing business.
Meanwhile, explain how an association (union) can protect the property interests of its members, in other words, legal activity, as well as coordinating the actions of its members, in other words, it is difficult to manage the business interests of business entities without doing business on their own. The fact is that any of the above actions cannot be carried out if they are not initiated by business entrepreneurial interests. Another question is that such actions cannot pursue the goal of making a profit - then, probably, it would be necessary to establish a legislative ban on the association (union) from engaging in non-entrepreneurial activities, namely commercial, which, however, already takes place in connection with the attribution associations (unions) of legal entities to the number of non-profit organizations. Obviously, in order to avoid misunderstandings, it is advisable for such associations (unions) to carry out only those types of activities that are named above, fixing in the charter their absolutely non-commercial nature.
Difficulties also arise with the definition of property relations arising in connection with the activities of such associations (unions). It is clear that these non-profit organizations cannot but have some kind of separate property; otherwise, they could not be defined as legal persons. It is also obvious that members of associations (unions) do not have real rights to this property. At the same time, they have the rights of obligations, for they are obliged to answer for the obligations of the association (union). Moreover, the law provides that a member of an association (union) who wishes to withdraw from it has subsidiary liability for the obligations of the association (union) in proportion to his contribution within two years from the date of withdrawal. The fact that the members of associations (unions) have such strict obligations in relation to the mentioned legal entities, in the absence of their explicit rights to the property of such associations (unions), makes the non-profit organizations in question a kind of analogue of the Masonic lodges famous in the past.
In any case, with regard to the legal form under consideration, the basic provisions on collective business, identified in relation to, say, an autonomous non-profit organization, are applicable. The only exception is the circumstance that, unlike ANO, only legal entities can be members of an association (union). This reduces the opportunities for collective entrepreneurship. For practical application of the specified organizational and legal form, it is precisely as an independent business entity that interested parties need to spend considerable preparatory work, including asserting their rights in relation to potential members of the future association (union).
Let us turn to the final organizational and legal form of collective entrepreneurship based on indefinite collective ownership - to a non-profit partnership. non-profit partnership a non-profit organization based on membership is recognized, the property of which belongs to the organization itself and does not belong to its founders and members. A non-profit partnership is not liable for the obligations of its members, and members non-profit partnership- under the obligations of the latter.
A non-profit partnership is a kind of intermediate form of collective entrepreneurship based on outwardly no-man's property between an autonomous non-profit organization and public association citizens. In a non-profit partnership there are, On the one side , the founders who have the right, like the founders of the ANO, to conclude a constituent agreement between themselves, which in this case will supplement the charter of the non-profit partnership in the package of constituent documents . On the other side , it has members who have the same rights and obligations to pay membership fees as members of public associations.
The fact that a foundation is provided for in a non-profit partnership allows the creators of this organizational and legal form to use the methods of collective entrepreneurship described above when characterizing ANOs. At the same time, membership in a non-profit partnership has its own peculiarities that are absent in other non-profit organizations. Regardless of whether the exclusion of a member from a non-commercial partnership is voluntary or compulsory, he has the right to receive a part of the property of the non-commercial partnership or the value of this property within the value of the property transferred by the members of the non-commercial partnership to his ownership, with the exception of membership fees. A similar procedure for the division of property of a non-commercial partnership is also provided for in the event of liquidation of a non-commercial partnership. This means that it is expedient for the founders of the considered business entity to approve their status as members of this business entity.
The division of actors into founders and members of a non-profit partnership provides smart people with another wonderful opportunity to organize a collective business based on indefinite collective ownership. The fact is that, in fact, no one bothers the founders of a non-profit partnership, when developing constituent documents, to establish two different organizational structures a legal entity and two composition of the management bodies of a non-commercial partnership. Of course, in the end, both of these structures must be somehow combined, and the highest and executive management bodies of a non-commercial partnership are still obliged, in the end, to be united. There are truly boundless opportunities for founders to show any professional entrepreneurial fantasies.
For example, it is possible to divide the rights and obligations of the participants in a non-profit partnership in such a way that all the rights in the area of making important decisions will be with its founders, and all the responsibilities for doing business with the members. It is possible, further, to fix the exclusive right of founders to admit new members to a non-commercial partnership and to forcibly exclude existing members from its membership. Finally, it is possible to provide for the existence of a permanent and mandatory rotation of members of a non-profit partnership, with the exception of those who are not only its members, but also founders. In all of the above cases, the founders of a non-commercial partnership receive special opportunities to realize their business interests in the form of collective entrepreneurship on the basis of outwardly no-man's indefinite collective ownership.
Here we should pay attention to the fact that in Russia only the organizational and legal form is legalized. non-profit partnership and the form of commercial partnership, which is widespread in countries with a market-oriented economy and is not legalized and developed on the basis of not indefinitely collective ownership, but of a well-defined type of group (joint) ownership of business partners. By the way, the very popular concept of business partners has its roots precisely in the organization of partner business.
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