Describe the organizational and legal form of the enterprise. Characteristics of organizational and legal forms of enterprises. Possible goals of non-profit organizations
The concept of the enterprise, its features
An enterprise is an independent economic entity created (established) in accordance with current legislation for the production of products, performance of work or provision of services in order to meet public needs and make a profit.
After state registration, the enterprise is recognized as a legal entity and can participate in economic turnover. It has the following features:
the enterprise must have separate property in its ownership, economic management or operational management;
the enterprise is liable with its property for the obligations that arise in its relations with creditors, including to the budget;
the enterprise acts in economic circulation on its own behalf and has the right to conclude all types of civil law contracts with legal entities and individuals;
the company has the right to be a plaintiff and a defendant in court;
the enterprise must have an independent balance sheet and submit reports established by state bodies in a timely manner;
the enterprise must have its own name, containing an indication of its organizational and legal form. Enterprises can be classified in many ways:
by appointment finished products enterprises are divided into producing means of production and producing consumer goods;
on the basis of technological commonality, an enterprise with continuous and discrete production processes is distinguished;
according to the size of the enterprise are divided into large, medium and small;
According to the specialization and scale of production of the same type of products, enterprises are divided into specialized, diversified and combined.
by type production process enterprises are divided into enterprises with a single type of production, serial, mass, experimental.
according to the signs of activity are distinguished industrial enterprises, trade, transport and others.
according to the forms of ownership, private enterprises, collective, state, municipal and joint enterprises (enterprises with foreign investments) are distinguished.
The legal form is the form of organization entrepreneurial activity legally secured. It defines liability for obligations, the right to deal on behalf of the enterprise, the management structure and other features. economic activity enterprises. The system of organizational and legal forms used in Russia is reflected in the Civil Code of the Russian Federation, as well as in the regulations. It includes two forms of entrepreneurship without forming a legal entity, seven types of commercial organizations and seven types of non-profit organizations.
Let us consider in more detail the organizational and legal forms of legal entities that are commercial organizations. Entity- an organization that has separate property in ownership, economic management and operational management, is liable for its obligations with this property and can acquire and exercise property rights and incur obligations on its own behalf.
Commercial organizations are called organizations that pursue profit as the main goal of their activities.
A business partnership is an association of persons directly involved in the activities of the partnership, with the share capital divided into shares of the founders. The founders of a partnership may be members of only one partnership.
A partnership is recognized as full, the participants of which (general partners) are engaged in entrepreneurial activities on behalf of the partnership. If the property of the partnership is insufficient to pay off its debts, creditors have the right to demand satisfaction of claims from the personal property of any of its participants. Therefore, the activity of the partnership is based on the personal and trusting relationships of all participants, the loss of which entails the termination of the partnership. The profits and losses of the partnership are distributed among its participants in proportion to their shares in the share capital.
Limited partnership (limited partnership) - a kind full partnership, an intermediate form between a general partnership and a company with limited liability. It consists of two categories of participants:
General partners carry out entrepreneurial activities on behalf of the partnership and are fully and jointly and severally liable for obligations with all their property;
Investors make contributions to the property of the partnership and bear the risk of losses associated with the activities of the partnership within the limits of the amounts of contributions to the property.
A business partnership, unlike a partnership, is an association of capital. The founders are not required to directly participate in the affairs of the company, members of the company can simultaneously participate in property contributions in several companies.
A limited liability company (LLC) is an organization created by agreement between legal entities and citizens by combining their contributions in order to carry out economic activities. Mandatory personal participation of members in the affairs of the LLC is not required. Members of an LLC are not liable for its obligations and bear the risk of losses associated with the activities of the LLC to the extent of the value of their contributions. The number of participants in an LLC should not exceed 50.
An additional liability company (ALC) is a type of LLC, therefore it is subject to all general rules OOO. The peculiarity of the ALC is that if the property of this company is insufficient to satisfy the claims of its creditors, the participants in the company can be held liable, and jointly and severally with each other.
Joint stock company (JSC) - a commercial organization, the authorized capital of which is divided into a certain number of shares; JSC participants are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares. open joint-stock company(JSC) - a company whose members can alienate their shares without the consent of other members of the company. Such a company has the right to conduct an open subscription for shares issued by it in cases established by the Charter. A closed joint stock company (CJSC) is a company whose shares are distributed only among its founders or other specific circle of persons. CJSC is not entitled to conduct an open subscription for its shares or otherwise offer them to an unlimited number of persons.
A production cooperative (artel) (PC) is a voluntary association of citizens for joint activities, based on their personal labor or other participation and the association of property shares by its members. The profit of the cooperative is distributed among its members in accordance with their labor participation, unless otherwise provided by the charter of the PC.
A unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it. The property is indivisible and cannot be distributed among contributions (shares, shares), including between employees of the enterprise. It is respectively in state or municipal ownership and is assigned to a unitary enterprise only on a limited property right (economic management or operational management).
Unitary enterprise on the right of economic management - an enterprise that is created by decision of a state body or local government. The property transferred to the unitary enterprise is credited to its balance sheet, and the owner does not have the rights of possession and use in relation to this property.
A unitary enterprise with the right of operational management is a federal state-owned enterprise, which is created by decision of the Government of the Russian Federation on the basis of property that is in federal ownership. State-owned enterprises are not entitled to dispose of movable and real estate without special permission from the owner. The Russian Federation is liable for the obligations of a state-owned enterprise.
The Constitution of the Russian Federation allows the existence of other forms of ownership.
Mixed property.
Form of ownership - legally regulated property relations that characterize the assignment of property to a certain owner on the right of ownership.
In the Russian Federation recognized and guaranteed by the Constitution are the forms of ownership:
- state property;
- municipal property;
- private property;
Organizational and legal forms of economic activity (OPF)
The type and method of structural construction of an enterprise (firm, company, etc.), provided for by laws and other norms of economic law, depending on the form of ownership, volume and range of products, the formation of its capital, the nature and content of activities, differing in the way they enter into various intercompany unions, according to the method of conducting competition, etc., are organizational and legal forms of management.
Classification of organizational and legal forms (Appendix 1)
I. Commercial enterprises, carry out their activities with the aim of making a profit.
1. Business partnerships:
· General partnership.
· Limited partnership.
2. Business companies:
· Limited Liability Company (LLC).
· Additional Liability Company (ALC).
· Joint Stock Company (JSC and AOZT).
3. Personal individual enterprises (PE).
II. Non-profit enterprises , carry out charitable activities.
1. Consumer cooperative
2. Public and religious organizations (associations)
4. Institutions
5. Associations of legal entities (associations and unions)
Business partnerships are an association of persons, they can be created in the form of general partnerships and limited partnerships (limited partnerships).
A general partnership is an association of two or more persons to carry out entrepreneurial activities with the aim of making a profit, the participants of which personally participate in the affairs of the partnership and each is liable for the obligations of the partnership not only with the invested capital, but also with all his property. Losses and profits are distributed in proportion to the share of each of the participants in the common property of the partnership. The memorandum of association of a general partnership contains the following provisions: names of participants, company name, location, subject of activity, contribution of each participant, nature of profit distribution, terms of operation.
According to the law, it is prohibited for one of the participants to sell their share to a new person without the consent of other members of the general partnership.
The form of a full partnership is not widespread and is applicable only to small and medium-sized enterprises.
A limited partnership is an association of two or more persons for carrying out entrepreneurial activities, in which the participants (general partners) are liable for the affairs of the partnership, both with their contribution and with all their property, and others (limited partners or contributor members) respond only with their contribution.
General partners participate in entrepreneurial activities, limited partners do not take part in entrepreneurial activities and cannot influence the decisions of general partners. A limited partnership operates on the basis of a memorandum of association.
Business companies are an association of capitals, which involves the addition of capitals, but not the activities of investors: the management and operational management of enterprises is carried out by specially created bodies, the responsibility for obligations lies with the enterprise itself, the participants are exempt from the risk arising from economic activity.
A joint stock company (JSC) is formed by issuing and placing shares. Participants (shareholders) are liable, limited to the amount that was paid for the acquisition of shares. Joint stock companies are required to publish reports on their activities at the end of each financial year.
This form organization of enterprises is currently the most common
Joint-stock companies are formed on the basis of the charter, which is developed and approved by the founders of the company. The charter determines the maximum amount for which shares can be issued, called the authorized capital, and their nominal value.
The authorized capital of a JSC is formed in two ways:
Through public subscription for shares (open joint stock company);
Through the distribution of shares among the founders (closed joint stock company).
A share is a security that certifies participation in a JSC and allows you to receive a share of the company's profits. Shares can be various kinds: nominal and bearer; simple and privileged, etc.
Governing bodies can have a two- and three-tier structure. The first includes the board and the general meeting of shareholders, the second, in addition to the above, includes the supervisory board.
The General Meeting of Shareholders makes it possible to exercise the right of management of JSC members. The Assembly is competent to decide such issues as: general line development of the company, change of the charter, creation of branches and subsidiaries, approval of performance results. Election of the Board, etc.
The Management Board (Board of Directors) carries out the current management of the company's activities, resolves all issues that are not within the competence general meeting. The management board is responsible for the most important management issues: transactions, accounting, business management, financing and lending, etc.
The Supervisory Board is the body that controls the activities of the board.
A limited liability company (LLC) is a form of organization of an enterprise, whose participants make a certain share contribution to the authorized capital and bear limited liability within the limits of their contributions. The shares are distributed between the founders without a public subscription and must be registered. The size of the shares is determined founding documents. A member of an LLC is issued a written certificate, which is not a security, cannot be sold to another person without the permission of the company.
LLC has a number characteristic features that distinguish it from other forms:
Enterprises in the form (LLC) - for the most part small and medium-sized, more mobile and flexible, in comparison with JSC;
Share certificates are not securities, and, accordingly, they are not circulated on the market;
The structure of the company is the simplest, business management, transactions are carried out by one or more managers;
The number of participants may be limited by law;
An LLC does not have to publish its articles of association, balance sheet data, etc.
A limited liability company operates on the basis of a memorandum of association and a charter.
An additional liability company (ALC) is a kind of economic companies. A feature of the ALC is that if the company's property is insufficient to meet the needs of creditors, the ALC participants can be held liable for the company's debts with their personal property in a joint and several manner. However, the amount of this liability is limited: it does not apply to all property, as in a general partnership, but only to part of it - the same for all multiples of the amount of contributions made (three times, five times, etc.).
Since the beginning of the economic reform, such type of economic structures as small business. Small enterprises are capable of high dynamism of development, are independent in choosing a development strategy and its implementation, have a simplified organizational structure are served by a relatively small number of workers. In our country, they should play a significant role in solving such problems as the demonopolization of production, the development of competition, the creation of new jobs and the provision of effective employment for the population, the rational use of scientific and technical potential, the creation of competitive products, and the elimination of disproportions in the consumer market. The term "small" indicates only the small size of the enterprise in terms of the number of employees, the volume of economic turnover, or other parameters of activity established in legislative acts and government decrees.
Advantages of small businesses: low costs, fast capital turnover, preferential taxation, simplified accounting and reporting system.
Disadvantages of small businesses: relatively high level of risk and small amount of capital in the first stage life cycle, financial difficulties due to the complexity of obtaining a loan, a low level of professional management, the difficulty of attracting qualified specialists, etc.
unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it. The property of the enterprise is indivisible and cannot be distributed among deposits. The charter of a unitary enterprise contains information on the subject and objectives of the activity, on the size of the authorized fund, the procedure and sources for its formation. In the shape of unitary enterprises only state and municipal enterprises can be created.
The property belongs to a unitary enterprise on the basis of economic management or operational management. An enterprise based on the right of operational management (federal state enterprise) is created by decision of the Government of the Russian Federation on the basis of property that is in federal ownership.
Production cooperative (artel) is an association of citizens for joint production or economic activities. Participation in the cooperative of legal entities is possible. The number of members must not be less than five. Members of a production cooperative shall bear subsidiary liability for the obligations of the cooperative in the amount and in the manner prescribed by the law on the production cooperative and the charter.
The property owned by the cooperative is divided into shares of its members in accordance with the charter. The cooperative is not entitled to issue shares. The profit of the cooperative is distributed among its members in accordance with labor participation. The supreme governing body is the general meeting of its members of the cooperative.
There are other types commercial enterprises(associations of enterprises).
Characteristics of organizational and legal forms
Classification, that is, the division into different organizational and legal forms must be done in accordance with three rules:
- unity of the basis of division (films cannot be divided into interesting, color and foreign ones)
- completeness of division (you cannot divide people into blondes and brunettes - brown-haired and bald ones will remain "restless")
- the significance of the basis of the division (if we are interested in the carrying capacity of the vessel, then we should not classify ships by whether their captain is single or married).
a) availability as the main goal of creating and the activities of a legal entity, the intention to make a profit, they are all divided into two groups (Article 50 of the Civil Code of the Russian Federation):
- Commercial organizations, which can be created in the form business partnerships and companies, production cooperatives, state and municipal unitary enterprises
- Non-Profit Organizations, which can be created in the form of consumer cooperatives, public or religious organizations (associations), institutions financed by the owner, charitable and other funds, as well as in other forms provided by law.
- legal entities in respect of which their participants have rights of obligation (economic partnerships and companies, production and consumer cooperatives, non-profit partnerships, autonomous non-profit organizations)
- legal entities on whose property their founders have the right of ownership or other real right (state and municipal unitary enterprises, including subsidiaries, as well as institutions financed by the owner)
- 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).
c) By legal form(OPF) legal entities are divided into:
| Commercial organizations | Non-Profit Organizations |
1. Business partnerships and companies, including:
3. Unitary enterprises:
| 1. Public associations:
2. Religious organizations. |
Unlike commercial organizations, the list of non-profit organizations is open, i.e. federal laws their other organizational and legal forms may be envisaged.
It is impossible, in our opinion, to attribute subsidiaries and dependent business companies to a special organizational and legal form, since they are created in one of the specified BPF 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, but without the status of a legal entity and without the right to be a party to the transaction on its own behalf.
As an additional criterion (grounds) for the classification of legal entities, the scope of legal capacity can also be distinguished:
- organizations with general legal capacity having the right to engage in any type of activity (all business partnerships and companies)
- organizations with special legal capacity, engaged only in those types of activities that are determined by their charters (all other organizations).
To understand the essence and foundations of the differences between commercial organizations, one should recall the history of the emergence and development of entrepreneurial activity.
At first, a craftsman, merchant, relying on his natural economy and property, using their abilities, produced goods.
Then, in connection with the expansion of market needs and the need for cooperation, the artisan and merchant began to unite with their colleagues, combining not so much capital as labor resources(personal and hired).
As such associations developed and their size increased, they began to combine not so much labor as capital.
The historical process of changing the ratio of labor and capital in business structures can be characterized by the following graph:
Legend:
IP - individual entrepreneur
PT - full partnership
KT - limited partnership
PC - production cooperative
LLC - Limited Liability Company
ALC - additional liability company
CJSC - closed joint stock company
OJSC - open joint stock company
This graph shows the ratio of labor and capital combined in various forms commercial organizations. Obviously, the less importance is attached to the labor contributions of the participants, the more developed form of association can be used by the participants.
From the schedule, it becomes clear why the participants in a general partnership conclude only an agreement, and shareholders only approve the charter.
This schedule also reflects the responsibility of the participants for the debts (obligations) of the organization they created.
Business partnerships differ from business companies in that partnerships unite persons (individuals and / or legal entities), and companies - capitals. This means that members of a partnership MAY not participate in its activities, while members of a partnership MUST participate.
From this, as well as from the fact that participants in partnerships are fully liable for the debts (obligations) of partnerships, it follows that the participation of one person in several partnerships is prohibited.
Citizens - participants of partnerships can only be individual entrepreneurs.
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 fixed in the constituent documents during the state registration of the organization, and the peculiarities of his status, as a rule, disappear after registration. A shareholder is a member of a joint stock company.
Essential characteristics of organizational and legal forms of COMMERCIAL organizations
General partnership
A form that is practically not used in Russia. A general partnership implies full joint and several liability of the founders (participants) for the obligations of the partnership with ALL their property, belongings. With joint liability of debtors, any creditor has the right to collect debts from any debtor in full (and 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.
The participants of a full partnership are individual entrepreneurs or legal entities who have combined their efforts and capital to conduct joint business activities.
The law does not establish the minimum amount of the share capital of a general partnership, tk. creditors in case of insufficiency of this capital levy execution on all the property of the participants in the partnership.
Conducting partnership affairs (management, conclusion of transactions) is possible in several ways:
each participant himself concludes transactions for which everyone is responsible;
all transactions are concluded by unanimous decision of the participants;
all transactions are concluded by the decision of the participants, adopted by a majority of votes;
one or more participants may enter into transactions;
a combination of these methods, depending on the type, scale of the transaction.
Limited partnership, on the basis of official authority
Participants are liable within the limits of their contributions to the authorized capital, but there is an exception to this rule. 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 contributors (limited partners) simply invest their capital in the partnership, have the right to receive profit, but are not liable for the obligations of the partnership (except for the risk of losing the investment) and do not participate in case management. Depositors don't even sign memorandum of association for the establishment of this association. The investor may not be an individual entrepreneur.
This form is transitional from partnerships to companies, firstly, according to the degree of responsibility: from full responsibility from the first type of participants to the limited liability of contributors, and, secondly, according to the degree of participation: from personal participation to capital participation.
It also combines the serious advantages of partnerships and societies. The issuer - the investor of capital - risks less 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 already requires the creation of governing bodies, and hence the development of a charter regulating issues of internal and external activities society.
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 it must be executive acting on behalf of an organization without a power of attorney
According to Art. 56 of the Civil Code, “if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the legal entity’s property or other persons who have the right to give instructions binding on this legal entity or otherwise have the ability to determine its actions, such persons in case of insufficiency property of a legal entity may be subject to subsidiary liability for its obligations. Subsidiary is the liability in which, in the absence of sufficient property of a legal entity, the debtors' claims are presented to the participants, and they pay with their property.
Additional Liability Company (ALC)
It differs from a limited liability company in that the participants are liable not only within authorized capital, but also additionally by a certain amount, a multiple of the authorized capital. For example, the authorized capital of an ALC is 10 million rubles. The charter determines that the company bears an additional five-fold liability. This means that if the property of the company 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 legally 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 the creation of a joint-stock company is the announcement by the founder of the creation of a joint-stock company, i.e. 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 distinguishes a joint-stock company 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 MAY increase to some amount.
The next difference from an LLC is that in a limited liability company there is the possibility of “withdrawal” from the membership with the withdrawal of its share of the property. In a joint-stock company, there cannot be such an opportunity, because. when “entering” the company, the participant (shareholder) did not contribute property, but bought shares. Accordingly, he, as the owner of securities, has the right to sell them to anyone who wants to buy them, but he 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 when members leave.
Another difference between an LLC and a JSC is that in a joint-stock company there is always the possibility to alienate shares to third parties (not shareholders), and the charter of an LLC may contain a prohibition on the alienation of shares to third parties. In compensation for this restriction, as already noted, a participant in an LLC may, upon exit, demand the value of his share of the property from the company.
The Law of the Russian Federation "On Joint Stock Companies" quite seriously changed the legislation governing this form of organization.
On the one hand, the law thoroughly spells out the 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 of the general meeting, detailed regulation of the procedure for preparing and holding a general meeting, etc.)
On the other hand, measures are provided to protect the management of the organization from the interference of incompetent shareholders in solving private production issues, from the possibility of making decisions that bring momentary income and undermine the development of production. (For example, limiting the competence of the general meeting to a range of strategic issues, restrictions on the payment of dividends, consideration of a number of issues at the meeting only on the recommendation of the Board of Directors, etc.)
Production cooperatives
A production cooperative is 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. 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, their powers when concluding transactions, it is necessary to take into account the rules (norms) of Article 294-300 of the Civil Code of the Russian Federation, as well as the provisions of the Federal Law of the Russian Federation “On State and Municipal Unitary Enterprises”.
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 to take part, get a share in such an enterprise to other legal or natural persons. By the way, the term "authorized capital" in these enterprises has been transformed into " statutory fund"because the property is not alienated by the founder, is not transferred to ownership, but is given to economic management - to a certain "fund".
A state-owned unitary enterprise differs from its counterparts in that it is based on property that is in federal ownership, 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 liable for the debts of the state enterprise, while the owner of the state and municipal enterprise is not responsible for his debts.
Unlike most commercial organizations, enterprises have a special rather than a 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 activity. Transactions that are concluded in violation of the subject of activity are void (Article 168 of the Civil Code of the Russian Federation).
By the way, it will be noted that an 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.
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, bodies of public amateur performance, unions of public associations) to meet any needs. These organizations are authorized to conduct entrepreneurial activities that correspond to the goals of the organization. Therefore, if there is a need to use this form for doing 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 of the fund from other forms is that the founders of the fund, after its establishment and registration, lose all rights to the fund and its property. The fund exists, as it were, on its own and is managed board of trustees. The foundation can engage in entrepreneurship only through the business companies it creates.
Non-Profit Partnerships
A completely new form. The association of property of members is similar to a limited liability company, but members of the partnership have the right, upon withdrawal or exclusion from the partnership, to receive the contributed property or its value.
institution
An organization fully or partially financed by the founder - the owner of the property of the institution. The founder is liable for the obligations of the institution in case of insufficiency of the latter Money(not property). The founder can be both a citizen and a legal entity.
The law does not specify how many founders 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 he has the right to business.
Association (union)
This organization unites only legal entities. Association members bear subsidiary liability for its debts even for two years after leaving the association. Does not have the right to entrepreneurship.
consumer cooperative
The most familiar form to all (ZhSK, GSK, etc.). An exotic variety of her - consumer cooperation(a rudiment of “consumer unions”), which, in accordance with the Law of 1992, is a “society of shareholders”.
Members of the cooperative are annually obliged to cover the losses incurred by their contributions.
Homeowners associations
An analogue of a housing construction cooperative, but after the completion of construction. It is intended for the organization of communal provision of housing stock, which is in private ownership.
Summary comparative tables of characteristics of organizations
General definition of commercial organizations:
organization - a legal entity;
the main goal is to make a profit;
the possibility of distributing profits among the participants.
Types of commercial organizations
A business partnerships
1. general partnership
2. partnership in faith
B Business companies
3. Limited
4. with additional responsibility
5. joint-stock closed and open
To production cooperatives
D State and municipal unitary enterprises
|
Characteristic, sign |
Type of commercial organization |
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Constituent documents: |
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| charter | X | X | |||||
| treaty | |||||||
| charter and agreement | |||||||
| List of participants: | |||||||
| individuals | |||||||
| legal entities | |||||||
| physical/legal faces | |||||||
| The rights of the founders to the property of the organization: | |||||||
| obligatory | |||||||
| property (property) | |||||||
| no property | |||||||
| The procedure for the formation of property: | |||||||
| initial contributions | |||||||
| regular deposits | |||||||
| additional contributions | |||||||
| Responsibility of participants for the obligations of the organization: | |||||||
| absent | |||||||
The organizational and legal form is understood as a way of securing and using property by an economic entity and its legal status and business goals.
AT all-Russian classifier organizational - legal forms (OKOPF) each organizational - legal form corresponds to a two - digit digital code and the name of the organizational - legal form.
The OKOPF provides for the following types of organizational and legal forms.
1. A general partnership is a partnership whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations not only in the amount of contributions to the authorized capital, but with all the property belonging to them, that is " full, unlimited liability.
· Can be established by at least two persons.
· Members are required to participate in its activities.
· At the expense of contributions of participants the share capital is formed (there is no minimum size).
· Created and operates on the basis of the founding agreement, which is signed by all its participants.
Profits and losses are distributed in proportion to the participants' shares in the share capital (there may be a different procedure by agreement between the participants). Participants can be individual entrepreneurs and commercial organizations. Participants are called full partners. A simple partnership operates on the basis of a memorandum of association. Each participant contributes to the so-called "share capital". The amount of capital is not regulated by law.
2. Limited partnership (limited partnership) - a commercial organization based on share capital, in which there are two categories of members: general partners and limited partners. General partners carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property. Limited contributors are responsible only for their contribution.
3. Limited liability partnership (LLP) - type economic organization created by agreement of legal entities or individuals by combining their contributions in cash or in kind. Represents the most widely (after the joint-stock company) widespread form of entrepreneurial activity. The LLP has an authorized fund divided into shares, the amount of which is determined by the statutory documents, and is liable for obligations only within the limits of its contribution. The highest governing body is the meeting of participants (or representatives appointed by them). The executive body may be a directorate or a director. She (him) is controlled by audit committee. When resolving issues at a meeting of participants, the number of votes is determined in proportion to the size of the share of each participant in the statutory fund. When paying for a share, a member of the company is issued a share certificate, which is not a security and cannot be sold to another person without the permission of the company.
As an organizational and legal form, LLP ceased to exist in 1994 after the publication of the first part of the Civil Code. Instead of LLP, two forms appeared - limited liability companies and closed joint-stock companies. These forms have a lot in common. They differ from each other in that CJSCs issue shares, while LLCs do not (data on the founders are contained directly in the constituent documents).
4. A limited liability company is a commercial organization, that is, an organization pursuing profit making as the main goal of its activities and distributing the profit received among the participants. The Federal Law “On Limited Liability Companies” is in force.
In LLC (unlike partnerships) is transferred to the executive body, which is appointed by the founders either from among themselves or from among other persons. Members of the company retain the rights to strategic management by the company, which are carried out by them by holding periodic general meetings of participants. Unlike joint-stock companies, the competence of the general meeting of participants in a limited liability company can be expanded at the discretion of the participants themselves; additional rights may also be granted to individual participants.
Unlike joint-stock companies, the profit of a limited liability company can be divided among the company's participants not only in proportion to their shares in authorized capital company, but also otherwise in accordance with the Charter, the company (if a different procedure is provided for by the Charter).
Legislation Russian Federation imposes much lesser procedural requirements on the activities of a limited liability company (including as regards the convening of general meetings, disclosure of information, etc.) than on the activities of a joint-stock company.
The system of organizational and legal forms of legal entities, established Civil Code Russian Federation.
The Civil Code of the Russian Federation establishes a system of organizational and legal forms of legal entities:
General partnership
Limited partnership (limited partnership)
Limited Liability Company (LLC)
Joint Stock Companies of Workers (People's Enterprises)
Open Joint Stock Company (OJSC)
Closed Joint Stock Company (CJSC)
Subsidiaries and affiliates
Production cooperative
State and municipal unitary enterprises
Non-profit enterprises
The modern economy of the Russian Federation, based on a variety of forms of ownership, involves the functioning of enterprises of various organizational and legal forms.
The organizational and legal form of an enterprise is determined by a number of features: the formation procedure and the minimum amount of the authorized capital, liability for the obligations of the enterprise, the list and rights of founders and participants, etc.
A legal entity is an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, incur obligations, be a plaintiff and defendant in court. In general, a legal entity is an institution, enterprise, firm, corporation that meets certain attributes established by the legislation of the relevant state.
The above definition is consistent with the existing legislation of the Russian Federation. In connection with participation in the formation of the property of a legal entity, its founders may have rights of obligation in relation to this legal entity or real rights to its property. Legal entities, in respect of which their participants have rights of obligation, are economic partnerships and companies, production cooperatives.
Legal entities, on the property of which their participants have the right of ownership or other real right, include state and municipal unitary enterprises.
Legal entities can be organizations whose main purpose is to make a profit - commercial organizations, or their main goal is not related to making a profit - non-profit organizations. Legal entities that are commercial organizations can be created in the form of economic partnerships and companies, production cooperatives, state and municipal unitary enterprises, i.e. in the form of those persons in respect of which their founders have property and liability rights.
Enterprises (firms) that form the basis of the business sector are independent business units different forms of ownership, combining economic resources for the implementation commercial activities. Commercial activities are understood as activities for the production of goods and the provision of services for third parties, individuals and legal entities, which should bring commercial benefits to the enterprise, namely profit.
Enterprises existing and operating in the economy are quite diverse in terms of organizational and legal structure, scale, and profile of activity. However, with all the apparent diversity of possible types, they are divided into ordered groups, types for which quite specific norms of economic legislation have been developed that regulate their activities.
Business law allows for the existence of a whole range of forms of enterprises. Russian legislation recognizes, along with individual entrepreneurship, such forms as commercial organizations in the form of business partnerships (general and limited), companies (limited liability, joint-stock), production cooperatives, state and municipal enterprises.
Economic partnerships and companies play a significant role in the country's economy. The fundamental difference between them is that a partnership is an association of persons, while, as a rule, their active participation in the activities of the partnership is required, while a business company is an association of capital that does not require mandatory participation in the activities of the company.
Partnerships
In the Russian Federation, there are two types of business partnerships: a general partnership and a limited partnership.
A general partnership is a partnership whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property.
The minimum number of participants is two, the maximum is unlimited.
The minimum share capital is not less than 100 times the minimum wage.
Management of entrepreneurial activities of a general partnership is carried out by common consent of all its participants. Each participant of a full partnership has one vote when resolving any issues at the general meeting. Participants in a full partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership. That is, in fact, this statement means the unlimited liability of comrades.
One of characteristic features a full partnership is a high degree and measure of the property responsibility of its participants for the fulfillment of their obligations. In the event of an emergency financial situation, when partners who have united to conduct joint business activities have debts, they are liable for obligations not only with the property that they contributed and combined for entrepreneurship, but also with all their personal property.
As for the joint property intended for doing business, it represents a common shared property, belongs to all participants on a share basis. That is, each participant in a general partnership has his own share, his own share, corresponding to his property and monetary contributions to the partnership. The share reflects that part of the monetary value of the property of the partnership, which belongs to this participant.
A general partnership is a legal entity, an independent company, has a set of rights that allows it to act as a business entity.
So, it can act in court as a plaintiff and a defendant. Under the brand name, a general partnership is entered in the register of owners, it enters into contractual relations with other business entities, interacts, if necessary, with authorities state power assumes and fulfills certain obligations. Members of general partnerships are obliged to participate in the management of their affairs and activities.
The founding document of a general partnership is a constituent agreement that reflects all aspects of economic life.
A limited partnership (limited partnership) is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participants-contributors who bear the risk of losses associated with the activity partnerships, within the limits of the amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership.
The share capital of the partnership is formed on the basis of contributions (made by general partners) and shares (made by investors).
Citizens and commercial organizations can be general partners in only one limited partnership. A participant in a general partnership cannot be a general limited partner in a limited partnership.
As a rule, complementaries are in charge of affairs in a limited partnership; they lead and represent society.
Partners - contributors do not participate in commercial transactions. They are the investors of the society.
Partnerships, thus, act as a rather risky form of association of entrepreneurs, but under certain circumstances, the entrepreneur goes to use this form of cooperation with partners.
This organizational and legal form of the enterprise is typical for more large enterprises due to the possibility of attracting significant financial resources through a virtually unlimited number of partners. AT modern conditions a form of limited partnership is often used to finance businesses involved in real estate transactions. The advantage of partnerships of both types is a flexible structure, the ability to resolve many issues by agreement between the participants.
No super hard legislative regulation, management is quite simple and unformalized.
The main disadvantage of a partnership is the responsibility of the participants with their personal property (with the exception of contributors). Therefore, it is preferable to create partnerships in areas of business activity associated with the least risk - information, consulting services, etc.
Economical society
A business company is a commercial organization, the authorized fund of which is formed by one or more individuals or legal entities by contributing their shares (or the full amount of the authorized capital, if one person acts as a founder). As shares, monetary or material resources, intellectual capital, securities or property rights having a monetary value can be considered.
At the same time, an expert assessment of the value of intellectual capital and property rights in monetary form is carried out.
There are three types of business companies:
limited liability company (LLC)
additional liability company ALC)
joint-stock company (JSC)
Characteristics of a Limited Liability Company
In accordance with the Civil Code of the Russian Federation, companies belong to the category of commercial organizations, that is, those whose main purpose is to make a profit. In accordance with this provision, such organizations (with the exception of unitary enterprises and others provided for by law) have a general (universal) legal capacity.
Such legal entities may carry out any activities not prohibited by law. Separate types activities, the list of which is established by law, a legal entity can carry out only on the basis of a permit (license).
Members
In accordance with paragraph 2 of Art. 7 of the law, state bodies and local self-government bodies are not entitled to act as participants in companies, unless otherwise established by federal law. State bodies are usually divided into state authorities and state governing bodies. Obviously, these latter have the right to create societies.
A society can be founded by one person who becomes its sole participant. The company may subsequently become a company with one member.
The company cannot have as its sole participant another economic company consisting of one person.
The law limits the maximum number of participants to fifty.
If the number of participants in the company exceeds the limit established by this paragraph, the company must be transformed into an open joint-stock company or a production cooperative within a year. If within the specified period the company is not transformed and the number of participants in the company does not decrease to the limit established by this paragraph, it is subject to liquidation in judicial order at the request of the body carrying out state registration of legal entities, or other government agencies or bodies of local self-government, to which the right to present such a demand is granted by federal law.
Authorized capital
The authorized capital (fund) of any legal entity is the minimum guarantee of the interests of its creditors. The value of the authorized capital is a formal criterion for the reliability and solvency of the organization. The larger the authorized capital, the greater the credibility of the legal entity that owns it.
The size of the share of a company participant in the authorized capital of the company is determined as a percentage or as a proper fraction (paragraph 1, clause 2, article 14 of the Law). The size of the share of a member of the company must correspond to the ratio of the nominal value of his share and the authorized capital of the company.
The actual value of the share of a member of the company corresponds to a part of the value net assets a company proportional to the size of its share (paragraph 2, clause 2, article 14 of the Law). Thus, the legislator allocates the actual value of the share of a member of the company. It is equal to the value of the net assets of the company as of the date of determining its value, taken in proportion to the size of the share of the participant in the authorized capital. The company is obliged to pay the participant of the company who filed an application for withdrawal from the company the actual value of his share or to give him property of the same value in kind within six months from the end of the financial year during which the application for withdrawal from the company was submitted, unless a shorter period provided for by the company's charter.
Creation and termination of activities
Civil Code of the Russian Federation, being a regulatory legal act general, names an approximate list of requirements for the constituent documents of the company. It is specified in the Law. As for other companies, the founding documents for an LLC are the memorandum of association and the charter. In the founding agreement, the founders of the company undertake to create a company and determine the procedure for joint activities for its creation. The memorandum of association also determines the composition of the founders (participants) of the company, the size of the authorized capital of the company and the size of the share of each of the founders (participants) of the company, the amount and composition of contributions, the procedure and terms for making them to the authorized capital of the company upon its establishment, the responsibility of the founders (participants) of the company for violation of the obligation to make contributions, the conditions and procedure for the distribution of profits between the founders (participants) of the company, the composition of the company's bodies and the procedure for exit of the company's participants from the company (Article 12 of the Law). If the company is founded by one person, then the memorandum of association is not concluded, and the company operates only on the basis of the charter approved by this founder. In the event of an increase in the number of participants in the company (in the process of its creation) to two or more, a memorandum of association must be concluded between them (Article 11 of the Law).
The charter of each company must contain:
- full and abbreviated corporate name of the company (if the founders decided that the company will have an abbreviated name);
- information about the location of the company;
- information on the composition and competence of the company's bodies, including on issues constituting the exclusive competence of the general meeting of the company's participants, on the procedure for making decisions by the company's bodies, including on issues decisions on which are taken unanimously or by a qualified majority of votes;
information on the size of the authorized capital of the company;
information on the size and nominal value of the share of each member of the company;
rights and obligations of the company's participants;
information on the procedure and consequences of the withdrawal of a company participant from the company;
information on the procedure for the transfer of a share (part of a share) in the authorized capital of the company to another person; information on the procedure for storing documents of the company and on the procedure for providing information by the company to participants in the company and other persons;
Other information provided by the Law:
state registration of legal entities. The Company may be voluntarily reorganized in accordance with the procedure provided for by this Federal Law.
Other grounds and procedure for the reorganization of a company are determined by the Civil Code of the Russian Federation and other federal laws.
The reorganization of a company can be carried out in the form of merger, accession, division, separation and transformation. The company is considered reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of legal entities created as a result of reorganization.
When a company is reorganized in the form of a merger with another company, the first of them is considered reorganized from the moment it is included in the unified State Register legal entities records on the termination of the activities of the affiliated company.
State registration companies created as a result of reorganization, and making entries on the termination of the activities of reorganized companies, as well as state registration of changes in the charter, is carried out in the manner prescribed by federal laws. The state registration of companies established as a result of reorganization and the entry of records on the termination of the activities of the reorganized companies shall be carried out only upon presentation of evidence of notification of creditors in the manner prescribed by this paragraph.
Control
According to the new law, supreme body society is the general meeting of the participants of the company. The general meeting of participants in the company may be regular or extraordinary (Article 32, paragraph 1 of the Law). All members of the company have the right to be present at the general meeting of members of the company, take part in the discussion of agenda items and vote when making decisions.
Each member of the company has a number of votes at the general meeting of members of the company, proportional to his share in the authorized capital of the company, except as otherwise provided by the Law.
The law regulates in detail the procedure for holding a general meeting of participants in a company (Article 37 of the Law).
The charter of a company where a relatively large number of persons are members may provide for the establishment of a Board of Directors (Supervisory Board). Its competence is determined by the charter of the company.
The procedure for the formation and activities of the board of directors (supervisory board) of the company, as well as the procedure for terminating the powers of members of the board of directors (supervisory board) of the company and the competence of the chairman of the board of directors (supervisory board) of the company are determined by the charter of the company.
Members of the collegiate executive body companies cannot make up more than one-fourth of the composition of the board of directors (supervisory board) of the company. A person exercising the functions of the sole executive body of the company cannot be simultaneously the chairman of the board of directors (supervisory board) of the company. Management of the current activities of the company is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable to the general meeting of participants in the company and the board of directors ( supervisory board) society.
Sole executive body of the company ( general director, president and others) is elected by the general meeting of the company's participants for a period determined by the company's charter. The sole executive body of the company may also be elected not from among its participants.
An agreement between the company and the person exercising the functions of the sole executive body of the company is signed on behalf of the company by the person who chaired the general meeting of the company's participants at which the person exercising the functions of the sole executive body of the company was elected, or by the company's participant authorized by the decision of the general meeting of the company's participants. Only the individual, except for the case when the company, if it is provided for in its charter, has the right to transfer the powers of the sole executive body to the manager on the basis of the relevant agreement; this manager can be an organization.
The agreement with the manager is signed on behalf of the company by the person who chaired the general meeting of the company's participants, who approved the terms of the agreement with the manager, or by the company's participant authorized by the decision of the general meeting of the company's participants (Article 42 of the Law).
Rights and obligations of participants
The company has the right of ownership to the property assigned to it by the founders in the process of creation, and these latter, in return, acquire rights of obligation to the company. In accordance with Article 8 of the Law, the participants of the company have the right to:
participate in the management of the affairs of the company in the manner prescribed by this Federal Law and the constituent documents of the company;
receive information about the activities of the company and get acquainted with its accounting books and other documentation in the manner prescribed by its constituent documents;
take part in the distribution of profits;
sell or otherwise assign its share in the authorized capital of the company or part of it to one or more participants in this company in the manner prescribed by this Federal Law and the charter of the company;
withdraw from the company at any time, regardless of the consent of its other participants;
receive, in the event of liquidation of the company, part of the property remaining after settlements with creditors, or its value.
Members of the company also have other rights provided for by this Federal Law.
In addition to the rights provided for by the Law, the charter of the company may provide for other rights (additional rights) of the participant (participants) of the company. These rights may be provided for by the charter of the company upon its establishment or granted to the participant (participants) of the company by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.
A member of the company who has been granted additional rights may refuse to exercise the additional rights belonging to him by sending a written notice to the company. From the moment the company receives the said notice, the additional rights of the company's participant cease.
Along with the rights, the participants of the company have certain obligations, the necessary minimum of which is enshrined in the Law, according to which the participants of the company are obliged to:
make contributions in the manner, in the amount, in the composition and within the time limits provided for by this Federal Law and the constituent documents of the company;
not disclose confidential information about the activities of the company.
In addition to the obligations provided for by this Federal Law, the charter of a company may provide for other obligations ( additional responsibilities) participant (participants) of the company. These obligations may be provided for by the charter of the company upon its establishment or assigned to all participants in the company by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously. The imposition of additional obligations on a certain member of the company is carried out by decision of the general meeting of participants in the company, adopted by a majority of at least two-thirds of the votes of the total number of votes of the participants in the company, provided that the member of the company who is entrusted with such additional obligations voted for such a decision or gave written agreement.
One of the mandatory features of a legal entity is the presence of separate property and independent liability for its obligations with this property. All legal entities are usually divided into those that have the right of ownership to separate property and those that have other property rights to the property assigned to them. The company from the moment of registration acquires the right of ownership to the property transferred to it by the founders as contributions, the company is liable for its obligations with all the property belonging to it. In case of insolvency (bankruptcy) of the company due to the fault of its participants or through the fault of other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, the said participants or other persons may be held subsidiary liable if the company's property is insufficient. for its obligations (paragraph 2, clause 3, article 56 of the Civil Code of the Russian Federation, clause 3, article 3 of the Law).
Trade name
The company must have a full company name and may have an abbreviated company name in Russian and other languages.
The full corporate name of the company in Russian must contain the full name of the company and the words "limited liability company".
The abbreviated corporate name of the company in Russian must contain the full or abbreviated name of the company and the words "limited liability company" or the abbreviation LLC. The trade name of a company in Russian cannot contain other terms and abbreviations that reflect its organizational and legal form, including those borrowed from foreign languages, unless otherwise provided by federal laws and other legal acts of the Russian Federation (clause 1, article 4 of the Law) .
The trade name is also one of the signs of a legal entity and performs an identification function. A legal entity has the exclusive right to use its company name and has the right to demand from third parties that illegally use it to stop these actions and compensate for losses.
