What is a business entity? Individual entrepreneurs as subjects of entrepreneurial activity. Types of subjects - individual entrepreneurs and legal entities

Basic Concepts

Separation of the creation of one or more business companies with the transfer to it (them) of part of the rights and obligations of the reorganized company without terminating the latter. State registration of legal entities is an act of the authorized federal executive body, carried out by entering into the Unified State Register of Legal Entities information on the creation, reorganization and liquidation of legal entities, as well as other information about legal entities in accordance with the law. A commercial organization is a legal entity that pursues the goal of making profit as the main goal of its activities. Corporate legal entities are legal entities whose founders (participants) have the right to participate (membership) in them and form their supreme management body. The liquidation commission is a body created to carry out measures to liquidate a legal entity, as well as manage its current activities during a specified period. Liquidation of a legal entity is its termination without transfer in the order of universal succession of its rights and obligations to other persons. The organizational and legal form of a legal entity is a set of specific characteristics that objectively stand out in the system of general characteristics of a legal entity and significantly distinguish this group of legal entities from others, including the method of formation of property, organizational structure, relationships of participants, responsibility of participants to a legal entity and a legal entity to its participants and other subjects of business turnover. A deed of transfer is a document containing provisions for the succession of all obligations of the reorganized legal entity in relation to all of its creditors and debtors. The legal capacity of an entrepreneur is the ability to have rights and bear responsibilities for the purpose of carrying out entrepreneurial activities. Transformation is a change in the organizational and legal form of a legal entity. Merger is the termination of one or more legal entities with the transfer of all their rights and obligations to another legal entity. Division is the termination of a legal entity with the transfer of all its rights and obligations to newly created entities. Reorganization is a complex legal structure, the purpose of which is the termination and (or) creation of a legal entity, giving rise to the transfer of the rights and obligations of the reorganized legal entity (legal predecessor) in the order of succession to another legal entity (successor). Merger is the creation of a new legal entity by transferring to it all the rights and obligations of two or more legal entities with the termination of the latter. Entities engaged in business activities, individual entrepreneurs and commercial organizations whose main purpose is to make a profit; not being legal entities business associations(holding, simple partnership); non-profit organizations carrying out income-generating activities; separate divisions of commercial organizations carrying out business activities on their behalf. Subjects of entrepreneurial law are persons directly engaged in entrepreneurial activities, as well as the state, constituent entities of the Russian Federation, municipal entities of state bodies, self-regulatory organizations that regulate and control entrepreneurial and professional activity its members. Unitary legal entities are legal entities whose founders do not become participants and do not acquire membership rights in them. The founders of a legal entity are citizens, legal entities, public legal entities who, in accordance with the law, have made a decision to establish an organization. Establishment of a legal entity is the creation by one or more legal entities (founders) of a new entity that is not a successor to another legal entity. The corporate name of a legal entity is a means of its individualization. Legal liability in the field of entrepreneurship is a set of state coercive measures (sanctions) provided for by the rules of law and entailing negative consequences for the entrepreneur due to his violation of the rule of law or the legal rights and interests of other persons in the course of implementation entrepreneurial activity.

Concept and types of business entities

Academician V.V. Laptev wrote that subjects of business law are bearers of business rights and obligations. These rights and obligations are within the scope of direct exercise economic activity. The first sign of any subject of business law is that it has rights and obligations related to this branch of law.

Subjects of business law have entrepreneurial legal personality, that is, they can act in business transactions on their own behalf, have rights, obligations, and bear responsibility. Subjects of business law include persons directly engaged in business activities, as well as the state, constituent entities of the Russian Federation, municipalities acting on behalf of the relevant government bodies, self-regulatory organizations that regulate and control the entrepreneurial and professional activities of their members.

Among the controversial issues discussed in the legal literature is the possibility of classifying state and municipalities.

V. S. Martemyanov believed that the state - the Russian Federation, the constituent entities of the Russian Federation, as well as municipalities, using their property, carry out entrepreneurial activities, although the predominant activity in their activities is economic-organizing activity and regulatory influence in relation to all entrepreneurial entities^.

The point of view of specialists who do not classify state and municipal entities directly as business entities seems more reasoned.

V. S. Belykh rightly notes that in order to be a subject of entrepreneurial activity, the state, constituent entities of the Federation and municipalities must engage in entrepreneurial activity on a professional and permanent basis in order to systematically receive profit from the sale of products (performance of work, provision of services). Participation of public entities in economic activity through the creation of commercial and non-profit organizations (as well as participation in the affairs of privatized state and municipal property) cannot be assessed as participation in entrepreneurship.

Indeed, shareholders, by participating in the general meeting of the company, forming management and control bodies of the company and receiving dividends on shares, do not directly carry out entrepreneurial activities. The Constitutional Court of the Russian Federation does not consider participation in an economic society as an entrepreneurial activity, but qualifies it as other economic activity not prohibited by law.

Another ruling of the Constitutional Court of the Russian Federation formulated a completely definite legal position: within the meaning of the Constitution of the Russian Federation (Part 1, Article 34), the same person cannot combine power activities in the sphere of government and municipal government and business activities aimed at systematic obtaining arrived.

The above legal positions of the Constitutional Court of the Russian Federation are reflected directly in federal laws. So, in part 3 of Art. 15 of the Law on Protection of Competition prohibits combining the functions of state executive authorities and local government bodies with the functions of economic entities.

So, the activities of the state, subjects of the Federation and local governments are the implementation of the public functions assigned to them; state and municipal entities, being subjects of business law and exercising a regulatory influence on business relations, are not directly engaged in entrepreneurial activities, that is, they do not have the goal of systematically extracting profit from the performance of the functions assigned to them. This position is predominant in modern scientific doctrine.

The key subjects of business law are persons engaged in business activities.

Entities engaged in business activities, in particular, include individual entrepreneurs and commercial organizations whose main goal is to make a profit. They play the most important role in the use of capital and other types of material resources, in the creation of surplus product. In accordance with the law, individual entrepreneurs and commercial organizations are subject to state registration, have legal personality and act independently in their own name in business transactions.

Along with commercial organizations, non-profit organizations can carry out income-generating activities, but making a profit cannot be the only purpose of their creation. Non-profit organizations are created to achieve social, charitable, cultural, educational, scientific and managerial goals, as well as for other purposes aimed at achieving public benefits. The entrepreneurial interests of non-profit organizations should be limited only to a more complete use of the material base belonging to them and generating income for the implementation of their statutory goals; such organizations should not be interested in maximizing profits or increasing the market share of their product, which is typical for commercial organizations. If a non-profit organization begins to exhibit these interests, it must either be converted into a for-profit organization or liquidated.

The scientific literature has discussed the question of whether non-profit organizations can be considered business entities.

E. A. Sukhanov, considering the classification of legal entities into commercial and non-profit organizations, classifies the former as “permanent participants in professional turnover”, and accordingly excludes the latter from such. V.V. Dolinskaya, agreeing with this, argues that “non-profit legal entities are not included in the number of entrepreneurs.”^ S. D. Mogilevsky rightly believes in this regard: “Everyone is equal in the right to carry out entrepreneurial activities. But at the same time for commercial organization As a participant in entrepreneurial activity, this activity is mandatory, because its main goal is to make a profit. Consequently, commercial organizations always participate in entrepreneurial activities, since: a) this corresponds to the very nature of these types of legal entities (commercial); b) they are obliged to carry out such activities by virtue of the direct instructions of the law.

Non-profit organizations are not required to act as participants in entrepreneurial activities, since the law establishes as main goals other than making a profit. For a non-profit organization, being a participant in entrepreneurial activity is a right, not an obligation” (our italics - I. Sh.).

From our point of view, non-profit organizations carrying out income-generating activities, with certain reservations, can still be classified as business entities.

The charter of a specialized company of both types may contain other conditions characteristic only of these organizations. Thus, the charter of a specialized company may list cases not provided for by federal laws, in which the declaration and payment of dividends (distribution of profits) are not carried out, or a complete ban on the distribution of profits is established.

Thus, we have before us a form of economic society that has been deeply modified by a special law, in which there are neither bodies nor employees, in relation to which a significant number of institutions of corporate law are not applied (Article 15^ of the Law on the Securities Market).

A. V. Belitskaya, considering the question of whether the activity of a specialized company is entrepreneurial and whether in this regard it can be recognized as a subject of entrepreneurial activity, writes: “It is impossible not to note that a specialized company is more similar to a property complex or an investment pool than to a subject of law , meanwhile, this feature is characteristic of all collective investors, whose goal is to isolate the investor’s assets and combine them for the purpose of subsequent investment in projects. From a formal point of view, of course, a specialized company has rights and obligations and bears responsibility, therefore it can be recognized as a business entity, but at its core it is a technical entity created for the sole purpose of ensuring the functioning of an investment project or the securitization of assets.”

It seems that specialized companies should be considered as a special business entity, defined according to the criterion of the type of activity, having the target legal capacity defined in the law itself, and characterized by significant specificity.

To provide common characteristics of diverse business entities is not an easy task. I. V. Ershova, summarizing the scientific and educational literature, identified the following characteristics of business entities: legitimation, carried out through their state registration; presence of entrepreneurial legal personality; the presence of separate property; independent property liability.

Without objecting to highlighting these characteristics, we note that they apply only to certain types of business entities - legal entities and individual entrepreneurs and do not apply to another category of persons carrying out business activities without forming a legal entity, for example, to business associations, separate structural divisions of an organization.

Of interest from the point of view of identifying an independent group of business entities is the discussion related to the legal status of persons who are not registered as individual entrepreneurs, but, in fact, carry out entrepreneurial activities with their own labor, using their own property. These individuals are representatives of the “gray sector” of the shadow economy - they carry out activities permitted by law, but do not pay taxes on the income received, and are not registered with tax, pension and other authorities. As studies have shown, the number of such persons is significant, especially in the field of trade (23.2%), construction (17.4%), and agriculture (18.3%). According to M.I. Cleandrova, their number exceeds 30 million people. These are drivers who make their living as private taxi drivers, builders and repair specialists (houses, apartments, household plumbing, cars, computers, etc.), housekeepers, gardeners, nannies, including caregivers, designers, chain sellers of cosmetics and household utensils, market traders, rural residents who grow crops on their plots, produce livestock products, fishermen, hunters.

From a formally legal point of view, persons carrying out activities without state registration as individual entrepreneurs are not subjects of entrepreneurial activity, as follows from paragraph 6 of Art. 2 Civil Code of the Russian Federation. However, this part working population needs both formalization (“coming out of the shadows”) for the purposes of paying taxes and encumbrance with other obligations, and protection from the state, since it carries out legal activities, reduces the unemployment rate in the country and generally creates a positive social environment. In the current situation, the rights of such self-employed citizens cannot be adequately protected. For example, such unregistered citizens cannot apply for judicial protection in connection with the implementation of income-generating activities, since such a dispute is essentially economic, and therefore not within the jurisdiction of a court of general jurisdiction (Part 3 of Article 22 of the Code of Civil Procedure of the Russian Federation), but arbitration courts cannot accept such a case for consideration, since in accordance with Part 2 Art. 27 of the Arbitration Procedure Code of the Russian Federation, arbitration courts resolve economic disputes with the participation of organizations that are legal entities and citizens carrying out entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur acquired in the manner prescribed by law. In Part 2 of Art. 27 of the Arbitration Procedure Code of the Russian Federation, however, states that in cases provided for by the Code and other federal laws, arbitration courts resolve disputes with the participation of citizens who do not have the status of an individual entrepreneur. However, at present there are no federal laws that allow a citizen who does not have the official status of an individual entrepreneur, but is actually engaged in business activities, to apply for protection of his violated rights or legitimate interests to an arbitration court.

Let us note that, according to clause 4 of Art. 23 of the Civil Code of the Russian Federation, a citizen carrying out entrepreneurial activities without state registration as an individual entrepreneur does not have the right to refer to the transactions concluded by him that he is not an entrepreneur. The court may apply to such transactions the rules of the Civil Code of the Russian Federation on obligations associated with carrying out business activities. That is, citizens engaged in actual business activities without state registration are subject to the same strict rules of liability, regardless of guilt, as for officially registered entrepreneurs (Clause 3 of Article 401 of the Civil Code of the Russian Federation).

Speaking about the need to bring “out of the shadow” citizens carrying out actual entrepreneurial activities who are not registered as individual entrepreneurs, M. I. Cleandrov emphasizes: “It is possible, desirable and even urgently necessary to “softly” bring them out of the “shadow” and legalize their social, economic and legal status (first of all - at the stage of theoretical study of the issue - with the forces, means, methodology of the science of business law), in an organizational and legal form, for example, by analogy with micro-enterprises, as “micro-entrepreneurs”.

We express full solidarity with the expressed approach aimed at legalizing a new subject of business activity - persons, in the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment of the population in Russian Federation»referred to as “employed citizens”, who actually carry out legal business activities without being registered as individual entrepreneurs. For this business entity, a special preferential regime of taxation, reporting, and inspections by control and supervisory authorities should be established. Following the legalization of these entities in civil legislation, it will be necessary to provide for the specifics of regulating the activities of these persons in labor, administrative legislation, etc.

It seems important to distinguish business entities from other related concepts used by law. Thus, the Law on the Protection of Competition for the purposes of protecting competition, including to suppress monopolistic activities and unfair competition, uses the concept of “economic entity,” by which he means a commercial organization, a non-profit organization carrying out income-generating activities, an individual entrepreneur, another individual not registered as an individual entrepreneur, but carrying out professional income-generating activities, in accordance with with federal laws on the basis of state registration and (or) license, as well as by virtue of membership in a self-regulatory organization (Article 4). As follows from the above norm, the concept of “entrepreneurial entity” intersects with the concept of “economic entity”, however, these concepts are not identical. Thus, the number of economic entities includes persons engaged in professional activities, self-regulatory organizations, but they are not subjects of entrepreneurial activity, since they do not directly carry out entrepreneurial activities aimed at systematically generating profit. Moreover, these persons are subjects of business law.

The Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (Part 1, Article 2) uses another related concept - “economic entity”. The following are recognized as economic entities:

1. commercial and non-profit organizations;
2. government agencies, authorities local government, governing bodies of state extra-budgetary funds and territorial state extra-budgetary funds;
3. individual entrepreneurs, as well as lawyers who have established law offices, notaries and other persons engaged in private practice;
4. branches, representative offices and other located on the territory of the Russian Federation structural units organizations created in accordance with the legislation of foreign states, international organizations, their branches and representative offices located on the territory of the Russian Federation, unless otherwise provided by international treaties of the Russian Federation.

It is quite obvious that the category “economic entity” covers a much wider range of persons than “entrepreneurial entity” based on the purposes of legal regulation of the Law “On Accounting” - the establishment of uniform requirements for accounting, including accounting (financial) reporting, as well as the creation of a legal mechanism for regulating accounting (Article 1). Since this goal concerns various types of entities, INCLUDING those who are not subjects of entrepreneurial activity. The law introduces a new relevant concept of “economic subject”.

In particular, lawyers, notaries, arbitration managers who carry out professional activities, although not on a free basis, but still do not have systematic profit-making as the main goal of their activity, are not subjects of entrepreneurial activity. Business entities also do not include persons performing the functions of the sole executive body, members of collegial management bodies of organizations, for example, members of supervisory boards (boards of directors) of business companies, state corporations, since they do not carry out independent business activities, but exercise their competence through the adoption of acts the relevant body of the legal entity. Based on the concept of the body of a legal entity as its structurally separate part, the bodies of a legal entity are not its representatives and, accordingly, independent participants in legal relations; they act on behalf of the legal entity, creating for it rights, duties and responsibilities, personifying the legal entity and carrying out its will. This approach is based on current legislation (clause 1, article 53 of the Civil Code of the Russian Federation).

When distinguishing related concepts used in legislation, it is important to understand for what purposes these concepts are introduced and in what area of ​​legal relations they are applied.

The concept of “entrepreneurial entity” has a constitutive meaning specifically for business law, since it reflects the special goals and objectives of legal regulation for this area public relations. Recognition of a person as an entrepreneur determines the need to present to his activities special requirements on the part of the legislator, introducing restrictions in some cases, and preferences in some cases. Russian legislation contains many norms and even entire legal institutions that provide for special rules for the organization and activities of persons engaged in business activities. For example, entrepreneurs have the exclusive right to means of individualization of a legal entity, goods, and enterprises (Articles 1473-1540 of the Civil Code of the Russian Federation). The responsibilities of an entrepreneur, for example, include keeping records of business transactions for control and taxation purposes. An entrepreneur has the peculiarities of responsibility - he can be held accountable regardless of guilt (clause 3 of Article 401 of the Civil Code of the Russian Federation).

The structure of this textbook is based on the following classification of business entities:

1. according to the criterion of organizing entrepreneurial activity, individual and collective entrepreneurs can be distinguished;
2. According to the criterion of having entrepreneurial legal personality, individual entrepreneurs and legal entities that are subjects of entrepreneurial legal relations are distinguished, which may have rights, obligations, independently bear responsibility, be plaintiffs and defendants in courts, and non-legal entities (business associations, separate structural divisions of organizations that do not have the status legal entity)^;
3. according to the main purpose of activity, legal entities are distinguished that have the main goal of making profit (commercial organizations) and those that do not have such a goal (non-profit organizations);
4. According to the criterion of the type of activity, it is possible to distinguish legal entities that have significant features legal status, determined by the scope of activity, expressed in their special (target) legal capacity, for example, banking, insurance organizations, organizations in the investment field, including joint-stock investment funds, specialized financial companies and specialized project finance companies;
5. among the legal entities, those that can be recognized as small and medium-sized businesses are distinguished, due to which the entrepreneurial activity carried out by them has a special legal regulation, including the provision of government support measures"*.

Organizational and legal forms of business entities

The concept of organizational and legal form is used in current legislation in relation to a legal entity. So, according to paragraph 2 of Art. 48 of the Civil Code of the Russian Federation, a legal entity must be registered in the Unified State Register of Legal Entities in one of the organizational and legal forms provided for by the Civil Code of the Russian Federation.

The concept of “organizational and legal forms of a legal entity” is narrower in scope than the concept of “legal forms of business entities,” which, along with legal entities, include individual entrepreneurs, as well as non-legal entities - business associations and separate structural divisions.

This paragraph will be devoted to the organizational and legal forms of legal entities themselves engaged in entrepreneurial activities.

Considering the design of a legal entity, it should be noted that it is created primarily to formalize the collective interests of the participants; organizes internal relations between them, transforming their will into the will of the organization, allowing it to act in property transactions on its own behalf. G. F. Shershenevich wrote: “The concept of a legal entity plays, as it were, the role of “brackets”, which contain the homogeneous interests of a certain group of persons for a more simplified definition of the relationship of this collective personality to others. These connections can be of a public nature, such as a noble society, or private, such as a joint-stock partnership."

There are many theories of the origin of a legal entity, but the purpose of the legal structure of a legal entity is obvious: it allows, first of all, to limit the liability of its founders (participants), since the entrepreneurial risks of the founder (participant) of an organization are usually reduced to the amount of the contribution made to the capital of the corresponding organization.

3. A substantive and legal characteristic, meaning the ability of a legal entity to act in civil transactions on its own behalf, i.e., the ability to acquire and exercise rights on its own behalf, bear responsibilities, and also independently bear property liability for its obligations.

The proper name of a legal entity is a means of its individualization. In Art. 1473 of the Civil Code of the Russian Federation establishes that a legal entity that is a commercial organization acts in civil circulation under its corporate name, which is determined in its constituent documents and is included in the Unified State Register of Legal Entities upon state registration of a legal entity. According to paragraph 2 of this article, the company name of a legal entity must contain an indication of its organizational and legal form and the actual name of the legal entity, which cannot consist only of words denoting the type of activity. Thus, a company name must consist of two mandatory parts: an indication of the organizational and legal form and the name itself.

Under a company name, a legal entity acts in business transactions; therefore, a company name is a condition of its legal personality, the legal means with which it has the opportunity to acquire rights and assume responsibilities.

The name of the legal entity under which it appears in circulation can be compared with the common civil name of a person. It is impossible to transfer a company name, which is an element of legal personality, since its transfer will mean the “death” of a legal entity, just as it is impossible to “transfer the name” of a citizen; it can only be lost in connection with physical death. Even G.F. Shershenevich wrote: “If you look at a company as a trade name of a merchant and, accordingly, recognize the right to a company as a personal right, then its transferability should be completely rejected.” The imperative prohibition on the disposal of the exclusive right to a company name (including by alienating it or granting another person the right to use the company name) is contained in clause 2 of Art. 1474 Civil Code of the Russian Federation. Thus, the construction of the construction of a company name as an element of the legal personality of an organization is brought to its logical conclusion. The right to a company name is of a personal non-property nature.

The ability to acquire and exercise rights and bear responsibilities on one’s own behalf are elements of the legal personality of a legal entity,

In scientific doctrine, legal personality is traditionally recognized as a special legal quality or property established and recognized by law, which allows a person or organization to become a subject of law or a participant in a legal relationship. V. M. Syrykh calls legal personality a unique legal means of including subjects of social relations in the sphere of law and legal regulation^

Leaving outside the scope of this textbook the long-term academic discussion about the content of legal personality, we will adhere to the dominant point of view in legal doctrine that legal personality is a set of properties such as legal capacity (the ability to have rights and obligations provided for by law, i.e. the ability to be their bearer ) and legal capacity (or the ability of a subject, through his direct actions, to acquire and exercise legal rights and obligations, including tortious capacity)^ The legal personality of a legal entity in the most accepted and shared concept by us is a kind of unifying concept that reflects situations where legal capacity and legal capacity are inseparable in time, merge organically.

The legal capacity of legal entities is determined by their organizational and legal form and is general for commercial organizations, with the exception of unitary enterprises. In relation to business entities, V.V. Laptev spoke about complex legal personality, which covers both private law and public law aspects of business activity." Subjects of business law can and do participate in both civil and public rights about relationships. Business entities can act as participants in property turnover and at the same time are bearers of public rights and obligations.

From the point of view of the scope of powers, general legal capacity is contrasted with special legal capacity. If general legal capacity makes it possible to conduct any business activity, acquire any business rights and assume any responsibilities, then special legal capacity makes it possible to have not any rights, but only those corresponding to the goals and subject of the legal entity’s activities.

Non-profit organizations and unitary enterprises have special legal capacity. A special type of special legal capacity is exclusive legal capacity. It makes it possible to carry out a single type of activity without combining it with other types of activity. The activities of credit, insurance organizations, joint-stock investment funds, audit organizations, and some participants in the securities market are exceptional.

The legal capacity of subjects of business law is limited in connection with the licensing of certain types of activities, as well as in connection with the requirement of membership in a self-regulatory organization or the issuance by a self-regulatory organization of a certificate of admission to a certain type of work (Clause 3 of Article 49 of the Civil Code of the Russian Federation). Legal capacity may also be limited by the founders themselves in the organization’s charter.

In the opinion of M.I. Braginsky and K.B. Yaroshenko, “limitation of legal capacity exists in the following cases: 1) the founders (participants) establish a ban on carrying out certain types of activities in the constituent documents of a legal entity that is not subject to the right of special legal capacity; 2) in other cases to which the principle of special legal capacity does not apply (carrying out certain types of activities only on the basis of an appropriate permit (license); 3) engaging in certain types of activities only by a certain legal entity (for example, activities that constitute a state monopoly); 4) a ban on the implementation of certain types of activities by certain organizations, contained in the relevant act.”^.

As a conclusion, we note that it is necessary to distinguish between general, special, exclusive and limited entrepreneurial legal capacity.

The independence of property liability of a legal entity, or tortiousness, lies in the fact that a legal entity bears independent property liability for its obligations, i.e. the founders (participants) are not liable for the obligations of the legal entity, and the legal entity is not liable for the obligations of the founders (participants) . There may be exceptions to this fundamental rule of limiting liability established by the Civil Code of the Russian Federation or other law (Article 56 of the Civil Code of the Russian Federation).”

4. The procedural and legal characteristic of a business company as a legal entity is its ability to act as a plaintiff and defendant in court.

The scientific and educational literature provides numerous classifications of legal entities. In particular, legal entities can be classified:

• by purpose of activity - as commercial and non-profit organizations (Article 50 of the Civil Code of the Russian Federation);
• according to the content of legal capacity - as an organization with general, special, exclusive, limited legal capacity;
• according to the form of internal structure - as corporate and unitary organizations;
• according to the presence of economic dependence of one organization on another - as main and subsidiary companies (Article 67.3 of the Civil Code of the Russian Federation); controlling persons are also identified (clause 3 of article 53.1 of the Civil Code of the Russian Federation, articles 2, 10 of the Bankruptcy Law).

The central place in the classification of legal entities is occupied by the classification according to organizational and legal forms.

The organizational and legal form of a legal entity is a set of specific characteristics that are objectively distinguished in the system of general characteristics of a legal entity and significantly distinguish this group legal entities from everyone else. The criteria for identifying the organizational and legal forms of a legal entity are, in particular: the method of forming its property, organizational structure, relationships with participants and participants with each other, responsibility of participants to a legal entity and a legal entity to its participants and other subjects of business turnover.

As S. E. Zhilinsky writes, the organizational and legal form “concentratedly embodies the essential organizational and legal features that are common to legal entities and business organizations of various types.”

The list of organizational and legal forms of both commercial and non-profit organizations is contained in the Civil Code of the Russian Federation and is closed.

Differences in the organizational and legal forms of legal entities can be made according to numerous criteria, for example, by the method of formation of property, internal structure, composition and organization of activities of governing bodies. The organizational and legal form, in particular, reveals the scope and content of the rights of the founders (participants) of the organization. For example, participants in business partnerships, societies, business partnerships, production cooperatives have corporate rights of participation (membership) in the organization, as a rule, in proportion to their participation in the authorized capital. The founder has real rights to the property of state and municipal enterprises and institutions (Clause 3, Article 48 of the Civil Code of the Russian Federation).

The organizational and legal form of a legal entity determines the procedure for disposing of the organization’s property and the legal regime of the legal entity’s liability for its obligations. Installed general rule that legal entities, except for owner-financed institutions and government institutions, are liable for obligations with all the property belonging to them (Clause 1 of Article 56 of the Civil Code of the Russian Federation). In business companies, despite the fact that the legislation contains wording on the liability of participants in the amount of deposits made, in essence, their participants do not bear responsibility, except in cases provided for by law, but have business risks of losing the deposits made.

The source of regulation of the civil legal status of legal entities and the procedure for their participation in property circulation is the Civil Code of the Russian Federation. Features of the civil legal status of legal entities of certain organizational and legal forms, types and types, as well as legal entities created to carry out activities in certain areas, are established along with the Civil Code of the Russian Federation also by other laws and other legal acts(clause 4 of article 49 of the Civil Code of the Russian Federation).

The most significant classification of legal entities according to the form of their internal structure is their division into corporate and unitary (Table 1).

Legal entities whose founders (participants) have the right to participate (membership) in them and form their supreme body in accordance with clause 1 of Art. 65.3 of the Civil Code of the Russian Federation are corporate legal entities (corporations).

Legal entities whose founders do not become participants and do not acquire membership rights in them are unitary organizations.

Creation, reorganization and liquidation of business entities

The establishment of a legal entity is a complex legal structure, which consists of several legal facts: the decision to establish an organization, including approval of the constituent document; creating a property base (forming authorized capital, authorized capital, making contributions to property - depending on the type of organization); state registration of a legal entity.

The period for forming the property base of a newly created organization depends on the organizational and legal form of the legal entity. For example, in accordance with paragraph 4 of Art. 66.2 of the Civil Code of the Russian Federation, the authorized capital of a business company at the time of state registration must be formed by at least 3/4, and the rest - during the first year of activity of the business company, unless otherwise provided by special laws.

Guarantees of the rights of creditors, in particular, are ensured by information about the reorganization procedure, including notification of the federal tax authority about the beginning of the reorganization procedure, publication of a publication about the reorganization in funds mass media. The specified requirements provided for in Art. 60 of the Civil Code of the Russian Federation do not apply to reorganization in the form of transformation, since the rights of creditors cannot be affected by a change in the organizational and legal form of a legal entity while its property base remains completely unchanged.

Of utmost importance in providing guarantees to the creditors of the reorganized legal entity is the transfer deed, which contains provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors (clause 1 of Article 59 of the Civil Code of the Russian Federation).

The regulation of creditors' rights has undergone significant changes in the process of reforming the Civil Code of the Russian Federation. Yes, Art. 60 of the Civil Code of the Russian Federation as amended by Federal Law No. 99-FZ of May 5, 2014 provides for the following procedure for presenting and satisfying creditors’ claims, which no longer allows unscrupulous creditors to “block” the reorganization by presenting disproportionate and unreasonable demands, which was typical of previous practice. Now, if the creditor’s rights of claim arose before the publication of the first notice of the reorganization of a legal entity, he has the right to demand in court early fulfillment of the corresponding obligation by the debtor, and only if early fulfillment is impossible - termination of the obligation and compensation for related losses, unless otherwise provided by law or agreement between the creditor and the reorganized legal entity.

It is important that the right to demand termination of an obligation and compensation for losses is not granted to a creditor who has sufficient security. Security is considered sufficient if it is accepted by the creditor or if the creditor is issued an independent irrevocable guarantee by a credit institution whose creditworthiness does not raise reasonable doubts.

Presentation of claims by creditors is not grounds for suspending the reorganization procedure of a legal entity.

A novelty in Russian legislation is the establishment of joint liability to the creditor along with legal entities created as a result of reorganization, as well as persons who have the actual opportunity to determine the actions of reorganized legal entities if their actions (inaction) contributed to the occurrence of the adverse consequences specified in paragraph 3 of Article 60 Civil Code of the Russian Federation.

The rights of participants in corporate organizations are protected by the legal requirement that a decision on reorganization must be made by a qualified majority of votes or unanimously; in a joint stock company, in this case, not only ordinary but preferred shares are voting (clause 4 of article 32 of the Law on JSC).

Shareholders and participants of limited liability companies have the right to demand the redemption of their shares or interests if they voted against the decision on reorganization or did not take part in the voting.

Special rights are provided for in the reorganization of joint stock companies in the form of division and spin-off, which is often used to separate a business and can be subject to significant abuses. During reorganization in the form of division and allotment, each shareholder of the reorganized company must receive shares of each company created through the reorganization, which provide the same rights as the shares of the reorganized company belonging to him, in proportion to their number (clause 3.3 of Article 18, Article 19 of the Law on JSC).

Amendments made to the Civil Code of the Russian Federation by Federal Law No. 210-FZ of June 29, 2015, made another attempt to turn reorganization into a flexible tool for business restructuring. Thus, the charter of a non-public joint stock company in relation to certain categories (types) of shares may provide for the procedure (including disproportionality) for their conversion into shares or exchange for shares, shares, deposits of a legal entity created as a result of the reorganization (clause 8 of article 15 of the Law about JSC).

Protection of the rights of participants in a legal entity being reorganized, as well as other persons who are not participants in the legal entity, if such a right is granted to them by law, is ensured by the possibility of invalidating a decision on the reorganization of a legal entity upon their request. The list of entities that can make a corresponding demand must be synchronized with special laws governing the reorganization of legal entities of various organizational and legal forms. For example, in accordance with the Law on JSC (Article 49) and the Law on LLC (Article 43), participants who voted against or did not take part in the vote can challenge the decision on reorganization, which seems completely logical, since such a right is granted to all participants, including those who voted for the decision on reorganization, can destabilize the activities of the company and contribute to the abuse of their rights by unscrupulous participants. Recognition by a court of a decision on the reorganization of a legal entity as invalid does not entail the liquidation of the legal entity formed as a result of the reorganization, and is also not a basis for invalidating transactions made by such a legal entity (clause 1.2 of Article 60.1 of the Civil Code of the Russian Federation).

The court, at the request of a participant in a corporation who voted against the decision to reorganize this corporation or did not take part in the voting, may recognize the reorganization as invalid. Like the requirement to declare the reorganization invalid, the requirement to recognize the reorganization as failed is aimed at overcoming the defects of the reorganization, however, only the reorganization can be declared invalid corporate organization, since the plaintiff in this case can only be a member of the corporation who voted against the decision on reorganization or did not take part in voting on this issue. Reorganization is recognized as failed only in special cases, for example, when forged documents were submitted for registration and in fact the decision to reorganize the company was not made at all (Clause 1, Article 60.2 of the Civil Code of the Russian Federation). One of the consequences of recognizing the reorganization as failed, in particular, is the restoration of legal entities that existed before the reorganization, with the simultaneous termination of legal entities created as a result of the reorganization. Note that the legal mechanism for the restoration of a legal entity is new for the domestic legislator and still requires significant improvement.

Liquidation of business entities. Describing liquidation, B.B. Cherepakhin wrote: “When liquidating a legal entity, the latter ceases to exist, and therefore its activities, completely and finally, leaving no universal legal successors.”

Without defining liquidation as a legal phenomenon, the Civil Code of the Russian Federation in Art. 61 establishes that the liquidation of a legal entity entails its termination without transfer in the order of universal succession of its rights and obligations to other persons. It follows from the above that singular succession during liquidation is still possible, although it is an exception and not the general rule. Such an exception is contained, for example, in Art. 419 of the Civil Code of the Russian Federation: according to the requirements of a liquidated legal entity for compensation for harm caused to life or health, execution may be entrusted to another person.

The current legislation knows two main legal regime liquidation: voluntary and forced liquidation regime.

Liquidation is voluntary by decision of the founders (participants) or a body of a legal entity authorized by the constituent document, including due to the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created.

The decision to liquidate is one of the most significant corporate solutions, it is therefore not surprising that the legislation requires that in order to make this decision a qualified majority of votes is required, for example, at least 3/4 of the votes of shareholders - owners of voting shares participating in the general meeting of shareholders (clause 4 of Article 49 of the Law on JSC) or even unanimity of all participants of the corporation (clause 8 of article 37 of the LLC Law).

Forced liquidation is carried out by court decision on a number of grounds provided for by law, which can be classified as follows.

1. According to the claim government agency or a local government body, to which the right to submit a demand for liquidation of a legal entity is granted by law as a sanction for an offense, in particular:

• in connection with gross violations of the law committed during its creation, if these violations are irreparable;
• in the case of a legal entity carrying out activities without proper permission (license) or in the absence of mandatory membership in a self-regulatory organization or a certificate of admission to a certain type of work issued by a self-regulatory organization required by law;
• in the case of a legal entity carrying out activities prohibited by law, or in violation of the Constitution of the Russian Federation, or with other repeated or gross violations of the law or other legal acts.

The bodies authorized to file a claim for forced liquidation, in particular, are registration authorities (clause 2 of Article 25 of the Law on Registration of Legal Entities), antimonopoly authorities (subparagraph “e”, clause 6 of Part 1 of Article 23 of the Law on Protection competition), tax authorities (clause 1 of article 31 of the Tax Code of the Russian Federation).

It should be emphasized that the decision to forcibly liquidate a legal entity is an extraordinary decision. The Constitutional Court of the Russian Federation, in Resolution No. 14-P of July 18, 2003, formulated the legal position that this sanction cannot be applied on a formal basis alone. The rule on forced liquidation by court suggests that “repeated violations of the law must be so significant as to allow the arbitration court - taking into account all the circumstances of the case, including an assessment of the nature of the violations committed by the legal entity and the consequences caused by them - to make a decision on the liquidation of the legal entity in as a measure necessary to protect the rights and legitimate interests of other persons.” The exclusivity of the measure for the forced liquidation of a legal entity is emphasized in paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25: such an exceptional measure must be proportionate to the violations committed by the legal entity and the consequences caused by them.

2. At the claim of the founder (participant) of a legal entity in the event that it is impossible to achieve the goals for which it was created, including in the event that the activities of the legal entity become impossible or significantly hampered.

For business entities, this basis is of particular interest, because the goal of a commercial organization is to make a profit and, if the participants are in a state of protracted corporate conflict and therefore cannot achieve this goal, one of the participants may file a claim for the liquidation of such an “ineffective” corporations.

The Supreme Court of the Russian Federation in Plenum Resolution No. 25 dated June 25, 2015 indicated: “The court may satisfy such a requirement if other founders (participants) of a legal entity evade participation in it, making it impossible to make decisions due to the lack of a quorum, as a result of which it becomes impossible to achieve the goals for which the legal entity was created, including if the implementation of the activities of the legal entity becomes impossible or becomes significantly more difficult, in particular due to the long-term inability to form the bodies of the legal entity.

Likewise, satisfaction of this requirement is possible in the event of a long-term corporate conflict, during which significant abuses were committed by all participants in a business partnership or company, as a result of which its activities are significantly hampered.

Liquidation of a legal entity as a method of resolving a corporate conflict is possible only if all other measures to resolve the corporate conflict and remove obstacles to the continuation of the activities of the legal entity have been exhausted or their use is impossible” (clause 29).

The list of grounds for forced liquidation is not limited - in accordance with sub. 6 clause 3 art. 61 of the Civil Code of the Russian Federation, a legal entity may be liquidated in other cases provided for by law.

The judicial body that has made a decision on forced liquidation does not carry out independent liquidation actions - by a court decision, the duties to carry out the liquidation of a legal entity can be assigned to its founders (participants) or to the body authorized to liquidate the legal entity by its constituent document.

In addition to the judicial procedure, there is also an administrative procedure for the forced liquidation of a legal entity, aimed at preventing the existence of “dummy companies” registered in the Unified State Register of Legal Entities, but not actually carrying out activities. Now this possibility is provided along with Art. 21.1 of the Law on Registration of Legal Entities, also Art. 64.2 of the Civil Code of the Russian Federation, according to which a legal entity that, during the 12 months preceding its exclusion from the register, did not submit reporting documents provided for by the legislation of the Russian Federation on taxes and fees, and did not carry out transactions on at least one bank account, is considered to have actually ceased your activities. Such a legal entity is subject to exclusion from the Unified State Register of Legal Entities in the manner prescribed by the law on state registration of legal entities.

Liquidation of a legal entity is carried out according to the procedure provided for by law, the purpose of which is to prevent the possibility of infringement of the rights and legitimate interests of all participants in business transactions and, above all, employees, creditors, participants of the liquidated entity, as well as public law interests that may be affected by liquidation.

With regard to protecting the interests of creditors, we note that from the moment a decision is made to liquidate a legal entity, the deadline for fulfilling its obligations to creditors is considered to have occurred (clause 4 of Article 61 of the Civil Code of the Russian Federation).

Liquidation of an organization includes the following stages.

1. Notification of the Federal Tax Service of Russia by participants or an authorized body of a legal entity about the decision made for inclusion in Unified State Register of Legal Entities that the legal entity is in the process of liquidation; publication of information about the adoption of a decision on liquidation in the manner prescribed by law within three days from the date of adoption of the decision.
2. Appointment of a liquidation commission, to which authority to manage the affairs of a legal entity is transferred. The liquidation commission carries out measures to liquidate a legal entity, as well as manage the current activities of the company during the specified period. In essence, the powers of the will-expressing body of the organization are transferred to the liquidation commission. It must act in the interests of the organization, as well as its creditors, in good faith and reasonably (clause 4 of article 62 of the Civil Code of the Russian Federation). The need to act in good faith and wisely in the interests of not only the organization, but also its creditors distinguishes members of the liquidation commission from members of the organization’s management bodies.
3. Publication by the liquidation commission in special media of a message about the liquidation of a legal entity, about the procedure and period (at least two months) for filing claims by its creditors.
4. Taking measures by the liquidation commission to identify creditors and receive receivables, as well as notifying creditors in writing about the liquidation of a legal entity.
5. Drawing up of an interim liquidation balance sheet by the liquidation commission after the deadline for submitting claims by creditors. The interim liquidation balance sheet contains information about the composition of the property of the liquidated legal entity, the list of claims presented by creditors, the results of their consideration, as well as the list of claims satisfied by a court decision that has entered into legal force, regardless of whether such claims were accepted by the liquidation commission.
6. Approval of the interim liquidation balance sheet by the founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity.
7. The sale of the property of a legal entity being liquidated at auction, carried out by the liquidation commission, if the funds available to the legal entity being liquidated (except for institutions) are insufficient to satisfy the claims of creditors.
8. Payment of sums of money to creditors of a liquidated legal entity by the liquidation commission in the order of priority established by Art. 64 of the Civil Code of the Russian Federation, in accordance with the interim liquidation balance sheet.
9. Drawing up a liquidation balance sheet by the liquidation commission after completing settlements with creditors.
10. Approval of the liquidation balance sheet by the founders (participants) of the legal entity or the body that made the decision to liquidate the legal entity.
11. Transfer of the remaining property of a legal entity after satisfying the claims of creditors to its founders (participants) who have proprietary rights to this property or corporate rights in relation to the legal entity, unless otherwise provided by law, other legal acts or the constituent document of the legal entity.
12. Entering information about the termination of a legal entity in the Unified State Register of Legal Entities.

Liquidation of a legal entity can be transformed into a bankruptcy procedure, since the legislation contains an imperative requirement for the liquidation commission to apply to the arbitration court with an application for bankruptcy of the legal entity if the property of the liquidated legal entity is insufficient to satisfy the claims of creditors or if there are signs of bankruptcy of the legal entity (p 4 Article 63 of the Civil Code of the Russian Federation).

The current legislation regulates in detail the priority in satisfying the claims of creditors of a legal entity: first of all, the claims of citizens for obligations related to causing harm to life and health are satisfied; in the second place - settlements for the payment of severance pay and wages, in the third - settlements for mandatory payments to the budget and extra-budgetary funds, in the fourth place - settlements with other creditors.

A guarantee of the rights of creditors, in particular, is the opportunity established for them, in the event of a liquidation commission’s refusal to satisfy claims or evasion of their consideration, to file a claim in court to satisfy a claim against a legal entity (Article 64.1 of the Civil Code of the Russian Federation).

The creditor also has the opportunity to make claims for compensation of losses to members of the liquidation commission in the manner and on the grounds provided for in Art. 53.1 of the Civil Code of the Russian Federation for members of the organization’s management bodies. Claimants upon request to members of the liquidation commission may also be the founders (participants) of a liquidated legal entity acting in the interests of the legal entity. In the latter case, there is a construction of an indirect claim.

The concept of a business entity

Business entities are persons who directly carry out professional business activities on an ongoing basis.

Definition 1

A business entity is an officially registered person who owns property on the basis of which he conducts business activities, is a bearer of rights established by law, and bears independent property liability. Also, some types of activities can only be carried out by a business entity with a license.

Like any other economic unit, a business entity is characterized by a number of key elements, the characteristics of which are given directly in the definition: separate property, registration carried out in the prescribed manner, direct management of activities, economic competence, property liability of an independent nature.

Types of subjects - individual entrepreneurs and legal entities

Individual entrepreneurs carry out entrepreneurial activities without forming a legal entity. Information on the acquisition or termination of the status of an individual entrepreneur is recorded in a special state register. To register, an individual must submit a certain list of documents and an application to a special registration authority. Registration is carried out within 5 days from the date of application and submission of the application.

Legal entities are organizations with separate property that can acquire civil rights and obligations on their own behalf, as well as act as a plaintiff or defendant in arbitration court. Legal entities, in turn, are divided into commercial and non-profit organizations.

The activities of commercial organizations are aimed at generating profit and distributing it, while non-profit organizations do not pursue such a goal. Non-profit organizations are divided into charitable, public and religious organizations, as well as consumer cooperatives.

Types of commercial organizations

Commercial organizations are divided into:

Business partnerships are divided into general and team partnerships, whose authorized capital is divided between the participants into shares.

Participants in general partnerships engage in entrepreneurial activities on the basis of an agreement concluded between them and bear full responsibility for the obligations of the partnership with the property belonging to them.

In addition to the participants engaged in entrepreneurial activities and bearing full responsibility for their property, command partnerships (on faith) include so-called investors who do not carry out activities and are liable only to the extent of the treasures contributed by them.

Business companies are divided into joint stock, limited and additional liability.

The founding (authorized capital) of limited and additional liability companies is divided among the participants into shares (the size is determined by the constituent document). The difference is that additional liability implies incurring liability for the risks of the enterprise in an amount that is a multiple of the value of the contribution made.

The authorized capital of joint stock companies is divided among the participants into a certain number of shares, while the participants themselves are not liable for the obligations of the company and bear the loss risk only within the limits of the value of the shares they own.

Production cooperatives are voluntary associations of citizens for joint activities (production or other economic), based on their personal labor participation and the pooling of their property shares;

• State and municipal enterprises are divided into unitary and state-owned enterprises. Unitary enterprises are organizations that are not vested with ownership rights over the property assigned to them.

In the process of entrepreneurial activity, people and organizations inevitably enter into some kind of relationship with each other. If the rules of behavior (“game”) in these relations are regulated (established) by the rules of law, then these relations are called legal relations. The largest set of legal norms regulating entrepreneurship is civil law. But entrepreneurship is regulated by tax, administrative, criminal, and other branches of law. Civil legal relations are when they are relations between equal entities that are not subordinate to one another, and the relations arise regarding property and related objects (see more details Shevchuk D.A. Creating your own company: Professional approach. – M.: GrossMedia: ROSBUKH, 2007).

Participants and subjects of civil legal relations are:

· individuals (citizens);

· legal entities;

· state – Russian Federation, constituent entities of the Russian Federation (republics, territories, regions), municipalities.

Let us make some classification of these subjects from the point of view of entrepreneurship problems.

1. Citizens can be divided into two groups:

a) just citizens;

b) citizens – individual entrepreneurs:

2. Legal entities, i.e. ORGANIZATIONS WITH CERTAIN CHARACTERISTICS (property, liability, rights, etc.), can be divided into two large groups:

a) commercial organizations;

b) non-profit organizations.

You should immediately dot the “i”: both commercial and almost all non-profit organizations have the RIGHT to engage in entrepreneurial activities.

Unfortunately, the term “Organization” does not have a legally defined definition. It is important for us to note that not all organizations can engage in entrepreneurial activities, enter into transactions and enter into contracts.

Any legal entity has the right to create branches, divisions, and representative offices. These are also organizations, but they are not legal entities and do not have the right to enter into transactions with anyone. They can enter into transactions only on behalf of a legal entity or citizen under their power of attorney. Public non-profit organizations can also be created without the status of a legal entity, and also cannot enter into transactions on their own behalf.

In practice, this must be taken very seriously, since any transaction, any agreement concluded with a non-legal entity is invalid.

The classification of state entities is indicated above and it remains to be noted that the possibility of engaging in entrepreneurial activity is determined by the laws and charters (regulations) of these entities.

It is characteristic, for example, that the Government of the Russian Federation is not a legal entity and cannot act as a defendant in court, i.e., it is not subject to jurisdiction.

Thus, business entities are:

· citizen-entrepreneurs;

· organizations – legal entities;

· sometimes the state, represented by its bodies.

The main legal requirements for a business organization are as follows.

With the adoption of the Law “On Enterprises and Entrepreneurial Activities” in 1991, the term “enterprise” became synonymous with an economic entity of any organizational and legal form. The new Civil Code, in force since 1994, clarified this concept. Now the term “enterprise” is understood either as a generalized concept, which includes, for example, a plant, factory, poultry farm (i.e., a complex of property, intellectual, human resources), or as economic entities of specific organizational and legal forms, having the right of economic management or operational management on the property they own (state and municipal enterprises, state-owned enterprises).

The general term denoting an independent economic entity is a legal entity. Article 48 of the Civil Code of the Russian Federation defines a legal entity:

“A legal entity is recognized as an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and defendant in court.”

Let's take a closer look at this definition.

As is clear from the text of this article, a legal entity is something that has four characteristics:

· organizational structure;

· presence of separate property;

· able to acquire and exercise rights on its own behalf;

· able to be a defendant and plaintiff in court.

Typically, the concept of a legal entity is depicted as follows:

But the question arises - where does everything come from?

For example. If I and two comrades have decided that we are creating an organization in which I will be the main one and I have 100 rubles for the organization’s expenses, then who and how will decide whether this organization will be responsible for their obligations? Can she speak in court? Can she make deals?

Who gives the answers to these questions? Who decides all this? How and in what way?

The whole point is that organizations A) wishing to become a legal entity must of their own free will acquire the first two features: organizational unity (it follows and is determined by what the founders write down in the charter) + property independence (through the authorized capital, fund, estimate or obligation, the presence of which is proven by the decision and actions of the founders on their formation), B) becoming legal person as a result of state registration of an organization by the will of the law acquires the remaining signs: the right to enter into transactions, the right to be a plaintiff...

Therefore, the process of the emergence of a legal entity can be depicted by the following more visual diagram:

The term “organization” assumes that a legal entity has a certain structure, and this, in turn, provides for the presence of an authorized management body with one or another competence, established rules for relationships within the organization and interaction of the organization with external entities. That is why the law provides for clearly defined forms of organizations and the content of their constituent documents.

An organization will acquire the status of a legal entity if it has property independence and isolation. On the one hand, it is not liable for the debts of its founders (participants); on the other hand, the founders (as a rule) are not liable for the debts of a legal entity (subsidiary, additional liability of the founders for the debts of the organization arises only if they are guilty of bankruptcy, and this special conversation).

An organization, as a legal entity, must be liable for its debts with its own property. And the more any form of organization is connected with property activities, the more strictly property independence should be defined. If for a public organization the law simply provides for ownership of property, then for commercial organizations it is determined minimum size obligatory property – authorized capital– and the procedure for its regular restoration.

And, finally, if an organization has the indicated characteristics, it, as a legal entity, acquires the opportunity on its own behalf to act in the field of civil transactions, that is, to enter into transactions, to be a plaintiff and defendant in court.

Naturally, the organization must undergo state registration, during which the presence of the necessary signs is identified and confirmed, including seemingly secondary ones (the presence of its own name, the presence of an address, etc.). After all, for example, public organization can be created and operate without state registration, but it will receive the rights of a legal entity only after state registration.

Thus, the definition of a legal entity contains two requirements for an organization, one procedural requirement (registration) and the rights arising from its status - the last two features (see more details Shevchuk D.A. Creating your own company: A professional approach. - M.: GrossMedia : ROSBUKH, 2007).

The presence of all these signs of a legal entity in an organization must be enshrined in the constituent documents (constituent agreement, charter).

According to the Deputy general director INTERFINANCE Shevchuk Denis, despite the edifying insistence with which we prove the difference between the term “enterprise” and the concept of “legal entity”, in the majority legal documents The list of “enterprises, organizations, institutions” is also widely used in cases where a certain legal entity is meant. Therefore, we will use the terms synonymously: enterprise, organization, firm (depending on the terms used in the relevant regulatory documents), meaning by them an organization as a legal entity (see in more detail D.A. Shevchuk, Creating your own company: A professional approach. - M.: GrossMedia: ROSBUKH, 2007).

Memo: all issues discussed in this chapter are regulated by the Civil Code of the Russian Federation, Chapter 2, paragraphs 1–5.

Classification, that is, dividing a certain mass of objects or phenomena into parts, must, as is known, be carried out in compliance with three rules:

· unity of the basis of division (it is impossible to divide films into interesting, color and foreign ones);

· completeness of division (you cannot divide people into blondes and brunettes - brown-haired and bald people will remain “restless”);

· the significance of the basis of division (if we are interested in the carrying capacity of the vessel, then we should not classify ships according to whether their captain is single or married).

Remembering these rules, let us classify organizations of legal entities on three grounds.

A) Based on whether the main goal of creating and operating a legal entity is the intention to make a profit, they are all divided into two groups:

· commercial organizations that can be created in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises;

· non-profit organizations that can be created in the form of consumer cooperatives, public or religious organizations (associations), owner-financed institutions, charitable and other funds, as well as in other forms provided by law.

B) By the type of rights that the founders (participants, shareholders) have in relation to the legal entity, All legal entities are divided into three groups:

· legal entities in respect of which their participants have rights of obligations (business partnerships and societies, production and consumer cooperatives, non-profit partnerships, autonomous non-profit organizations);

· legal entities to whose property their founders have ownership or other proprietary rights (state and municipal unitary enterprises, including subsidiaries, as well as owner-financed institutions);

· legal entities in respect of which their founders (participants) do not have property rights(public and religious organizations (associations), charitable and other foundations, associations of legal entities (associations and unions).

For clarity, we present the second classification in the form of a diagram:

It should be remembered: the founders of business companies and partnerships are not their owners or owners. This is their brainchild, but not part of them! The presence of a share in the authorized capital only determines that a legal entity owes something to its founder. The founder cannot arbitrarily take away property from a legal entity.

The Law of the RSFSR “On Enterprises and Entrepreneurial Activities” contained a certain paradox: the enterprise, on the one hand, was the owner of its property, but its founders were considered the owner of the enterprise. Therefore, the property of the enterprise had, as it were, two owners at two levels: the enterprise itself and its founders.

This paradox was eliminated by the Civil Code of the Russian Federation.

B) According to the organizational and legal form (OPF) legal entities are divided into:

commercial organizations

1. Business partnerships and companies, including:

· general partnerships;

limited partnerships;

· limited liability companies;

· additional liability companies;

· joint-stock (closed and open) companies.

2. Production cooperatives.

3. Unitary enterprises:

· state;

· municipal;

· state-owned.

non-profit organizations

1. Public associations:

· organizations;

· institutions;

· movements;

· public initiative bodies;

· unions of public associations.

2. Religious organizations.

4. Non-profit partnerships.

5. Institutions.

6. Autonomous non-profit organizations.

7. Associations (unions).

8. Consumer cooperatives.

9. Homeowners' associations.

Unlike commercial organizations, the list of non-profit organizations is open, i.e. federal laws may provide for their other organizational and legal forms.

It is impossible, in our opinion, to classify subsidiaries and dependent business companies as a special organizational and legal form, since they are created in one of the specified OPFs and differ only in the degree of dependence on other organizations.

It should also be recalled once again that any legal entity has the right to form representative offices, branches, branches, workshops, but without the status of a legal entity and without the right to be a party to a transaction on its own behalf.

General remarks

To understand the essence and basis of the differences between commercial organizations, one should recall the history of the emergence and development of entrepreneurial activity.

At first, the artisan, the merchant, relying on his subsistence economy and property, using his abilities, produced goods.

Then, in connection with the expansion of market needs and the need for cooperation, the artisan and trader began to unite with his colleagues, combining not so much capital as labor resources(personal and hired).

As such associations developed and their size increased, they began to unite not so much labor as capital.

This process can be characterized by the following graph:

This graph shows the ratio of labor and capital combined into various forms commercial organizations. Obviously, the less importance is attached to the labor contributions of the participants, the more developed the form of association can be used by the participants.

From the graph it becomes clear why the participants in a general partnership only enter into an agreement, and the shareholders only approve the charter: in a joint-stock company, only capital is pooled and there is no particular need to regulate the relations of shareholders among themselves.

This schedule also reflects the responsibility of the participants for the debts (obligations) of the organization they created.

Business partnerships differ from business societies in that partnerships unite persons (individuals and/or legal entities), and companies unite capital. This means that participants in societies MAY not participate in its activities, but participants in partnerships MUST participate.

From this, as well as from the fact that participants in partnerships bear full responsibility for the debts (obligations) of the partnership, it follows that the participation of one person in several partnerships is prohibited.

Only individual entrepreneurs can be citizens-participants of partnerships.

It should be noted that the legislation uses three terms to define participants in partnerships and companies: founder, participant, shareholder. The founder is a participant recorded in the constituent documents during the state registration of the organization, and the features of his status, as a rule, disappear after registration. Participant - an individual or legal entity that has a share, a share of the authorized capital of a partnership or company. A shareholder is a participant in a joint stock company.

Basic rights and obligations of participants in partnerships and companies

Essential characteristics of organizational and legal forms of commercial organizations.

General partnership

A form that is practically not used in Russia. A general partnership assumes full joint liability of the founders (participants) for the obligations of the partnership with ALL their property and belongings. In case of joint and several liability of debtors, any creditor has the right to collect debts from any debtor in full (and the joint and several debtors will then deal with each other).

But in conditions of legal instability, tax and administrative lawlessness, it is undesirable to put all your property at risk of bankruptcy.

If you encounter a general partnership as a counterparty, then this should alert you! Most quickly, when you check, you will find a fictitious partnership that is trying to tempt you into a dubious deal with the form of such serious responsibility.

Participants in a general partnership are individual entrepreneurs or legal entities who have pooled their efforts and capital to conduct joint business activities.

The law does not establish a minimum amount of the share capital of a general partnership, since creditors, if this capital is insufficient, foreclose on all the property of the partnership participants.

Conducting partnership affairs (management, concluding transactions) is possible in several options:

· each participant himself enters into transactions for which everyone is responsible;

· all transactions are concluded by unanimous decision of the participants;

· all transactions are concluded by decision of the participants, adopted by a majority of votes;

· one or some participants can enter into transactions;

· a combination of these methods depending on the type and scale of the transaction.

Limited partnership

The main external difference between this form of organization and a general partnership is that it has two types of participants.

Some participants bear full (unlimited) liability and have the right to manage the partnership, other participants-investors (limited partners) simply invest their capital in the partnership, have the right to receive profits, but are not liable for the obligations of the partnership (except for the risk of loss of investment) and do not participate in business management. Investors don't even sign memorandum of association about the creation of this partnership. The investor may not be an individual entrepreneur.

This form is transitional from partnerships to companies, firstly, in terms of the degree of responsibility: from full liability for the first type of participants to the limited liability of participant-investors, and, secondly, in terms of the degree of participation: from personal participation to capital participation (see. more details Shevchuk D.A. Creating your own company: A professional approach. - M.: GrossMedia: ROSBUKH, 2007).

It also combines the serious advantages of partnerships and societies. The issuer - the capital investor - takes less risk if the manager(s) bear full responsibility.

Limited Liability Company (LLC)

A form of capital pooling, combined with the possibility of personal participation in the activities of the organization. That is why LLC is the most common form.

This organizational form requires the creation of management bodies, and therefore the development of a charter regulating issues of internal and external activities of the company.

The management system is at least two-level: the general meeting of participants and the executive body. A collective executive body (board, directorate) is possible, but there must be an official acting on behalf of the organization without a power of attorney, on the basis of official authority.

Participants are liable to the extent of their contributions to the authorized capital, but there is an exception to this rule.

According to Article 56 of the Civil Code, “if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions, on such persons in case of insufficiency of the legal entity’s property, subsidiary liability for its obligations may be imposed.” Vicarious liability is one in which, in the absence of sufficient property of a legal entity, the debtors' claims are made against the participants, and they pay with their property (see more details Shevchuk D.A. Creating your own company: A professional approach. - M.: GrossMedia: ROSBUKH, 2007).

Additional liability company (ALC)

It differs from a limited liability company in that the participants are liable not only within the authorized capital, but also in addition to a certain amount that is a multiple of the authorized capital. For example, the authorized capital of an ALC is 10 million rubles. The charter stipulates that the company bears additional liability in the amount of five times. This means that if the company’s property is insufficient, creditors can receive 50 million rubles from the participants, and from any of them, since the participants are jointly and severally liable.

Joint Stock Company (JSC)

The most detailed legislatively regulated form of organization, since in addition to the Civil Code, the Law of the Russian Federation “On Joint-Stock Companies” is in force.

The essence of creating a joint-stock company is the founder’s announcement of the creation of a joint-stock company, i.e. the issuance of securities (shares) for sale, and an offer to a certain or indefinite circle of persons to buy these securities, thereby forming the authorized capital.

This is how a joint stock company differs from an LLC, during the creation of which the contributions (contributions) of all founders are clearly defined and there is no assumption in the charter that the authorized capital CAN increase to a certain amount.

The next difference from an LLC is that in a limited liability company there is the possibility of “withdrawing” from the membership with the withdrawal of one’s share of the property. In a joint stock company, this cannot be possible, because when “entering” the company, the participant (shareholder) did not contribute property, but bought shares. Accordingly, he, as the owner of the securities, has the right to sell them to someone who wants to buy them, but does not have the right to demand that the company return to him the property (or its value) of the company. This provision prevents the risk of undermining the viability and capacity of the society if participants leave.

Another difference between an LLC and a JSC is that in a joint-stock company there is always the possibility of alienating shares to third parties (not shareholders), and the charter of an LLC may contain a ban on the alienation of shares to third parties. To compensate for this limitation, as already noted, a participant in an LLC may, upon exit, demand the value of his share of property from the company.

The Law of the Russian Federation “On Joint-Stock Companies” has quite seriously changed the legislation regulating this form of organization.

On the one hand, the law quite thoroughly spells out guarantees and mechanisms for protecting the rights of shareholders, regardless of the size of the block of shares they own (For example, the right of a shareholder to sell his shares to the company if he disagrees with the decision general meeting, detailed regulation of the procedure for preparing and holding a general meeting, etc.).

According to Deputy General Director of INTERFINANCE Shevchuk Denis, measures are provided to protect the management of the organization from the interference of incompetent shareholders when resolving private production issues, from the possibility of making decisions that bring short-term income and undermine the development of production (For example, limiting the competence of the general meeting to a range of strategic issues, restrictions on payment of dividends, consideration at a meeting of a number of issues only on the recommendation of the Board of Directors, etc.).

Producer cooperatives

A production cooperative is recognized as a voluntary association of citizens (participation of legal entities is also allowed) on the basis of membership for joint production or other economic activities based on their personal labor and other participation and the association of property shares by its members (participants).

As a rule, membership in a cooperative is based on personal labor, the payment of a property contribution determined by the charter, the equality of each member (each has only one vote), and the dependence of income on labor participation. Members of a cooperative are not entrepreneurs (as in partnerships).

Members of a cooperative bear subsidiary liability for the obligations of the cooperative in the amount and in the manner prescribed by the law on production cooperatives and the charter of the cooperative (Article 107 of the Civil Code of the Russian Federation).

State and municipal unitary enterprises

The main feature of these forms is that they are not the owners of their property. The state or municipalities transfer property to these enterprises on the right of economic management, i.e., with restrictions on the right to dispose (transfer, alienate) property. Therefore, when determining the status of these enterprises and their powers when concluding transactions, it is necessary to take into account the rules (standards) of Article 294–300 of the Civil Code of the Russian Federation.

The term “unitary” in the name of these enterprises determines the indivisibility of their property, i.e., the complete absence of the possibility of dividing the authorized capital into shares, shares, etc. Therefore, it is impossible for other legal entities or individuals to “take part” or receive a share in such an enterprise. By the way, the term “authorized capital” in these enterprises has been transformed into “authorized capital”.

A state unitary enterprise differs from its counterparts in that it is based on property that is federally owned, and in that the property is transferred to operational management, and not to economic management. It follows from this that the owner - the Russian Federation - is responsible for the debts of a state-owned enterprise, while the owner of a state and municipal enterprise is not responsible for its debts.

Unlike most commercial organizations, enterprises have special rather than general legal capacity. The consequence of this is that the owner of the property, approving the charter of the enterprise, establishes the goals of its creation and the subject of its activities. Transactions that are concluded in violation of the subject of the activity are void (Article 168 of the Civil Code of the Russian Federation).

It would be useful to note that the indication of the subject of activity in the constituent documents of commercial organizations with general legal capacity is not necessary, and the absence of such a list cannot serve as a basis for any restrictions on their economic independence (see more details Shevchuk D.A. Creating your own company: Professional approach. - M.: GrossMedia: ROSBUKH, 2007).

Essential characteristics of organizational and legal forms of non-profit organizations

Public and religious associations

Citizens (and only they) have the right to organize public associations in various forms (organizations, institutions, movements, foundations, public amateur bodies, unions of public associations) to satisfy any needs. These organizations are authorized to conduct business activities consistent with the goals of creating the organization. Therefore, if there is a need to use this form to conduct business, you should carefully formulate the goals of the organization in order to combine the subject of entrepreneurship with these goals.

Funds

The main difference between a foundation and other forms is that the founders of the foundation, after its establishment and registration, lose all rights to the foundation and its property. The fund exists as if on its own and is governed by a board of trustees. The foundation can engage in entrepreneurship only through the business companies it creates.

Nonprofit partnerships

Absolutely new form. The association of members' property is similar to a limited liability company, but the members of the partnership have the right, upon leaving or expulsion from the partnership, to receive the contributed property or its value.

Establishment

An organization fully or partially financed by the founder - the owner of the institution’s property. The founder is liable for the obligations of the institution if the latter is insufficient Money(not property). The founder can be a citizen or a legal entity.

The law does not specify how many founders there can be. The term "owner" is used. Therefore, a collective founder-owner (several owners owning shared or joint property) is not excluded.

Autonomous non-profit organization

Hybrid fund and non-profit partnership. There is no membership, property is not returned to the founders, management is carried out by an autonomous (independent of the founders) body. But she has the right to entrepreneurship.

Association (union)

This organization unites only legal entities. Members of the association bear subsidiary liability for its debts even for two years after leaving the association. Does not have the right to do business.

Consumer cooperative

The most familiar form to everyone (ZHSK, GSK, etc.). Its exotic variety is consumer cooperation (a vestige of “consumer unions”), which, in accordance with the 1992 Law, is a “society of shareholders.”

Members of the cooperative are annually required to cover any losses incurred with their contributions.

Homeowners' Associations

Similar to a housing construction cooperative, but after construction is completed. Designed to organize public utilities for privately owned housing stock. In the process of communal reform it can become a very common form.

Summary comparative tables of characteristics of organizations

General definition commercial organizations:

· organization – legal entity

The main goal is to make a profit

· possibility of distribution of profits between participants.

Types of commercial organizations

A) Business partnerships

1. general partnership

2. partnership of faith

B) Economic companies

3. limited liability

4. with additional responsibility

5. joint stock closed and open

B) Production cooperatives

D) State and municipal unitary enterprises

General definition of non-profit organizations:

· organization;

· the main goal is not to make a profit;

· does not distribute the profit received among participants.

Possible goals of non-profit organizations:

– social

– cultural

– educational

– managerial

– charitable

– satisfaction of spiritual and other needs

– protection of the rights and interests of citizens

– scientific

– dispute resolution

– provision of legal assistance

– health protection

– achievement of other societies, benefits

– development of physical education and sports

Forms of non-profit organizations:

1 public organizations

2 religious organizations

4 non-profit partnerships

5 institutions

6 autonomous non-profit organization

7 association (union)

8 consumer cooperative

9 homeowners associations.

In addition to legal entities, subjects of entrepreneurial activity are individuals: citizens of the country, foreigners, stateless persons.

Naturally, individuals can become entrepreneurs only after obtaining full legal capacity - after 18 years.

There are two names for such entrepreneurs: an individual entrepreneur and a more clumsy name - an entrepreneur without the formation of a legal entity (PBOYUL).

In civil legislation, the name “individual entrepreneur” (IP) is used. But until December 8, 1994, there was an OPF - an individual private enterprise (IPE). Since individual self employed and individual private enterprise are too consonant and do not differ in abbreviation, the tax authorities began to use the abbreviation PBOYUL, then individual entrepreneur.

The Civil Code defines that an entrepreneur is a person who, at his own risk, carries out activities aimed at systematically generating profit, registered in the prescribed manner.

Based on this definition, it would seem that one can engage in activities aimed at generating income (rather than profit), “forgetting” to register in the prescribed manner, and as a result, not have the status of an entrepreneur and not pay the appropriate taxes.

But the Civil Code specifies that transactions concluded an individual. not registered as an entrepreneur, the court may apply the rules established for entrepreneurial transactions if they are entrepreneurial in essence and orientation.

Moreover, the Tax Code of the Russian Federation established that entrepreneurship is an activity aimed at generating income (and not just profit), and a person engaged in business without registration is subject to taxation, like a registered entrepreneur.

State registration of an individual entrepreneur with the justice authorities is carried out at the place of his residence (stay), and he is also registered for tax purposes there. If he carries out his activities not at his place of residence, then he is registered with the tax office at the place of his activities.

The registration process takes 3–4 days. To do this, he fills out an application indicating the types of future entrepreneurial activity, provides two photographs and pays a registration fee. After registration, an individual entrepreneur is registered with the tax office, where he is instructed about the basic rules and procedures of taxation.

The accounting system of an individual entrepreneur is extremely simplified, tax accounting (derived from accounting) is also simplified.

In Russia, the attitude towards individual entrepreneurs is still preserved as a representative of not even a small business, but a small business. This attitude is natural, since few people know what is behind the wildly promoted trademarks, often it is not a corporation, not a holding company, but a modest individual entrepreneur with multimillion-dollar turnover.

Abroad, the attitude towards individual entrepreneurs is completely different. There, it is considered more reliable to deal not with a corporation, not with a company whose loud name does not know what is hidden, but with a specific person - an entrepreneur.

The most important thing that distinguishes an individual entrepreneur from the most common commercial organizations is the full liability of the individual entrepreneur for debts (obligations) incurred in the course of business activities. This difference has both positive and negative aspects when choosing the status of a business entity.

Full responsibility of an individual entrepreneur is an attractive characteristic for counterparties and creditors, since the individual entrepreneur is forced to be scrupulous in complying with obligations (unless the entrepreneur is a “fake” homeless person). But even a normal businessman is not very interested in bearing full responsibility, even taking into account the simplified accounting and tax accounting.

Solving the problem of creating an entrepreneurial organization is consonant with solving any problem and, therefore, in a generalized form is a process of understanding the need, defining a goal, setting tasks, developing options for solving problems, making decisions (i.e. choosing the optimal combination of solution options), ensuring the execution of tasks and evaluation of results.

Accordingly, the main stages of creating a business structure develop:

General understanding of the idea of ​​offering goods (services, works) to the market.

Reflection must be based on an assessment of available resources. Even if there is a complete lack of material, technological, financial and human resources, this does not mean the collapse of your enterprise (in the sense of an “undertaking”). The presence of your organizational resources and entrepreneurial talent can compensate for the lack of many reserves!

Development of business plan options for the future production of goods (services, works).

A business plan in a market environment, as you know, begins not with what you can give, but with what the consumer wants to take, with market demand.

Designing the organizational and legal form of a business structure

Based on the business plan, i.e., from the draft CONTENT of future business activity, you can design the organizational and legal form of the business structure.

The process of designing the organizational and legal form of a business structure is as follows:

a) Assessment of resources and options

Availability and necessity should be assessed qualified personnel, as well as the required degree of their involvement (partnership, cooperation).

It is necessary to find out and compare the financial costs of creating an enterprise organization and organizing individual entrepreneurial activities, as well as determine sources of financing.

It is useful to determine whether future counterparties agree to work with an individual entrepreneur or would prefer an organization.

Clarify what production and management structures are provided for in the business plan.

Reflect on your sense of leadership and determine your place in the management of the organization.

Analyze the need to create your own organization or register a relatively autonomous branch, branch of an already functioning legal entity, as well as the need to create branches and divisions for an independent organization.

Identify the possibility of using one of the forms of non-profit organizations for your business activities.

b) Decision making

Determine whether a for-profit or non-profit organization is being created. Choose a legal form for it. Develop a diagram of the organization's management system. Establish the place (city, region) of state registration.

What determines the choice of the organizational and legal form of a future company? We list the main factors:

· number of founders;

· the degree of trust of the founders in each other from the moment of creation and during the development of the company (both in case of failure and (especially) in case of success);

· the amount of liability of the founders to the creditors of the company;

· risk associated with the withdrawal of a participant from the LLC;

· period of activity of the company;

· the possibility of changing the composition of founders (participants, shareholders);

· the need to form an authorized capital greater than the minimum required by law;

· relations of counterparties, creditors, consumers to various OPFs;

· Availability necessary funds to create a company of a certain OPF;

· the possibility of replacing payment for services (in a commercial organization) with contributions from participants in a non-profit organization. For example, not payment for cosmetic services, but membership fees for the elite club “Vasyukovskaya Beauty”;

· optimal taxation system (this will become clear upon completion of training).

c) Ensuring the creation of an organization

1. Prepare the following data (technical specifications) for the developer of constituent documents:

· name and legal form;

· location of the governing body (“legal address”);

· amount of authorized capital;

· distribution of authorized capital between the founders;

· procedure for forming the authorized capital (who, what, when);

· organization management scheme, competence of management bodies;

· data of the founders (passport, certificate of registration of a legal entity);

· determine the order of relationships between the founders and indicate this order in the application ( terms of reference for designing an organization).

2. Select a law firm for state registration and place an order with it.

You should not trust a company that “stamps” standard constituent documents. And in the law “On LLC”, and in the law “On JSC”, and in the law “On Non-Profit Organizations” there is great amount provisions that have options. The choice of a specific option depends on many conditions of your activity, and the success of your activity depends on the correct choice. The list of such options for LLC is three pages of neat text, for JSC – eight pages.

Usually law firm does not inform its clients about the possibility and necessity of such a choice, since it is much easier to stamp a standard charter.

But let’s take for example the following condition: the heir of the founder of an LLC can always receive the value of the share of the deceased founder (though after 6-12 months, when this value will be zero). The law establishes that the entry of an heir into the affairs of the company as an equal participant in an LLC is possible a) without the consent of other participants; b) with the consent of other participants.

Where does this lead? If your company is rapidly developing, you have a dominant position (the share of the authorized capital is more than 50%), and your business partners claim more, then it is extremely tempting to “remove” you if the charter stipulates that the heirs enter only with the consent of the remaining participants.

But on the other hand, if the heirs of the participants in their business qualities such that one must stay away from them, then this same provision of the charter can lead to the collapse of the company. And there are dozens of such alternative provisions.

3. Select a bank to open a current account, after registration and registration with the tax office, open a current account (for more details, see Shevchuk D.A. Bank operations. – M.: GrossMedia: ROSBUKH, 2007).

4. Determine the schemes of financial and economic operations and develop (entrust the development to a specialist) forms of basic agreements and contracts, including labor ones, taking into account tax optimization.

d) Creation of a commercial organization

· holding a general meeting of the initiative group, i.e. future founders;

· conclusion of a constituent agreement or agreement on the creation of a joint-stock company;

· approval of the charter (based on the developed project);

· drawing up the minutes of the general meeting of founders;

· payment of the state fee for registering an organization;

· payment (formation) of at least 50% of the authorized capital (fund);

· transfer of all necessary documents to the registration authority

· receipt of registered documents from the registration authority;

· notarization required quantity copies of constituent documents;

· registration of the organization with funds, State Statistics Committee;

· obtaining a tax registration certificate from the tax office;

· notarization of signatures of organization leaders on bank cards;

· opening a current account in a bank.

These are the main stages of creating a commercial organization. Creating a non-profit organization, including a public one, differs slightly from this process.

e) Constituent documents of a legal entity

Of the stages of creating a business organization listed above, one of the most labor-intensive and responsible is the preparation of constituent documents and state registration. The procedure for conducting them is regulated by Articles 51, 52, 53 and 54 of the Civil Code of the Russian Federation.

Article 52 of the Civil Code of the Russian Federation states:

1. A legal entity acts on the basis of the charter or the constituent agreement and charter, or only the constituent agreement. In cases provided for by law, a legal entity that is not a commercial organization may act on the basis general position about organizations of this type.

The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants).

A legal entity created in accordance with this Code by one founder acts on the basis of a charter approved by this founder.

2. The constituent documents of a legal entity must determine the name of the legal entity, its location, the procedure for managing the activities of the legal entity, and also contain other information provided by law for legal entities of the corresponding type. The constituent documents of non-profit organizations and unitary enterprises, and in cases provided for by law and other commercial organizations, must define the subject and goals of the activities of a legal entity. The subject and certain goals of the activities of a commercial organization may be provided for by the constituent documents even in cases where this is not mandatory by law.

In the constituent agreement, the founders undertake to create a legal entity, determine the procedure for joint activities for its creation, the conditions for transferring their property to it and participation in its activities. The agreement also determines the conditions and procedure for the distribution of profits and losses between participants, management of the activities of a legal entity, and the withdrawal of founders (participants) from its composition.

3. Changes in constituent documents become effective for third parties from the moment of their state registration, and in cases established by law, from the moment the body carrying out state registration is notified of such changes. However, legal entities and their founders (participants) do not have the right to refer to the lack of registration of such changes in relations with third parties who acted in accordance with these changes.

A number of provisions of this article require clarification.

The article names either the charter, or the constituent agreement and charter, or only the agreement as constituent documents. A legal entity created by one founder acts on the basis of a charter approved by this founder. This means that it is inadmissible to require other documents (for example, a founder’s decision), which, unfortunately, is often practiced. Registration authorities do not have the right, at their own discretion, to establish a list of documents required for registration of a legal entity and, based on it, to delay registration.

It is noteworthy that the article indicates the possibility of action by a legal entity - a non-profit organization on the basis of the general provisions on organizations of this type. Consequently, individual constituent documents are not required for its registration.

Serious study (especially in practical activities) requires paragraph 2 of the article. It says what information should be contained in the constituent documents. Ignoring them can lead to both an undeniable refusal to register a legal entity and certain complications in the process of its activities. At the same time as paragraph 1 of Article 52, one should be guided by the laws for legal entities of the corresponding type.

The constituent agreement must be concluded deliberately, since in relation to various types of legal entities, the legislator determines its terms in a number of cases dispositively. To a lesser extent this also applies to charters. Therefore, mechanical copying of other people's documents, which is very common, is undesirable.

Although according to clause 3 of Art. 52 of the Civil Code, changes in constituent documents become effective from the moment of their state registration (or from the moment of notification of the registering authority); they apply to relations with third parties who acted in accordance with these changes even in the absence of their registration: in these cases, legal entities and their founders (participants) has no right to refer to lack of registration.

An interesting provision in paragraph 3 is that changes to the constituent documents become effective from the moment indicated above for third parties. It allows us to conclude that changes are mandatory for the legal entity itself and its founders (participants) even before their registration.

Article 53 of the Civil Code of the Russian Federation regulates the composition and procedure for the activities of the bodies of a legal entity, which are necessarily reflected in the constituent documents:

1. A legal entity acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law, other legal acts and constituent documents.

The procedure for appointing or electing bodies of a legal entity is determined by law and constituent documents.

2. In cases provided for by law, a legal entity may acquire civil rights and assume civil responsibilities through its participants.

3. A person who, by virtue of the law or the constituent documents of a legal entity, acts on its behalf must act in the interests of the legal entity he represents in good faith and reasonably. It is obliged, at the request of the founders (participants) of a legal entity, unless otherwise provided by law or agreement, to compensate for losses caused by it to the legal entity.

Thus, in the Civil Code there is no special rule regarding the legal capacity of a legal entity, however, in Art. 53 of the Civil Code, the legislator determines the procedure for acquiring civil rights by a legal entity - this can be done through its bodies, and in cases provided for by law - through participants (this procedure for acquiring rights is provided, for example, in relation to partnerships).

Clause 3 of Article 53 of the Civil Code contains requirements regarding the behavior of a person acting on behalf of a legal entity: his actions must be conscientious and reasonable. This criterion suffers from a certain degree of uncertainty, but it focuses on showing the maximum amount of attention and care to the interests of the represented person in order to avoid liability in the form of compensation for losses caused to the legal entity.

No less important are issues relating to the name and location of a legal entity; they are regulated by Article 54 of the Civil Code of the Russian Federation:

1. A legal entity has its own name, which contains an indication of its organizational and legal form. The names of non-profit organizations, as well as unitary enterprises and, in cases provided for by law, other commercial organizations must contain an indication of the nature of the activity of the legal entity.

2. The location of a legal entity is determined by the place of its state registration, unless otherwise established in the constituent documents of the legal entity in accordance with the law.

3. The name and location of a legal entity are indicated in its constituent documents.

4. A legal entity that is a commercial organization must have a corporate name.

A legal entity whose business name is registered in accordance with the established procedure has the exclusive right to use it.

A person who unlawfully uses someone else’s registered company name, at the request of the owner of the right to the company name, is obliged to stop using it and compensate for the losses caused.

The procedure for registration and use of company names is determined by law and other legal acts in accordance with this Code.

In paragraph 1 of this article it is emphasized that a legal entity in its name contains an indication of its organizational and legal form, and unitary enterprises, in cases provided for by law, other commercial organizations and non-profit organizations - an indication of the nature of the activity. The latter specifically focuses on the legal capacity of these legal entities and, as it were, warns participants in civil circulation about the inadmissibility legal connections with them going beyond its limits. Here we can assume that the counterparty of a legal entity, given such a name, must obviously know about the illegality of the action being performed.

As stated in paragraph 4 of the article, a legal entity that is a commercial organization must have a company name. Within the meaning of this paragraph, such a name is not necessarily registered, but it can be registered, and then the legal entity becomes the bearer of the exclusive right to use it, that is, third parties can use it only with the consent of the copyright holder - otherwise they are obliged at the request of the owner the right to a company name to stop using it and compensate for damages caused.

It is characteristic that the trade name by the Civil Code refers to the means of individualization of a legal entity and its products, which are part of the intellectual property of the organization (C. 139 of the Civil Code of the Russian Federation).

In cases and in the manner established by the Civil Code and other laws, the exclusive right (intellectual property) of a citizen or legal entity to the results of intellectual activity and equivalent means of individualization of a legal entity, individualization of products, work performed or services (company name, trademark, service mark, etc.). The use of the results of intellectual activity and means of individualization, which are the object of exclusive rights, can be carried out by third parties only with the consent of the copyright holder.

On the basis of constituent documents, state registration of an organization is carried out, the procedure of which is determined by Article 51 of the Civil Code of the Russian Federation:

1. A legal entity is subject to state registration with the justice authorities in the manner determined by the law on registration of legal entities. State registration data, including for commercial organizations, business name, is included in the unified state register of legal entities, open to the public.

Violation of the procedure established by law for the formation of a legal entity or non-compliance of its constituent documents with the law entails refusal of state registration of the legal entity. Refusal of registration based on the inexpediency of creating a legal entity is not permitted.

Refusal of state registration, as well as evasion of such registration, can be appealed in court.

2. A legal entity is considered created from the moment of its state registration.

This article defines the procedure for registering a legal entity with the justice authorities, with the inclusion of data on state registration in the unified state register of legal entities, open to the public.

Thus, refusal to register is permissible only if the procedure for forming a legal entity established by law is violated or its constituent documents do not comply with the law. Refusal on other grounds or evasion of registration is illegal and can be appealed in court. Thus, abuses on the part of officials carrying out registration must be eliminated, since the possibility of claims for compensation for damage caused by unlawful actions of the relevant body is not excluded (see for more details Shevchuk D.A. Creating your own company: A professional approach. - M. : GrossMedia: ROSBUKH, 2007).

2.7.1 Small business status

First of all, it should be noted that the legislation currently in force in the Russian Federation does not provide for such an organizational and legal form as a small enterprise. A small enterprise can be a joint-stock company, an LLC, or general partnership. But it cannot be defined in the charter as a small enterprise. This concept is used, as a rule, to distinguish from the total number commercial enterprises those who need (rely on) financial or other support from the state, as representatives of small businesses.

Depending on the number of employees, enterprises are divided into small, small, medium and large. In some countries, other criteria are used to divide enterprises according to quantitative parameters: volume of turnover, amount of profit (income), volume of initial capital, volume of assets. In accordance with the Law of the Russian Federation “On state support small businesses" small businesses can be legal entities (commercial organizations) of any organizational and legal form (cooperatives, partnerships, limited liability companies, joint stock companies closed type, including with purely Russian or mixed capital):

· in the authorized capital of which the share of participation of the Russian Federation, constituent entities of the Russian Federation, public and religious organizations (associations), charitable and other foundations does not exceed 25 percent; the share owned by one or more legal entities that are not small businesses must not exceed 25 percent,

· size limit The number of employees employed on the basis of civil contracts for the reporting period was established as follows:

industry 100 people

· construction 100 people

· transport 100 people

· agriculture 60 people

· scientific and technical sphere 60 people

· wholesale 50 people

· retail and consumer services for the population of 30 people

· in other industries and in other types of activities 50 people

For newly created small enterprises, it is apparently necessary to especially emphasize the procedure for determining the average number of employees of an enterprise for classification of this enterprise to the category of small and receive appropriate benefits.

Firstly, you need to know that the average headcount includes both full-time employees of the enterprise (including part-time workers) and non-employees (performing work under a contract and other civil contracts), including persons working part-time, taking into account the actual time worked, as well as employees of representative offices, branches and other separate divisions of a small enterprise.

Secondly, average number is taken into account for the enterprise on an accrual basis from the beginning of the year, and only if it is not exceeded against the maximum value can the enterprise have appropriate benefits as a small enterprise.

EXAMPLE 1

During the quarter, the average number of employees of the enterprise was 104 people.

For the first half of the year - 97 people.

In this case, the enterprise, not having the right to benefits as a small enterprise in the first quarter, at the end of the year for the half year, however, acquired the right to such benefits for the entire period.

Thus, if the enterprise has met the conditions for complete exemption from income tax, then the tax paid for the first quarter must be returned to it based on the results of work for the first half of the year.

EXAMPLE 2

For the first quarter, the average number of employees was 97 people.

In the first half of the year it exceeded 100 people.

In this case, an enterprise exempt from income tax based on the results of the first quarter, based on the results for the first half of the year, must fully pay off the budget for the entire period from the beginning of the year.

In the same order, the results of the enterprise’s work and its calculations with the budget for income tax for 9 months and the reporting year are considered.

When an enterprise is engaged in only one type of activity, then problems do not arise. But today there are practically no such enterprises, and enterprises are forced to engage in various types activities. How to be in this case?

In accordance with current legislation, multi-industry enterprises are classified as small in terms of the number of employees, corresponding to the type of activity that brings in the largest share of total revenue from the sale of products, works and services.

After the introduction of the Tax Code, there is no need to seriously talk about benefits for small businesses. The Tax Code, without directly repealing those laws and regulations that provided such benefits, determined their invalidity as acts not included in the tax legislation system.

What is entrepreneurship? This is a special type of economic activity, and it should be understood as expedient activity, organized for profit, and based on one’s own initiative, entrepreneurial idea and responsibility. In the current market economy, it is difficult to conduct business (economic) activities without understanding the basic concepts and principles, first of all, these are the objects and subjects of business.

Business entities. These are subjects in civil legal relations who carry out activities at their own peril and risk. Such activities are aimed at making a profit by using property, performing any work, selling goods, and providing services. Business entities must be officially registered and can operate both as individuals or private entities, as well as legal entities, as well as state, municipal organizations and bodies that issue permits for the right to engage in business.

Individuals. Important subjects of economic activity are citizens, they are also individuals who engage in commercial activities by registering themselves with the tax authorities as individual entrepreneurs.

Legal entities. Enterprises or organizations engaged in entrepreneurship are formed and operate in different organizational and legal forms, such as joint stock companies, business partnerships and societies (the most common form), as well as production cooperatives (based on membership, share contributions) and unitary enterprises (there are state or municipal).

Associations of business entities. In practice, together with legal entities, entrepreneurs and foreign companies, in Russia there are also such business entities as associations of business entities. They cannot be called a separate organizational and legal form, although they act as a special way of organization commercial activities.

Unions, associations, financial and industrial groups. Among associations of business entities, unions and associations are of particular importance, which are associations of several legal entities based on corporate principles to coordinate their work and protect the interests of participants. Separately, it should be said about financial and industrial groups - these are associations of enterprises that operate as one main and one or more subsidiaries, or can fully or partially combine their intangible and tangible assets by signing an appropriate agreement.

Business objects. The types of activities that entrepreneurs engage in are called business objects. In this case, any activity can be carried out if it is not prohibited by law. Certain types of commercial activities require special permits from local governing bodies, such as a qualification certificate. Objects and business entities are essentially different sides one and the same process - the process of making a profit. Subjects are the entrepreneurs themselves, and objects are what they do.

A business entity is a person engaged in business activities and registered as such in the manner prescribed by law.

Entrepreneurial activity can be carried out in two forms - individual and collective. Accordingly, in the first case, entrepreneurial activity is carried out by a citizen registered as an individual entrepreneur, in the second - by a collective entity - a legal entity.

It should be noted that the division of entrepreneurial activity into individual and collective forms is very conditional for the following reasons.

Firstly, an individual entrepreneur can involve other persons in his activities by concluding labor and civil contracts with them; moreover, the activities of a peasant (farm) enterprise, as a rule, are collective in nature through the use of labor of members of one family, although formally only the head of a peasant (farm) enterprise has the status of an entrepreneur.

Secondly, current Russian legislation allows the existence of legal entities established by one individual, for example limited liability companies.

A special form of entrepreneurship is public entrepreneurship. The Russian Federation and the constituent entities of the Russian Federation do not need state registration as a business entity, since in accordance with the Constitution of the Russian Federation and the basic laws of the constituent entities of the Russian Federation they have the appropriate competence to carry out economic activities. Legitimation of municipalities as business entities is carried out by their development of a charter, which is adopted by the representative body of local self-government or the population directly and is subject to state registration in the manner established by the law of the constituent entity of the Russian Federation.

Both individual and collective forms of entrepreneurship have their advantages and disadvantages, which may prevail in a given situation.

In any case, business entities must meet a number of requirements:

• 1) state registration in the manner prescribed by law. Individual entrepreneurs and organizations are legitimized as economic entities through state registration;
• 2) availability of legal capacity to the extent necessary to engage in entrepreneurial activity. Legal capacity is established in accordance with the law, constituent documents, and in some cases - on the basis of a license.

There are general, limited, special and exclusive legal capacity.

General legal capacity enables subjects to have the rights and bear the responsibilities necessary to carry out any type of business activity that is not prohibited by law. Commercial organizations, with the exception of state and municipal unitary enterprises and other types of organizations provided for by law (Article 49 of the Civil Code of the Russian Federation), and individual entrepreneurs have general legal capacity. General legal capacity may be limited in the constituent documents of a legal entity by establishing the purpose of its activities.

Special legal capacity is vested in subjects who, by virtue of direct instructions of the law, are obliged to establish the purpose of their activities in the constituent documents. They may have rights corresponding to the objectives of the activity provided for in the charter, and bear responsibilities associated with this activity. This category includes state and municipal unitary enterprises and non-profit organizations.

Exclusive legal capacity is possessed by subjects who have chosen for themselves a type of activity in relation to which the legislator has established a ban on carrying out, along with it, any other types of business activity (insurance companies, credit organizations, audit organizations, etc.).

To carry out some types of activities, in addition to registration, it is also necessary to obtain a special permit (license) or comply with other procedures established by law (for example, status in a self-regulatory organization);

• 3) the presence of separate property. One of the necessary conditions for the normal functioning of business entities is the presence of separate property. The legal forms of such separation can be the right of ownership, economic management, and operational management. Separate property serves as the basis for independent property liability;
• 4) independent property liability. The business entity is responsible with its property to counterparties and the state. By general rule the founder (participant) of a legal entity or the owner of its property is not liable for the obligations of the legal entity, and the legal entity is not liable for the obligations of the founder (participant) or owner. Exceptions to this rule may be provided for by law or constituent documents.

For example, for the obligations of business partnerships, general partners bear subsidiary liability; The Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise if its property is insufficient.

It should be noted that Russian legislation does not recognize legal personality for associations of entrepreneurs that do not have the status of a legal entity, such as holdings, financial and industrial groups, transnational corporations, etc. At the same time, associations and unions of entrepreneurs, other non-profit associations designed to assist entrepreneurs, registered as a legal entity, can be considered as subjects of entrepreneurial relations, although, as a rule, they are not subjects of entrepreneurial activity.

The current legislation establishes special rules for small and medium-sized businesses.

The legal status of small and medium-sized businesses is determined by the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized businesses in the Russian Federation” 1.

Small and medium-sized businesses are economic entities (legal entities and individual entrepreneurs) classified as small enterprises, including micro-enterprises, and medium-sized enterprises based on the following criteria:

• having the status of an individual entrepreneur, including the head of a peasant (farm) enterprise, commercial organization (with the exception of state and municipal enterprises) or consumer cooperative;
• for legal entities - the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations (associations), charitable and other funds in the authorized (share) capital (share fund) of these legal entities should not exceed twenty-five percent (except for the assets of joint-stock investment funds and closed-end mutual investment funds), the share of participation owned by one or more legal entities that are not small and medium-sized businesses should not exceed twenty-five percent (this limitation does not apply to business entities , whose activities include practical application(implementation) of the results of intellectual activity (programs for electronic computers, databases, inventions, utility models, industrial designs, breeding achievements, topologies of integrated circuits, production secrets (know-how), the exclusive rights to which belong to the founders (participants) of such economic societies - budgetary scientific institutions or scientific institutions created by state academies of sciences or budgetary educational institutions higher vocational education or educational institutions of higher professional education created by state academies of sciences);
• the average number of employees of the enterprise for the previous calendar year, which is determined taking into account all its employees, including employees working under civil contracts or part-time, taking into account the actual time worked, employees of representative offices, branches and other separate divisions:
  • - a) medium-sized enterprises - from 101 to 250 people inclusive;
  • - b) small enterprises - up to 100 people inclusive, including micro-enterprises - up to 15 people;
• revenue from the sale of goods (work, services) excluding VAT or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values ​​​​established by the Government of the Russian Federation for each category of business entities.

In accordance with the Decree of the Government of the Russian Federation dated July 22, 2008 No. 556 “On the maximum values ​​of revenue from the sale of goods (work, services) for each category of small and medium-sized businesses”, the maximum values ​​of revenue from the sale of goods (work, services) for the previous year excluding value added tax for the following categories of small and medium-sized businesses:

• microenterprises - 60 million rubles;
• small enterprises - 400 million rubles;
• medium-sized enterprises - 1000 million rubles. 1

Newly created organizations or newly registered individual entrepreneurs and peasant (farm) enterprises during the year in which they are registered can be classified as small and medium-sized businesses if their indicators of the average number of employees, revenue from the sale of goods (work, services) or the book value of assets (residual value of fixed assets and intangible assets) for the period elapsed from the date of their state registration, do not exceed the limit values ​​​​established in paragraphs 2 and 3 of Part 1 of Art. 4 of the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized businesses in the Russian Federation” 1.

The acquisition by an economic entity of the status of a small or medium-sized enterprise gives it the opportunity to take advantage of the support measures provided for by law, which include financial, property, information, consulting support for such entities, support in the field of training, retraining and advanced training of their employees, support in the field of innovation and industrial production, handicrafts, support for entities engaged in foreign economic and agricultural activities.

The conditions and procedure for providing such support are established by development programs for small and medium-sized businesses. Subjects of the Russian Federation have the right to independently provide other forms of support at the expense of the budgets of constituent entities of the Russian Federation.

In order to implement state policy in the field of development of small and medium-sized businesses in the Russian Federation, federal laws and other regulatory legal acts of the Russian Federation may provide for the following measures:

• 1) special tax regimes, simplified rules for tax accounting, simplified forms tax returns on certain taxes and fees for small businesses;
• 2) simplified management system financial statements for small businesses carrying out individual species activities;
• 3) a simplified procedure for the preparation of statistical reporting by small and medium-sized businesses;
• 4) preferential payment procedure for state and municipal property privatized by small and medium-sized businesses;
• 5) features of the participation of small businesses as suppliers (performers, contractors) for the purpose of placing orders for the supply of goods, performance of work, provision of services for state and municipal needs;
• 6) measures to ensure the rights and legitimate interests of small and medium-sized businesses in the exercise of state control (supervision);
• 7) measures to ensure financial support for small and medium-sized businesses;
• 8) measures to develop infrastructure to support small and medium-sized businesses;
• 9) other measures.

Additional benefits for small and medium-sized businesses may be established by other federal laws, as well as regional legislation. So, the federal law dated July 22, 2008 No. 159-FZ “On the specifics of the alienation of real estate that is in state ownership of constituent entities of the Russian Federation or in municipal ownership and leased by small and medium-sized businesses, and on amendments to certain legislative acts Russian Federation" 1 establishes a preferential procedure for the privatization of real estate leased by small and medium-sized enterprises.

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