Commercial organizations and business associations as business entities. Commercial legal entities as subjects of entrepreneurial activity Commercial organization as a form of entrepreneurial activity

Legal entities are business entities. In accordance with Art. 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, incur obligations, be a plaintiff and defendant in court . Legal entities must have an independent balance sheet or estimate. A legal entity is considered established from the moment of its state registration according to established order. A legal entity has its own name, containing an indication of its organizational and legal form. Depending on the legal form legal entities act on the basis of the charter, or the memorandum of association and the charter, or only the memorandum of association.

In accordance with Art. 50 of the Civil Code of the Russian Federation legal entities are divided into two types: commercial and non-commercial organizations.

A commercial organization is an organization that sets profit as the main goal of its activities. In accordance with the procedure established by law and constituent documents, a commercial organization distributes net profit between the founders (participants). Consequently, in accordance with civil law, all commercial organizations (except for state-owned enterprises) can be considered entrepreneurial. Commercial organizations can be created in the form of economic partnerships and companies, production cooperatives, state and municipal unitary enterprises.

commercial organization is a legal entity with the main purpose of making a profit (as opposed to non-commercial). They can be created as economic partnerships and companies, production cooperatives, state and municipal unitary enterprises.

Legal entities that are commercial organizations can be created in the form of economic partnerships and companies, production cooperatives, state and municipal unitary enterprises. Legal entities that are non-profit organizations can be created in the form consumer cooperatives, public and religious organizations, associations (associations, unions) of legal entities, institutions and in other forms provided for by law.

Legal entities that are commercial organizations must have a company name; under this name, a commercial organization is registered, entered in the state register of legal entities and enters into economic circulation.

A trade name is a way of individualization of a commercial organization, a commercial organization has the exclusive right to use it.

The current legislation also provides for other ways of individualizing commercial organizations: a trademark, a service mark, which are used to individualize homogeneous goods and services, as well as to advertise them. Trademarks and service marks are subject to registration. Registration as trademarks and service marks of designations containing information that may mislead consumers is prohibited.

The rights to the trade name, trademark and service marks are non-property rights and belong exclusively to this commercial organization. A commercial organization has the right to demand through arbitration court compulsory termination of the use by any other person of identical and similar forms of individualization, as well as compensation for losses caused by such a violation.

The law provides different kinds commercial organizations, in particular, they are divided into organizations that are the owners of the property they use and are not. The former include business partnerships and companies, production cooperatives, the latter - state and municipal unitary enterprises.

Commercial organizations that own property, in turn, are divided into "associations of persons" and "associations of capital".

"Association of persons" are production cooperatives (artels); in these commercial organizations, personal participation in the activities of the cooperative is fundamental; this is manifested both in the management of the cooperative and in the distribution of profits. Each member of the cooperative, regardless of the size of its capital, has one vote at the general meeting, the distribution of profits is also carried out based on personal labor contribution.

Some personal participation in the activities of a commercial organization also involves a general partnership and a limited partnership (for general partners).

When considering the status of a legal entity, the question of its legal capacity is important. It can be general (universal) and special (target). Commercial organizations, with the exception of state and municipal unitary enterprises, have general legal capacity. Currently, they can engage in any activities not prohibited by law. entrepreneurial activity. Non-commercial organizations, as well as state and municipal unitary enterprises, have special legal capacity. They have the right to engage only in those activities that are provided for by their constituent documents. These innovations are provided for by the Civil Code of the Russian Federation of 1994; in accordance with the previous legislation, commercial organizations had special legal capacity, could only engage in those types of activities that were provided for by their constituent documents. However, the founders of commercial organizations may, on their own initiative, limit the legal capacity of a legal entity by introducing appropriate provisions in founding documents. In this case, the activity of a legal entity must be carried out taking into account the established and restrictions.

According to Asaul A.N., according to the degree of entrepreneurial activity, in accordance with Russian legislation, organizations are divided into two groups: commercial and non-commercial Asaul A.N. Organization of entrepreneurial activity - SPb., 2009.- P.85. The adjective "commercial" means that the organization is economically (monetarily) motivated social organization which has the main goal of making a profit. Legal entities that do not have profit making as the main goal of their activities and do not distribute profits among participants are non-profit organizations.

A commercial organization (company) may include more than one enterprise (single property complex) carrying out entrepreneurial activities within the organization (company), but several.

According to paragraph 2 of article 50 of the Civil Code of the Russian Federation, commercial - organizations that pursue profit as the main goal of their activities; Entrepreneurship is their main core of the Civil Code of the Russian Federation Art.50.

Commercial organizations fall into three broad categories: organizations that bring together individuals ( individuals); organizations that combine capital and state unitary enterprises (Figure 2. APPENDIX 2).

The former include business partnerships and production cooperatives. 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 a general 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 member may act on behalf of the partnership if founding agreement there is no other order. 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.

A limited partnership, or a limited partnership (TV or CT), is recognized as such a partnership in which, along with general partners, there are also contributors (limited partners) who do not take part in the business activities of the partnership and bear limited liability within the limits of the amounts contributed by them deposits. 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).

Business partnerships (HT), as well as business companies (CO), are commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). The differences between CT and CW are manifested, in relation to their more specific forms, in the ways of their formation and functioning, in the characteristics of their subjects in terms of the degree of material responsibility of these subjects, etc. In the very general view all these differences can be interpreted in the context of the ratio of corporate partnerships.

Business companies can be created in the form joint-stock company, limited or additional liability companies. In partnerships and societies, the means and efforts of their participants are combined to achieve a single economic goal. Partnerships are characterized by closer personal relationships of the participants; these are most often associations of persons in which the personal qualities of the participants are of decisive importance. In societies, in the foreground is the pooling of capital, and the personal qualities of the participants are not of decisive importance.

A production cooperative (artel) is a voluntary association of citizens for joint management entrepreneurial activity on the basis of their personal labor and other participation, the initial property of which consists of shares of members of the association bearing subsidiary liability for all its obligations in the manner and in the amount established by the charter and legislation on production cooperatives (Article 107 of the Civil Code of the Russian Federation).

By the time of state registration, at least 10% of the unit fund of the cooperative must be paid. The rest is paid during the first year of operation of the production cooperative.

Citizens, legal entities (if it is provided for by the charter) can be participants in a cooperative. The number of members of a production cooperative may not be less than five. The number of members of the cooperative who do not accept personal labor participation in its activities, is limited to 25% of the number of members participating in the work of the cooperative by personal labor (Article 7 of the Federal Law "On Production Cooperatives").

The founding document of a production cooperative is the charter. The supreme governing body is general meeting members of the cooperative, having exclusive competence.

Features of the legal status of a production cooperative are enshrined in the Civil Code of the Russian Federation, as well as in the Federal Law "On Production Cooperatives".

As Pereverzev M.P., Luneva A.M. note, the most common forms of organization in large and medium-sized businesses are joint-stock companies. The difference between joint-stock companies lies in the fact that they are granted the right to raise the necessary funds by issuing securities - shares Pereverzev M.P., Luneva A.M. Fundamentals of Entrepreneurship / Under the general. ed. M.P. Pereverzeva. - M, 2009. - P.27.

The legal status of a joint stock company is determined by the Civil Code of the Russian Federation, as well as the Federal Law "On Joint Stock Companies".

The authorized capital of joint-stock companies is formed from a certain number of shares. The number and par value of shares is determined in the articles of association. At the same time, the participants of a joint-stock company are not liable for its obligations and are responsible for the results of its activities within the limits of the value of their shares. Most of these companies in Russia in the 1990s were created through the privatization of state or municipal enterprises. Privatization of state and municipal property- paid alienation of property Russian Federation, subjects of the Federation or municipalities property (objects of privatization) into the ownership of individuals and legal entities.

A joint-stock company (JSC) is a company whose charter capital consists of the nominal value of the company's shares 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 legislation limited to 50 persons.

One of the types of commercial organizations are also state and municipal unitary enterprises, the legal status of which is determined by the Civil Code of the Russian Federation, as well as the Federal Law "On State and Municipal Unitary Enterprises".

State and municipal unitary enterprises (UE) include enterprises that are not endowed with the right of ownership to the property assigned to them by the owner. This property is located in the state (federal or subjects of the federation) or municipal property and is indivisible. There are two types of unitary enterprises (Table 1. APPENDIX 3) Asaul A.N. Organization of entrepreneurial activity - St. Petersburg, 2008. - P. 95:

• 1) 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);
• 2) based on the right of operational management (state-owned enterprises) - in many respects they resemble enterprises in a planned economy, the state bears subsidiary responsibility for their obligations if their property is insufficient.

The charter of a unitary enterprise (UE) is approved by the authorized state (municipal) body and contains:

• - the name of the enterprise with an indication of the owner (for a state enterprise - with an indication that it is a state enterprise) and location;
• - the procedure for managing activities, the subject and goals of activities;
• - the size of the statutory fund, the procedure and sources of its formation.

The authorized capital of the UE is fully paid by the owner before state registration. The amount of the authorized capital is not less than 1000 minimum monthly wages as of the date of submission of documents for registration.

If the cost net assets at the end of the financial year is less than the size of the authorized capital, then authorized body is obliged to reduce the authorized capital, about which the enterprise notifies creditors.

Unlike commercial legal entities - owners of property (economic partnerships, companies and production cooperatives), state and municipal enterprises:

• - manage not their own property, but state or municipal property;
• - they do not have the right of ownership, but limited real rights (the right of economic management, the right of operational management);
• - endowed with special (rather than general) legal capacity;
• - are unitary, since their property cannot be distributed among contributions (shares, shares).

The following types of unitary enterprises are created and operate in the Russian Federation:

• 1) unitary enterprises based on the right of economic management:
  • - federal state enterprise;
  • - state enterprise of a subject of the Russian Federation (state enterprise);
  • - municipal enterprise;
• 2) unitary enterprises based on the right of operational management:
  • - federal state enterprise;
  • - state-owned enterprise of a constituent entity of the Russian Federation;
  • - municipal state enterprise.

State-owned enterprises differ from other state and municipal enterprises in that:

• - are endowed with a real limited right of operational management, while other state-owned enterprises have the right of economic management; entrepreneurship organizational commercial cooperative
• - the right of operational management is much narrower than the right of economic management;
• - does not have the right to independently dispose of not only immovable, but even movable property;
• -unlike other state-owned enterprises, they cannot be declared bankrupt;
• - the state (the Russian Federation or a constituent entity of the Russian Federation) bears additional responsibility for their obligations if their property is insufficient;
• - they do not form an authorized fund, while in enterprises based on the right of economic management, such a fund is created (the size of the fund state enterprise cannot be lower than 5000 minimum dimensions wages, municipal - 1000 minimum wages) Smagina I.A. Entrepreneurial law - M., 2007 - P.19.

Municipal unitary enterprise.

The participant of the enterprise is its Founder - an authorized state body or body local government. This type of unitary enterprise is based on the right of economic management.

Constituent document - the charter approved by the authorized government agency or local government.

All decisions on the management of the enterprise are made by the head or another body appointed by the owner of its property.

By its obligations with all its property. Not responsible for the obligations of the founder. The owner of the property is liable for the obligations of the enterprise if its bankruptcy has occurred through the fault of the owner of the property.

The conditions for the use of profits are stipulated in the charter approved by the founder.

The liquidation of the enterprise is carried out by the decision of the founder - the owner of its property.

The enterprise may receive assistance from the state or local government. However, the management and other employees of the enterprise will not be sufficiently interested in effective work. SE, as a rule, are not able to compete with private enterprises.

Commercial organizations can be classified on the grounds, similar to how legal entities are classified. So, depending on the rights of the founders (participants) in relation to commercial organizations or their property, one can distinguish:

• a) commercial organizations in respect of which their participants have mandatory rights: business partnerships, business companies, production cooperatives,
• b) commercial organizations, on the property of which their founders (participants) have the right of ownership or other real right: state and municipal unitary enterprises.

Depending on the type of real right to property, commercial organizations differ:

• a) commercial organizations that have the right to own property: business partnerships, business companies, production cooperatives:
• b) commercial organizations that have the right of economic management of property: state and municipal unitary enterprises (except state-owned):
• c) commercial organizations that have the right to operational management of property: state-owned enterprises.

In this regard, it should be emphasized that, under the current legislation, the possibility of creating and operating commercial organizations, as well as other legal entities, is excluded only on the basis of property received under an agreement (lease, loan, etc.), in the absence of contributions from the founders in the authorized (share) capital of a commercial organization.

An entrepreneur is a natural or legal person registered in the manner prescribed by law, respectively, as an individual entrepreneur or a commercial organization and carrying out entrepreneurial activities. The fact that a person carries out entrepreneurial activity is the basis for recognizing him as a special subject of civil law - an entrepreneur and determines the need for the legislator to present special requirements to him and his activities.

So, in the Civil Code there are special rules on the entrepreneurial activity of citizens (Article 23), on the insolvency (bankruptcy) of an individual entrepreneur (Article 25), on commercial organizations (Article 50). All this testifies to the need to clarify who is an entrepreneur under Russian law and what are the special rules that apply to him and his activities.

Recognition of the status of an entrepreneur is an important legal fact and entails certain legal consequences.

Firstly, the transactions concluded by the entrepreneur are summarized as related to his entrepreneurial activity and are qualified as trading, i.e. subject to a special regime legal regulation(relations between entrepreneurs or with their participation are specially distinguished in the structure of the subject of civil law, clause 1, article 2 of the Civil Code).

Recognition for a person of the status of an entrepreneur provides him with additional rights and imposes a number of duties on him. By granting additional rights to entrepreneurs, the legislator assigns certain prerogatives to entrepreneurs. For example, commercial organizations have the exclusive right to use a company name (clause 4, article 54 of the Civil Code) or another object of intellectual property (article 138 of the Civil Code).

In particular, the company name individualizes the entrepreneur and his activities in commercial circulation, which is important in competition. The exclusivity of the right to a company name lies in the fact that other entrepreneurs are not entitled to use it in business turnover without the consent of the copyright holder.

laying on additional responsibilities, subordinating the activities of entrepreneurs to a stricter regime, aims to ensure the interests of others who interact with the entrepreneur. Such duties include: publication of information about the entrepreneur in a single state register legal entities, open for general acquaintance and giving an idea to other persons about the legal status of the entrepreneur (Article 51 of the Civil Code)

Keeping records of business activities, which serves to control its conduct, and in the event of disputes with other persons, facilitates the proof of the facts of business transactions (Article 88 of the Law on Joint Stock Companies), the provision by the entrepreneur in the prescribed manner of information about his activities, the provision financial reporting for the taxation of their activities, etc.

It should be noted that not every natural and legal person can be an entrepreneur. Prohibitions to engage in entrepreneurial activities primarily apply to civil servants, i.e. citizens of the Russian Federation who, in accordance with the procedure established by federal law, perform the duties of public office public service behind cash reward, paid from the federal budget or the budget of the corresponding subject of the Russian Federation (clause 1, article 3 of the Federal Law "On the Fundamentals of the Civil Service of the Russian Federation") and in accordance with Art. 11 of the Federal Law, a civil servant is not entitled to engage in entrepreneurial activities personally or through proxies.

A commercial organization is considered established and acquires the status of a legal entity from the date of its state registration (clause 2, article 51 of the Civil Code). From this moment, the legal capacity of a commercial organization arises, that is, to have civil rights and bear responsibilities.

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 are fully liable for its 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 peculiarities of the PrK are the priority of production d-ti and the personal labor participation of its members, the division of the property of the PrK 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 law is limited to 50 persons.

But there is a third, "hybrid" category - a society with limited liability and a company with additional liability - 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.

The modern civil legislation of Russia (Article 132 of the Civil Code of the Russian Federation) defines the concept of "enterprise" as a property complex used for entrepreneurial activities. At the same time, the named article considers the enterprise as an object of civil rights. This legislative position has significantly changed legal status enterprise, which generally found approval (even admiration) among representatives of civil science. Sometimes the question of an enterprise as a property complex is not even commented on the principle: why discuss anything, if everything is clear anyway. The enterprise is an object of civil rights, and this says a lot.

Indeed, the term company"had a different meaning for a long time. In the Soviet period, the legislator under the word" company"saw the figure of a subject of law, including civil law. In the early 90s, the definition of an enterprise was formulated in the Law of the RSFSR "On Enterprises and Entrepreneurial Activities." According to paragraph 1 of article 4, an enterprise is an independent business entity created in the manner prescribed this Law, for the production of products, performance of work and provision of services in order to meet public needs and make a profit.At the same time, the concept of "enterprise" and related problems continue to cause scientific disputes among legal scholars (and not only). In the past, Western civilists paid increased attention to the legal institution and continue to do so.According to some researchers, the era of the enterprise has begun, which affects all areas of the current legal system. The appearance of the enterprise in legal regulation is compared with the arrival at the end of the 18th century. to the political power of the third estate.

Moreover, modern legislation is industrially developed countries most often uses the term " company", and not the concept of "legal entity". Both supporters of economic (business) law and their scientific opponents point to this circumstance. Thus, in France there is Law N 85-98 on the restoration of enterprises and the liquidation of their property in judicial order, Law N 8599 on bankruptcy trustees, liquidators and experts in determining the state of enterprises. The Law on Enterprise Mortgage was adopted in Sweden. The law on joint-stock companies of Germany in 1965 dedicated a special book to the regulation of relations between related enterprises. The term " company began to appear in the texts of international agreements and conventions.

Therefore, it is hardly possible to indiscriminately assert that the concept of " company" is used in the legislation of foreign states erroneously, which would be more correct to use the term "legal entity". After all, it is impossible to consider the legal model of an enterprise formulated in the Civil Code of the Russian Federation as a criterion of truth (with all due respect for this product of civilistic thought).

In theoretical terms, the phenomenon of the enterprise raises a number of fundamental questions. Let's take a look at them in detail.

First of all, we note that the term "enterprise" has an economic origin. Even K. Marx, criticizing P. Proudhon on the issue of understanding factories and machines, wrote:

"A machine is only a productive force. The modern factory, based on the use of machines, is a social relation of production, an economic category."

However, this is where the unity of opinion among academic economists ends and a palette of different points of view is revealed. So, for some researchers, the enterprise is the primary cell economic system, for others - a team of workers and employees, for others - an economic unity in which human and material factors are combined and coordinated economic activity. With different interpretations of opinions, the most common (at least in Western economic literature) point of view on the enterprise as a junction of various factors: natural resources, labor and capital. Domestic scientists-economists react poorly to the economic origin of the enterprise.

The economic nature of the enterprise is manifested, in particular, in the fact that the enterprise is a property complex (a set of assets). This affiliation allowed a number of legal scholars to attribute the enterprise to the category of things.

This conclusion is in line with Art. 128 of the Civil Code of the Russian Federation, according to which objects of civil rights include things, including money and securities, other property, including property rights. We must agree with the opinion that an enterprise is an object that " falls out"from the classification of immovable and movable things, since it is not even a complex thing. Therefore, an enterprise is a special object of civil rights, and therefore it would be advisable to supplement Article 128 of the Civil Code of the Russian Federation with a norm on an enterprise.

Within the meaning of Art. 132 of the Code, an enterprise is not just a property complex. This is a complex used for business activities. In this capacity (when the participation of the owner-subject in the civil circulation makes it possible to extract a stable and definitely predictable income), the property complex becomes an enterprise. From this, two fundamentally important conclusions can be drawn. First, the concepts of "property complex" and "enterprise" are related as a genus and species. The foregoing means that the scope of the concept of a property complex should not be limited to commercial organizations, the main purpose of which is to make a profit. This concept is also applied to non-profit organizations with the only difference that the property complex is not used for general rule for business activities. On the other hand, non-profit organizations can engage in entrepreneurial activities only insofar as this serves to achieve the goals for which they were created (clause 3, article 50 of the Civil Code of the Russian Federation). In this case, the property complex should be called non-profit organization(say, institutions) by an enterprise. It is this approach that is found in the Law on Education (Article 47). In their business activities educational institution is equated to an enterprise and is subject to the legislation in the field of entrepreneurial activity, including tax.

Secondly, those scientists who consider the property complex as an independent object of civil rights are right. There are no grounds for not recognizing the existence of property complexes of other (except enterprises) legal entities and thereby artificially restraining their participation in the turnover.

At the same time, the belonging of the enterprise to the object of civil rights, i.e. property complex without the human factor and other constituent components, characterizes the category under consideration one-sidedly. A typical situation that arises during the implementation of insolvency (bankruptcy) procedures is indicative, when in the first place is a property complex intended for entrepreneurial activities. As for labor collective as an integral part of the enterprise, it is practically not taken into account. There is not a single article in the 2002 Bankruptcy Law that would reflect the rights and obligations of the debtor's labor collective at the stage of insolvency (bankruptcy).

A one-sided approach also took place during the total privatization of state and municipal property. The main emphasis was placed on the issue of changing the form of ownership in the shortest possible time. The interests of the labor collective were consigned to oblivion.

The enterprise as a whole as a property complex is recognized as real estate, and therefore it is subject to general provisions Civil Code of the Russian Federation, as well as other federal laws on the legal regime of real estate. True, the Code does not automatically subordinate it (an enterprise) to all real estate rules, but establishes a special, more formalized and strict regime for transactions with enterprises.

The composition of the enterprise as a property complex includes all types of property intended for its activities, including land, buildings, structures, equipment, inventory, raw materials, products, claims, debts, as well as the rights to designations that individualize the enterprise, its products, works and services (company name, trademarks, service marks), and other exclusive rights, if otherwise provided by law or contract. In other words, the composition of the enterprise includes not only property (main and working capital), but also intangible benefits. A paradoxical situation arises: means of individualization, such as a company name, trademarks, etc., by virtue of Art. 138 of the Civil Code of the Russian Federation refer either to a legal entity or to products, work performed or services rendered. In Art. 54 of the Civil Code of the Russian Federation refers to the obligation of a legal entity - a commercial organization to have a company name. Thus, the right to a company name simultaneously belongs to both an enterprise - an object of civil rights, and a legal entity - a commercial organization.

Among the significant contradictions between individual articles of the Civil Code of the Russian Federation can be attributed the rule of Art. 132 of the Civil Code of the Russian Federation that an enterprise as a property complex includes rights of claim and debts. It is unclear if an enterprise is an object of civil law, then why it can have property and personal rights associated with it. It is known that from the point of view of the Civil Code of the Russian Federation only legal entities have such rights. Otherwise, it should be assumed that the enterprise has bodies that implement these requirements.

The same can be said about the norm of Art. 132 of the Code that the property complex is intended for entrepreneurial activities. Here the remark of A.E. Pilecki and other authors, according to which the object of law (in our case, an enterprise) cannot carry out any activity, since this requires the presence of legal personality.

In connection with the above point of view, V.V. Vitryansky expressed the following considerations. When the legislator mentions the rights of claim and debts as part of the property of an enterprise as a single property complex, he means, of course, the rights of claim and debts for the obligations of the owner of the enterprise related to the activities of this property complex. In itself, an enterprise, not being a legal entity, in principle, cannot have rights and obligations.

What the legislator has in mind is known only to him, and not to the respected professor Vitryansky. However, the content of Art. 132 of the Civil Code of the Russian Federation makes it possible to detect contradictions, moreover, of a very fundamental nature.

In modern courses of contract law, the words of the medieval judge Brian are often quoted from a judgment issued by him in 1478:

"... the intention of a person cannot be the subject of a trial, since the devil himself does not know the intention of a person."

In practice and in theory, the question arose about the inclusion in the composition of the enterprise as a property complex intended for entrepreneurial activity, property that has a different purpose (social, cultural, etc.). For example, an object of social and cultural purpose is included in the charter of a joint-stock company as a contribution. The question is: is this object subject to accounting as part of the property complex of the enterprise or is it necessary to keep some other separate accounting? There is no clear, unambiguous answer to this question in the current legislation.

By virtue of paragraph 32 of Art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include expenses of industries and households serving the taxpayer, including expenses for the maintenance of housing and communal and socio-cultural facilities. And finally, in clause 5 of the Accounting Regulation "Accounting for Fixed Assets" PBU 6/01 (approved by Order of the Ministry of Finance of the Russian Federation of March 30, 2001 N 26n), an approximate list of fixed assets of organizations is given, in which there was no place for non-production objects .

Difficulties of a practical order can be detected if, for example, the parties to the contract of sale of an enterprise wish to include in the property complex such intangible benefits as the reputation of the enterprise, its business relations or market position, which in countries with developed market economy are called goodwill. As has been correctly noted in the literature, this desire is blocked by the rule of Art. 561 of the Civil Code of the Russian Federation, according to which:

"the composition and value of the enterprise being sold are determined on the basis of a complete inventory of the enterprise, carried out in accordance with established rules such an inventory.

The current inventory rules do not contain provisions for assessing the value of this kind of intangible items.

The 1998 Insolvency Law provided for the sale of the debtor's enterprise (business). Article 86 of the Law did not disclose the concept of " business", its relationship with the category "enterprise". In our opinion, it is hardly possible to put an equal sign between them. Business is both the organization of entrepreneurial activity at the enterprise, and the actual relations of the enterprise with its counterparties. The inclusion of these (specific ) elements is not a simple and indisputable matter.Therefore, we agree with the opinion of O.E. Romanov that only property elements can be included in an enterprise; phenomena called clientele, chances and reputation of an enterprise are of an actual, not legal, nature therefore, they remain outside the property complex - the enterprise.

So, the enterprise is considered primarily as an object of law, which is a property complex used to carry out entrepreneurial activities. In view of this (legal) definition, the concept of "enterprise" is not directly related to one or another organizational and legal form of a commercial or non-commercial organization. From this we can draw, in our opinion, an interesting conclusion: any entity (with or without the status of a legal entity) that carries out entrepreneurial activity is an enterprise. Say, for example, a branch, representative office, individual entrepreneur, peasant (farm) economy - a property complex called an enterprise.

Under the regime of the enterprise fall and property complexes financial and industrial groups (FIGs) and holdings. Since FIGs and holdings are a collection of legal entities, they own property. It is no coincidence that Decree of the Government of the Russian Federation of January 9, 1997 N 24 approved the Procedure for maintaining consolidated (consolidated) accounting, reporting and balance sheet of a financial and industrial group. So, in paragraph 4 of the named Procedure we read:

"Consolidated (consolidated) accounting and statistical reporting reflect property and financial position financial and industrial group, as well as the results of its investment activities".

Being an object of civil rights, the enterprise serves as a subject (object), in connection with which various kinds of problems arise. public relations. These relations are regulated not only by the norms of civil law, but also by other branches of law. It is necessary to harmonize the regulatory array, eliminate internal (within the framework of one law) and borderline (intersectoral) discrepancies in the field of legal regulation of relations related to the legal regime of an enterprise.

The problems of the enterprise as an object of law and a subject of entrepreneurial activity are sharply discussed in the legal literature. At the same time, various scientific concepts and views are put forward, including on the issue of legal recognition of an enterprise as a subject of law. Foreign researchers note that these concepts reflect the "social order" from production societies and companies, on the one hand, and banks, on the other. It is believed that manufacturing firms(companies) seek to limit their liability for liabilities to only the assets of the enterprise, and therefore it is in their interests to recognize the enterprise as a legal entity. In turn, it is in the interests of commercial banks to interpret an enterprise as a property (industrial and economic) complex that includes all elements, i.e. object of law.

And the last remark of the theoretical plan. The correlation of the concepts "enterprise", "legal entity", "organization" is a complex issue that needs to be special study. We confine ourselves to stating the following provisions. If an enterprise is primarily an object of civil rights, then an organization has a set of features that are necessary and sufficient to recognize its quality as a subject of law. In the literature, such features of organization are called as:

• internal organizational unity;
• independent participation of the organization in legal relations;
• the presence of a certain set of property and (or) the performance by the organization of certain property transactions (property isolation);
• independent responsibility of the organization for violation of the law.

And although these signs characterize the organization as a subject of tax law, they (the signs) can be used in relation to other organizations. Thus, the concept of "organization" covers, in our opinion, such collective formations as financial and industrial groups, holdings, concerns, consortiums, branches and representative offices of legal entities. In other words, the concept of an organization is much broader than the concept of a legal entity, which is rightly pointed out by representatives of various branch sciences.

In the field of tax law research, a significant contribution to the development of the idea and concept of the organization as a subject of tax law was made by prof. D.V. Vinnitsa. Rightly arguing that the category "legal entity" is not able to cover all the collective subjects of tax law, he offers the whole a complex of collective subjects of tax law that do not have power in the field of taxation, differentiate into three types of organization:

1. complex;
2. simple;
3. with limited tax rights.

With this classification, the number simple organizations all legal entities (Russian and foreign) and other corporate entities with civil legal capacity that do not have tax immunity in the Russian Federation and do not have territorially separate subdivisions will be included. Complex organizations include the above legal entities and other corporate entities with civil legal capacity (including if they include territorially separate divisions). And organizations with limited tax rights are understood as territorially separate subdivisions.

In view of the foregoing, it can be argued that a legal entity is a certain property of an organization. Therefore, it is correct to talk about the types of organizations that have the status of a legal entity and do not have such a status. This is the main classification of the organization.