Commercial organization as a subject of entrepreneurial activity. Legal status of a commercial organization as a business entity
The concept of a legal entity? Types of legal entity? Commercial organizations? Organizational and legal form of a legal entity? General partnership? Faith partnership? Peasant (farm) economy? Business partnership? Society with limited liability? Additional Liability Company? Joint-Stock Company? Types of joint stock company? Production cooperative? Unitary enterprises? Business associations? Holding? Subsidiary
Legal entities as participants in entrepreneurial activity
A citizen has the right to carry out entrepreneurial activities not only on an individual basis without forming a legal entity, but also by creating a legal entity.
Legal entities include organizations that have separate property in ownership, economic management or operational management and are liable for their obligations with this property, can acquire and exercise property and personal non-property rights on their own behalf, incur obligations, be a plaintiff and defendant in court. 48 GK).
Legal entities have property isolation. The property complex of the organization is separated (separated) from the property of others legal entities, citizens, including those who are participants (founders) of this organization; Russian Federation, its subjects, municipalities.
Different degrees of segregation of property are allowed. It can belong to the organization on the right of ownership, the right of economic management and the right of operational management. Most commercial organizations (with the exception of unitary enterprises) own, use and dispose of their property as an owner. Accounting for property owned by the organization is carried out by maintaining a balance sheet. The balance sheet is the main source of information about financial position legal entity. The property of an individual entrepreneur acting without forming a legal entity shall not be separated from his personal property.
As a subject of business relations, a legal entity participates in the turnover on its own behalf through its bodies. The system of management bodies of an organization depends on the organizational and legal form of a legal entity, is provided for by law and constituent documents. A person acting on behalf of a legal entity must act in its interests, in good faith and reasonably. It is obliged, at the request of the founders (participants) of the legal entity, to compensate for the losses caused by them to the legal entity, unless otherwise provided by law or contract (clause 3, article 53 of the Civil Code).
When creating an organization, its founders have the right to choose the organizational and legal form that is best suited for conducting a certain type of entrepreneurial activity and corresponds to the goals of the founders.
In accordance with Art. 50 of the Civil Code, all legal entities are divided into two types. The basis for the distinction is the purpose of the activities carried out by the organization. Commercial legal entities have the main purpose of their activities to make a profit. Non-profit organizations are legal entities that do not pursue the goal of making a profit and do not distribute the profits received among the participants.
Commercial organizations, with the exception of unitary enterprises, are endowed with universal legal capacity. They may have the rights and bear the obligations necessary for the implementation of any activities not prohibited by law. Unitary enterprises and non-commercial organizations may have civil rights corresponding to the goals of activity provided for in the constituent documents, and bear obligations related to this activity. The legal capacity of these legal entities is recognized as special.
The Draft Civil Code provides for another distinction between legal entities: corporations and unitary organizations (Article 65.1 of the Draft).
Corporations include organizations whose founders (participants, members) have the right to participate in the management of their activities (the right of membership). Legal entities, the founders of which do not become their participants and do not acquire membership rights in them, are unitary organizations. Among the corporations are economic partnerships and companies, economic partnerships, production cooperatives. Unitary commercial legal entities are state and municipal enterprises.
Types of organizational and legal forms of commercial organizations are established in the Civil Code; their list is exhaustive.
The organizational and legal form of a legal entity is understood as a set of legally fixed features that characterize the procedure for the formation and legal regime of the organization's property, the method of its individualization, the ratio of the rights and obligations of participants and the economic entity to the property used, and the distinctive features of the internal organizational structure.
The choice of legal form depends on many factors:
- goals and activities of the future organization;
- the composition of the founders, their influence on the activities of the organization, the number of participants;
- the legal status of participants, the scope of property rights and obligations of participants;
- requirements for the minimum amount of "starting" capital;
- the presence or absence of restrictions on the alienation of a share in the capital;
- control systems;
- features of taxation.
Introduction
The concept and features of a legal entity
Commercial organization - business entity
Types of commercial organizations and conditions for implementation economic activity
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 the 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 for an efficient market system management is characterized by free economic activity, implying 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 (Article 14 of the Federal Law of 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. IN founding documents organizations in without fail includes 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 about 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 an organization that would meet the goals and objectives of a 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 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 an object of 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.
In Russian civil legislation, there is no concept of the commercial activity of an organization; instead, 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 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, a new definition of business entities appeared in the regulations 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 economic interests Russian Federation in the implementation foreign trade goods"). An analysis of the content of these laws indicates that the term "economic entity" is used in them to refer to legal entities - business entities. An analysis of the content of these laws indicates that the term "economic entity" is used in them to refer to legal persons - business entities.
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);
V) Joint-Stock Company(Article 96 of the Civil Code, Federal Law of December 26, 1995 N 208-FZ "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 a certain number of 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 form of consumer cooperatives, foundations, public and religious organizations, associations, unions, institutions, etc. A common feature of all these 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 directly provided for by the charter 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 constituent agreement, business companies - on the basis of a constituent agreement and charter, production cooperatives and non-profit organizations - on the basis of a 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 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 Federal Tax Service of the Russian Federation at the location of the legal entity within 5 working days. In this case, the location is considered to be the location of the permanent executive bodies of the legal entity indicated 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 activities for which licenses are required. A license is a special permit issued by authorized government bodies for 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 from five to twenty times the minimum wage.
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, production tools 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 to established rules(norms) were fulfilled by business entities, state system created specially authorized bodies, which not only participate in licensing procedures, but also various means support appropriate administrative and legal regimes.
These authorized bodies usually carry out and state control for business entities that have different permits to carry out certain types of activities, and have the right to hold liable 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 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 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. General part: Course of lectures (responsible editor - O.N. Sadikov). - M. Jurist, 2001.
All legal entities can be classified into commercial and non-commercial organizations.
A commercial organization is an organization whose activities are aimed at making profit and dividing it among participants.
Business companies and business partnerships.
Economical society and business partnership - commercial organizations created on a voluntary basis on the basis of membership, and are endowed by law with general legal capacity. They become the owners of the property formed at the expense of the contributions of the founders (participants), as well as produced and acquired in the course of their activities.
Differences between a business company and a business partnership:
- 1. H.T. - association of persons. H.O. - the pooling of capital.
Those. in H.T. in addition to property contributions, direct, personal participation in the affairs of the partnership is assumed. These cases should be conducted by the participants themselves, without involving hired persons in them. The participants of H.T. (general partners) can only be individual entrepreneurs and commercial organizations.
2. Participants in partnerships (with the exception of contributors), in contrast to participants in companies, bear unlimited liability with personal property for the obligations of such partnerships if the latter lack their own property.
Economic companies.
Limited Liability Company- a business company, the authorized capital of which is divided into shares. The participants are not liable for the debts of the company and bear the risk of losses within the limits of their contributions, and the company is not liable for the debts of the participants. The number of participants is not more than 50. Otherwise, the LLC must be transformed into an OJSC or a production cooperative. LLC can be established sole member. An LLC is not entitled to have as its founder another company founded by a single person.
The LLC has a two-tier management structure:
- The supreme body is the meeting of participants (or the sole founder).
- Executive body: always sole (director) and, if necessary, a collegial body is created.
When leaving the LLC, a participant has the right to pay him a part of the property corresponding to his share.
Additional Liability Company- corresponds to the characteristics of an LLC, with the exception of the additional liability of the participants. The participants jointly and severally bear subsidiary (additional) liability for the debts of the ALC, i.e. responsible for the insufficiency of the property of the company itself.
With the entry into force of the Federal Law of May 5, 2014 No. 99-FZ "On Amending Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as invalid", this organizational form of entrepreneurial activity will be excluded.
Joint stock company (CJSC or OJSC)- a business company, the authorized capital of which is divided into a certain number of shares, and its participants (owners of shares - shareholders) are not liable for the debts of the company and bear only the risk of losses within the value of their shares. Withdrawal from the company can be carried out only by alienating the share (shares) to another person. Thus, a joint-stock company is guaranteed against a decrease in its property due to the withdrawal of participants from it.
The value of a joint-stock company lies in the possibility of attracting and centralizing large capital, initially dispersed among many small owners.
Joint-stock companies are divided into closed (CJSC) and open (OJSC). JSC has the right to sell its shares among an indefinite circle of persons. Shareholders of an OJSC have the right to freely alienate their shares both to other shareholders and to third parties. CJSC can distribute their shares only among the founders or other predetermined circle of persons. The number of participants in a CJSC should not exceed 50.
JSC management structure:
The supreme body general meeting shareholders, which has the exclusive competence to change the charter, make decisions on reorganization or liquidation, form executive bodies, etc.
Board of Directors (Supervisory Board) (if more than 50 members - mandatory).
The executive body (sole and (or) collegiate) deals with the resolution of all issues that do not constitute the exclusive competence of the general meeting and the Board of Directors.
Business partnerships.
General partnership- a partnership, the participants of which, in accordance with the agreement concluded between them founding agreement, carry out entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property.
A person may be a participant in only one full partnership.
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.
Profits and losses of a general partnership shall be distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the memorandum of association or other agreement of the participants.
Limited partnership (limited partnership) - a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership.
The management of the activities of a limited partnership is carried out only by general partners.
Production cooperative (artel) - a commercial organization, which is a voluntary association of citizens who are not entrepreneurs for joint production or other economic activities based on their personal labor (or other) participation and the association of certain property (share) contributions, with their personal limited subsidiary liability for the obligations of this commercial organization .
The supreme governing body of a cooperative is the general meeting of its members.
State and municipal unitary enterprises.
A unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares).
Only state and municipal enterprises can be created in the form of unitary enterprises.
The property of a state or municipal unitary enterprise is respectively in the state or municipal property and belongs to such an enterprise on the right of economic management (Article 294 of the Civil Code) or operational management (Article 295 of the Civil Code).
Economic partnership.
In accordance with the Federal Law of 03.12.2011 N 380-FZ "On economic partnerships", an economic partnership (hereinafter referred to as a partnership) is recognized as a partnership established by two or more persons commercial organization, in the management of the activities of which, in accordance with this Federal Law, the participants of the partnership (partners), as well as other persons, take part in the limits and to the extent that are provided for in the charter and agreement on the management of the partnership. The list of activities that cannot be carried out by partnerships is approved by the Government of the Russian Federation.
The participants of the partnership (partners) are not liable for the obligations of the partnership and bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of their contributions. The partnership is liable for its obligations with all its property and is not liable for the obligations of its participants.
From September 1, 2014, Federal Law No. 99-FZ of May 5, 2014 introduces a new classification organizational forms legal entities. All legal entities, in accordance with the amendments to the Civil Code, will be divided into corporations and unitary legal entities (Article 65.1 of the Civil Code of the Russian Federation as amended by Law No. 99-FZ). The possibility of creating companies with additional liability and closed joint-stock companies has been excluded. A new organizational and legal form of a non-profit organization has been created - a partnership of real estate owners.
Corporations- organizations in respect of which their members have corporate rights. These organizations include all commercial legal entities (with the exception of unitary enterprises), as well as a number of non-profit ones:
consumer cooperatives;
Public organizations;
Associations (unions);
Associations of property owners;
Cossack societies included in the relevant state register;
Communities of indigenous peoples.
Unitary organizations- legal entities whose founders do not become their participants and do not acquire membership rights in them.
These include state and municipal unitary enterprises (which are commercial organizations), as well as the following non-profit organizations:
Public, charitable and other foundations;
State institutions (including state academies of sciences), municipal and private (including public) institutions;
Autonomous non-profit organizations;
Religious organizations;
Public law companies.
Business companies since September 1, 2014 are divided into public(joint stock companies whose shares and securities convertible into such shares are publicly placed (by public offering) or publicly traded) and non-public(limited liability companies and joint-stock companies that do not meet the criteria of a public company).
___________________
general restrictions (at the level Art. 50
non-profit organizations, 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).
The current version of the Civil Code of the Russian Federation contains an open list of non-profit organizations. However, in accordance with the changes that come into force on September 1, 2014. paragraph 2 of article 50 of the Civil Code will be set out in new edition, and will contain a closed list of organizational and legal forms of non-profit organizations (consumer cooperatives, public organizations, associations (unions), partnerships of property owners, Cossack societies, communities of indigenous peoples of the Russian Federation, foundations, institutions, autonomous non-profit organizations, religious organizations, public legal companies).
Non-profit organizations may carry out income-generating activities, if it is provided for by their charters, only in so far as it serves the achievement of the goals for which they were created, and if it corresponds to such goals. A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of state and private institutions, must have sufficient property for the implementation of these activities. market value at least minimum size authorized capital provided for limited liability companies
Restrictions on the right to engage in entrepreneurial activities for non-profit organizations (in force since the adoption of the Civil Code of the Russian Federation) can be divided into two types:
general restrictions (at the level Art. 50 Civil Code of the Russian Federation) - connection with the main activity and a ban on the distribution of profits;
private (specific) restrictions (at the level of norms of individual federal laws) - the establishment of additional limits, including by listing the permitted types of entrepreneurial activity.
In any case, non-profit organizations are created for socially useful purposes, therefore, entrepreneurial activity should perform an exclusively auxiliary function, i.e. be subject to statutory purposes. According to M.V. Bloshenko, “we can talk about “serving” entrepreneurial activity to the main goal of the activity of a non-profit organization, if the profit received from entrepreneurial activity is directed directly to achieving these goals”
According to the current Russian law, there are various organizational and legal forms of commercial organizations, depending on who owns the organization, the form of ownership is also determined. The legislation of the Russian Federation provides the following forms property: private, public, property public organizations(associations) and mixed.
Commercial organizations are divided into three major categories: 1) organizations that unite individual citizens (individuals); 2) organizations that pool capital 3) state unitary enterprises.
1) organizations uniting individual citizens (individuals) - economic partnerships and production cooperatives. The Civil Code clearly distinguishes partnerships - associations of persons requiring the direct participation of founders in their activities, companies - capital associations that do not require such participation, but involve the creation of special management bodies. Business partnerships can exist in two forms: a general partnership and a limited partnership.
IN full partnership(PT) all its participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and bear the full liability for his obligations. Each participant may act on behalf of the partnership, unless otherwise established by the memorandum of association. The profit of a full partnership is distributed among the participants, as a rule, in proportion to their shares in the share capital. For the obligations of a full partnership, its participants are jointly and severally liable with their property.
partnership in faith, or a limited partnership (TV or CT), such a partnership is recognized in which, along with general partners, there are also contributors (limited partners) who do not take part in the entrepreneurial activities of the partnership and bear limited liability within the limits of the amounts of their contributions. In essence, TV (CT) is a complicated type of PT.
In a general partnership and limited partnership, shares of property cannot be freely assigned, all full members bear unconditional and joint and several liability for the liability of the organization (they answer with all their property).
2) organizations that pool capital - Production cooperative(PrK) p .With. voluntary association of citizens on the basis of membership for joint production or other economic activities based on their personal labor or other participation and the association of its members (participants) of property shares. The features of the PrK are the priority of production d-ti and personal labor participation of its members, division of the property of the Governing Committee into shares of its members.
Joint-Stock Company(JSC) is a company, the authorized capital of which consists of the nominal value of the shares of the company acquired by shareholders, and, accordingly, is divided into this number of shares, and its participants (shareholders) bear material liability within the value of their shares. JSCs are divided into open and closed (JSC and CJSC). Members of an OJSC may alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription for issued shares and their free sale. In a CJSC, shares are distributed by closed subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian legislation limited to 50 persons.
But there is a third, "hybrid" category - a limited liability company and an additional liability company - which simultaneously applies to organizations that combine individuals, and to organizations that pool capital.
Limited Liability Company(LLC) is a company whose authorized capital is divided into shares of participants who are liable only within one hundred
Joint-Stock Company(JSC) is a company, the authorized capital of which consists of the nominal value of the shares of the company acquired by shareholders, and, accordingly, is divided into this number of shares, and its participants (shareholders) bear material liability within the value of their shares. Joint-stock companies are divided into open and closed (JSC and CJSC). Members of an OJSC may alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription for issued shares and their free sale. In a CJSC, shares are distributed by closed subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian law is limited to 50 persons.
3) K state and municipal unitary enterprises(UP ) include enterprises that are not endowed with the right of ownership of the property assigned to them by the owner. This property is in state (federal or subjects of the federation) or municipal property and is indivisible. There are two types of unitary enterprises
based on the right of economic management(they have wider economic independence, in many respects they act as ordinary commodity producers, and the owner of the property, as a rule, is not liable for the obligations of such an enterprise)
based on the right of operational management(state-owned enterprises) - in many ways resemble enterprises in a planned economy, the state bears subsidiary responsibility for their obligations if their property is insufficient.
Commercial organization - legal a person who pursues profit as the main goal of his activities, as opposed to from a non-profit organization that does not aim to make a profit and does not distribute the profits 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:
Possess separate property on the rights 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; bear obligations;
Can be a plaintiff and defendant in court.
Article 50 of the Civil Code of the Russian Federation provides an exhaustive list of organizational and legal forms of commercial legal entities. This means that without changing the Civil Code, other types of commercial legal entities cannot be introduced into civil circulation by any other laws.
Classification of commercial organizations by legal form in the Russian Federation
A business partnership is a commercial organization with an authorized capital divided into shares (contributions) of founders (participants). Property created at the expense of participants' contributions, as well as produced and acquired economic partnership or a company, is owned by him (the definition is enshrined in Art. 66 Civil Code Russian Federation).
General partnership
Limited partnership (limited partnership)
Peasant (farm) economy
Economical society
Joint-Stock Company
public corporation
Closed Joint Stock Company
Limited Liability Company
Additional Liability Company
Production cooperative
Unitary enterprise on the right of economic management
Unitary enterprise on the right of operational management
Economic partnership
Classification commercial enterprises by ownership of capital
national enterprise
Foreign company
joint venture
multinational enterprise
Rights of participants in commercial organizations
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