Legal forms of associations in the field of entrepreneurship (holdings, associations (unions), simple partnerships, and others). Medentsov A.S. Business law Business associations 35 business associations

An association commercial organizations- a form of integration, the participants of which carry out coordinated entrepreneurial activities.

Classification can be carried out according to a number of criteria. By organizational and legal forms, there are: associations and non-profit partnerships, holdings, financial and industrial groups, associations of entrepreneurs based on a simple partnership agreement.

According to the economic content, there are: concerns, conglomerates, consortiums, cartels, syndicates, pools, etc.

Concern- a way of organizing interaction by centralizing production, scientific, technical, foreign economic functions, financial and investment activity, as well as service, commercial maintenance.

Conglomerate- a set of diversified organizations that do not have any common production bases, but are united by organizational or financial ties.

Consortium- a temporary contractual association of business entities that retain legal independence, created for the purpose of implementing large projects.

Cartel- a contractual form of association, the participants of which, while maintaining the status legal entity, financial, industrial and commercial independence, determine the overall marketing policy and pricing in order to increase influence on the commodity markets.

Syndicate- an association of a cartel type, whose members sell their goods through a single trading office, which can also purchase raw materials for members of the syndicate.

Pool- a contractual form of association, the participants of which do not lose legal independence, created to consolidate funds and minimize risks in order to distribute income received from joint activities.

According to the method of organization, associations of vertical and horizontal types are distinguished.

According to the criterion of legal personality, holdings, FIGs with partial (incomplete) legal personality or its individual elements are distinguished, since in certain cases they become subjects of regulated legal norms. public relations.

Association (union)- a non-profit organization, which is a contractual association of commercial organizations, created in order to coordinate their activities and protect common property interests.

Non-commercial partnership is a membership-based non-profit organization established to assist its members in the pursuit of public good goals.

Holding- a combination of the main (parent) company (partnership) and subsidiaries engaged in coordinated activities and interconnected by relations of economic dependence and control, allowing the main (parent) company (partnership) to determine the conditions for conducting activities by subsidiaries.

Financial and Industrial Group (FIG)- a form of association of legal entities for the purposes of technological and economic integration.

Types of FIGs: 1) a set of legal entities included in the group, acting as the main and subsidiaries; 2) a set of legal entities that have combined, in whole or in part, their tangible and intangible assets on the basis of an agreement on the creation of FIGs.

Basic concepts

Association (union) - a non-profit organization, which is a contractual association of commercial organizations, created in order to coordinate their business activities and protect common property interests.

The association of commercial organizations is a form of integration, the participants of which carry out coordinated business activities.

Financial and industrial group (FIG) - a form of organizational association of legal entities for the purpose of technological and economic integration.

Holding ( holding company) - a combination of the main (parent) company (partnership) and subsidiaries engaged in coordinated entrepreneurial activities and interconnected by relations of economic dependence and control, allowing the main (parent) company (partnership) to determine the conditions for conducting entrepreneurial activities by subsidiaries.

Basic regulations

Civil Code of the Russian Federation - Articles 105, 106, 121-123.

Federal Law No. 14-FZ of February 8, 1998 "On companies with limited liability- Article 6.

Tax Code of the Russian Federation - Articles 20, 40.

Federal Law of November 30, 1995 N 190-FZ "On Financial and Industrial Groups" // SZ RF. 1995. N 49. Article 4697 (hereinafter referred to as the Law on FIGs).

Decree of the President of the Russian Federation of November 16, 1992 N 1392 "On measures to implement industrial policy during privatization state enterprises"(as amended, including September 5, 2001) // SAP RF. 1992. N 21. Art. 1731; SZ RF. 1998. N 10. Art. 1157; N 16. Art. 1832; 2000. N 44. Article 4349, 2001, No. 1 (Part II), Article 69, No. 37, Article 3672.

Regulation of the Federal Securities Commission and stock market under the Government Russian Federation dated May 14, 1996 N 10 "On the procedure for publishing information on the acquisition by a joint-stock company of more than 20 percent of the voting shares of another joint-stock company" // Bulletin of the FCSM of Russia. 1996. N 3.

AT modern Russia as a result of natural integration processes of concentration of production and capital, certain forms of associations of entrepreneurs have developed. Associations also arose as a result of the reverse process - the disaggregation of organizations, when, as a result of reorganization or establishment, a group of business companies, including the main and subsidiaries, appears in the place of one legal entity.

Consideration of the problem of associations of commercial organizations is directly dependent on the recognition various forms business associations (holdings, financial and industrial groups, etc.) that do not have the status of a legal entity, business entities.

Associations * (296) of the commercial organizations are understood as the form of integration which participants carry out the coordinated entrepreneurial activity. Classification of business associations can be carried out according to a number of criteria. So, from the point of view of organizational and legal forms of associations, it is necessary to single out: associations (unions) and non-profit partnerships, holdings, financial and industrial groups, associations of entrepreneurs based on a simple partnership agreement * (297).

According to the criterion of economic content, based on the purpose of creating an association, the principles of centralization of certain production and economic, commercial functions, the distribution of powers between the participants in the association, distinguish: concerns, conglomerates, consortiums, cartels, syndicates, pools, etc. * (298)

A concern is a way of organizing the interaction of business entities by centralizing production, scientific, technical, foreign economic functions, financial and investment activities, as well as service and commercial services. The concern is an economic unity; centralized management is a hallmark of the concern.

Conglomerate - a set of diversified organizations that do not have any common production bases, but are united by organizational or financial ties.

A consortium is a temporary contractual association of business entities that retain legal independence, created for the purpose of implementing large projects.

A cartel is a contractual form of association of economic entities, the participants of which, while maintaining the status of a legal entity, financial, industrial and commercial independence, determine a common marketing policy and pricing in order to increase their influence on commodity markets.

A syndicate is an entrepreneurial association of a cartel type, whose members sell their goods through a single trading office, which can also purchase raw materials for the members of the syndicate.

A pool is a contractual form of an entrepreneurial association, the participants of which do not lose their legal independence, created to consolidate funds and minimize business risks in order to distribute income received from joint activities at the end of the "pool" period. Pools have become widespread in the field of insurance, trade, exchange, patent and other services * (299).

The goals of associations can be realized as a result of the formation of a certain legal form. So, for example, concerns, as a rule, are embodied in the form of a holding; cartels, consortiums, pools can be created in the form of a simple partnership. Syndicates that have a specialized sales office in their structure, in modern market conditions may take the organizational form of financial-industrial groups or holding companies.

According to the method of organization of the association (voluntary or forced), it is possible to distinguish associations of vertical and horizontal types. To associations vertical type or unequal associations based on economic subordination and control include holding companies proper, as well as holding-type associations: unitary enterprises with economic companies (partnerships) in which they have a controlling interest * (300), non-profit organizations with the business companies they created. Horizontal type associations or equal associations based on voluntary cooperation relations include contractual forms of associations: associations (unions), non-profit partnerships, simple partnerships. Financial and industrial groups, defined in the legislation as a set of legal entities (1) operating as a parent company and subsidiaries, or (2) fully or partially merging their assets on the basis of an agreement on the creation of FIGs, depending on the form of creation, can be classified in accordance with criterion of voluntariness of creation to the first or to the second group. Financial-industrial groups operating as a combination of parent and subsidiaries are vertical-type associations based on economic subordination and control. Financial-industrial groups formed in accordance with an agreement on the creation of a group by pooling resources and establishing a central company are classified as horizontal type associations.

It is possible to classify associations according to the criterion of legal personality * (301).

From the point of view of the traditional civilistic approach, which recognizes only legal entities as collective subjects of civil legal relations, only associations (unions) are considered to be legal entities; all other associations that do not have the status of a legal entity are non-legal entities * (302).

On the contrary, the followers of entrepreneurial law, when determining the subject of entrepreneurial law and legal personality in economic turnover, refused to use the fiction of a legal entity * (303). Legal entities are considered by them as one of the types of subjects of entrepreneurial law, along with which, in particular, holdings, FIGs, consortia, syndicates, and pools are recognized as legal entities.

We adhere to the point of view existing in the legal literature on the possibility of recognizing entrepreneurial associations that are not legal entities with partial legal personality. So, for example, V.V. Laptev considers that production and economic complexes as a whole, as a system, not being legal entities, have some elements of entrepreneurial legal personality * (304).

Holdings, FIGs have partial (incomplete) legal personality or its individual elements, since in certain cases they become subjects of public relations regulated by the law. Thus, in Article 4 of the Law on Competition in Commodity Markets, the legislator, ignoring the form (shell) of a legal entity, considers financial-industrial groups and other groups of persons connected by relations of dependence (economic, organizational, etc.) as single economic entities. From the point of view of antimonopoly law, it is assumed that participants in a group of persons (formally autonomous legal and (or) individuals) are constituent parts overall structure, are managed from a single center and are engaged in entrepreneurial activities to achieve the interests of a group of people as a whole.

Persons connected by relations of economic dependence are "not indifferent" not only to antimonopoly, but also to tax legislation. Article 20 of the Tax Code of the Russian Federation contains the concept of "interdependent persons", which, in particular, are organizations if one of them participates in another and the total share of such participation is more than 20%. The allocation of the category of interdependent persons turned out to be necessary for the possibility of exercising control by the tax authorities regarding the pricing of transactions performed between related persons. The use of "transfer pricing" between participants in business associations makes it possible to underestimate the taxable base, and thus it poses a danger to the state. It is interesting that the economically developed capitalist states were "forced" to recognize a "group of persons" as a subject of legal relations, including concern for their well-being * (305).

These groups of persons have different names in various countries: related enterprises, including concerns in Germany, a group of partnerships in France, holding companies in the UK and the USA, etc., but the essence of such formations is the presence of an association of participants that does not have the status of a legal entity, based on economic subordination and control of one participant over others.

The state of the Russian market economy at the moment is such that it is not possible to recognize associations of commercial organizations as subjects of individual business relations, although they do not have the status of a legal entity, but have an agreed economic policy and consolidated on the market, it would be dangerous primarily for the state itself, as well as other participants in civil circulation: creditors, shareholders of subsidiaries, etc. In favor of the traditional concept, according to which only legal entities have legal personality among collective subjects of law and that legal personality can either to be or to be completely absent, it is impossible to abandon the objective processes of development of market relations in Russia and the need for legal regulation of new forms of integrated economic entities, which are business associations that do not have the status of a legal entity.

Associations or unions (hereinafter referred to as associations) are contractual associations of commercial organizations created for the purpose of coordinating business activities, representing and protecting their common property interests (Article 121 of the Civil Code of the Russian Federation). Associations are legal entities with all the ensuing legal consequences, including: independent property liability for their obligations with property owned by them, the ability to act in civil circulation on their own behalf. Association members retain their independence and the rights of a legal entity. The Association is not liable for the obligations of its members, the members of the Association bear subsidiary liability for its obligations in the amount and in the manner prescribed by the founding documents. Subsidiary liability of association members is an important feature of its legal status. As a rule, such liability arises in proportion to the size of the contribution of a member of the association. Associations can engage in entrepreneurial activities only by creating business companies and participating in them.

A non-profit partnership is a membership-based non-profit organization established by citizens and/or legal entities to assist its members in achieving goals aimed at achieving public benefits (Article 8 of the Law on Non-Profit Organizations). Such goals, along with others, may include protecting the interests of participants, resolving disputes and conflicts, providing legal assistance, etc. The qualification of non-profit partnerships that unite commercial organizations as associations of entrepreneurs is confirmed by the Law on the Securities Market, which obliges form non-profit partnership(part 2 of article 11).

Holdings * (306) - the most widespread form of association of the commercial organizations of vertical type in market relations based on relations of economic subordination and control * (307). In Russia, holdings first arose during the privatization of large state-owned enterprises in accordance with the Provisional Regulation on holding companies created during the transformation of state-owned enterprises into joint-stock companies * (308). The specified Regulation, which applies only to those holding companies, the share authorized capital of which, which is state-owned, exceeds 25%, is recognized as a holding company by an enterprise, regardless of its organizational and legal form, whose assets include controlling stakes in other enterprises. It is clear that this definition with the development of market relations and legislation is hopelessly outdated.

Holding or holding company - a set of legal entities, consisting of the main (parent) company (partnership) * (309) and subsidiaries engaged in coordinated production, trading, financial or other business activities and interconnected by relations of economic dependence and control, allowing the main (parent) company (partnership) to determine the decisions of subsidiaries.

Expanding the concept of the main and subsidiaries (Article 105 of the Civil Code of the Russian Federation, Article 6 of the JSC Law, Article 6 of the LLC Law), the legislator leads open list possible grounds for establishing control of the parent company over subsidiaries:

Predominant participation in authorized capital, which does not have to exceed 50% of voting shares (participatory interests) of the company. With a large number of shareholders or participants and the "dispersion" of the controlling stake in individual companies, a significantly smaller number of votes (shares) is required to achieve overwhelming influence.

The existence of an agreement according to which one society is forced to obey another. It could be a deal trust management, on joint activities, credit, mortgage, pledge of securities, other business agreement.

Among the agreements that create relations of subordination, some authors include an agreement with a management company, to which the powers of the executive body of the company * (310) are transferred. In our opinion, when transferring the function of the executive body of an organization to another legal entity, holding relations in their "meaningful" meaning do not arise, since relations of economic dependence are not created between the managing organization and the economic company, they do not act with agreed goals and, although the effectiveness of the activity management company affects the economic results of the controlled society, but not in connection with control over it. On the contrary, in accordance with the law, the managing organization, as the executive body of a business entity, is accountable to the general meeting and the board of directors; when exercising rights and performing duties, must act in the interests of society in good faith and reasonably; it is liable to the company for losses caused to the company by guilty actions (inaction), unless other grounds and amount of liability are established by federal laws (Article 53 of the Civil Code of the Russian Federation). The company and, accordingly, the shareholder(s) owning in the aggregate not less than 1% of the placed ordinary shares companies (Article 71 of the JSC Law). By decision of the general meeting of shareholders of the company, the powers of the managing organization may be prematurely terminated at any time if its managerial activity as an executive body will be ineffective (clause 4, article 69 of the JSC Law).

The presence of another opportunity to determine the decisions of society. The parent company can exert a suppressive influence on decision-making by the subsidiary by participating in general meetings of shareholders (members) and boards of directors of the subsidiary, using the right to appoint executive bodies and in other ways. The controlling effect of the main company may also consist in the distribution of production and economic functions between the structures of a mixed holding * (311), where the main company, along with the ownership of controlling stakes in subsidiaries, also carries out independent production and / or commercial activities. The parent company usually strategic planning, organizes financial flows, oversees the investment, innovative activity, carries out legal, personnel, Information Support subsidiaries, establishes the methodology accounting in subsidiaries and carries out consolidated accounting of the holding, often organizes marketing and sales of products of subsidiaries.

The legislator does not exhaust all possible varieties of economic dependence in the relationship between the main - subsidiary company and, as follows from the above methods, the definition of a company as a subsidiary puts a qualitative criterion at the head (in contrast to the definition of the categories "predominant - dependent company", based on a quantitative criterion) *(312).

Holdings are associations of commercial organizations, although they are connected by relations of economic dependence, but do not lose their legal independence. The holdings themselves are not legal entities and are not subject to state registration, such an organizational and legal form of commercial organizations is not provided for by the Civil Code of the Russian Federation. Holding companies are a typical case of business associations with partial legal personality. In some business relations, the holding company acts as a subject of law, for example, from the point of view of antimonopoly legislation, it is a single economic entity * (313).

Recognition of a set of legal entities as a holding entails a number of legal consequences, including in terms of establishing special requirements for protecting the interests of creditors, shareholders (participants) of subsidiaries. Countries with a developed legal order have found a solution to this problem in recognizing, under certain conditions, the possibility of imposing property liability for transactions of subsidiaries not only on them, but also on the main companies that really determine their will. At the same time, the law, as it were, neglects the shell of a legal entity, designed to prevent creditors from accessing the property of its participants (shareholders). Such situation has received the name "removal of corporate covers" * (314).

Protecting the interests of a subsidiary and its creditors, the Civil Code of the Russian Federation (clause 2 of Article 105) establishes two cases of liability of the parent company (partnership) for the debts of the subsidiary:

1. Joint and several liability arises for transactions entered into by a subsidiary in pursuance of the mandatory instructions of the parent company, if this parent company has the right to give instructions to the subsidiary.

2. Subsidiary liability arises if, through the fault of the main company, the bankruptcy (insolvency) of the subsidiary has occurred.

It should be noted that the JSC Law established a restrictive condition for bringing the main joint-stock company to liability for the debts of the subsidiary - holding the main company jointly and severally liable for the transactions of the subsidiary is possible only if the charter or agreement contains special provisions on the right of the parent company to give instructions to the subsidiary, which significantly reduces the real opportunities to protect the interests of the subsidiary and its shareholders, since the main companies have real opportunities to disguise their right to give instructions to the subsidiary.

When determining the possibility of bringing the parent company to liability in the event of bankruptcy of a subsidiary from the point of view of the subjective side of the actions of the parent company, as a result of which the insolvency of the subsidiary has occurred, the Civil Code of the Russian Federation and the Law on LLC operate with the concept "through the fault of the parent company", which implies the possibility of both intent and and negligence, and the JSC Law requires the presence of deliberate intent in the actions of the main company. There is a conflict between the norms of the Civil Code and the Law on Joint Stock Companies, which, by virtue of clause 2, article 3 of the Civil Code of the Russian Federation, should be resolved in favor of the application of the norms Civil Code.

The legislation establishes the right of participants (shareholders) of a subsidiary to demand compensation by the main company for losses caused through its fault to the subsidiary (clause 3 of article 105 of the Civil Code of the Russian Federation, clause 3 of article 6 of the Law on LLC, clause 3 of article 6 of the Law on JSC ). The joint-stock law in this norm, in contrast to the relevant norms of the Civil Code of the Russian Federation and the Law on LLC, establishes that losses are considered caused through the fault of the main company only if there is guilt in its actions in the form of intent (clause 3, article 6 of the JSC Law uses legal construction "knowingly"). Since the Civil Code of the Russian Federation establishes that the participants (shareholders) of a subsidiary have the right to demand compensation by the main company for losses caused through its fault to the subsidiary, unless otherwise provided by laws on business companies, there are no contradictions between the Civil Code and the Law on JSC.

It should be recognized that there is a need to improve the legal mechanism that ensures the protection of the interests of a subsidiary. Thus, it seems appropriate in the JSC Law to establish a presumption of liability of the parent company for the debts of the subsidiary arising as a result of the execution of the instructions of the parent company, regardless of whether the charter and/or agreement stipulates the right of the parent company to give such instructions. The JSC Law should eliminate the need for direct intent (the "knowingly" construction) when bringing the parent company (partnership) to subsidiary liability for the debts of the subsidiary in the event of its insolvency (bankruptcy), as well as when compensating for losses by the parent company (partnership) upon request shareholders of the subsidiary. The actions of the main company may be seen as a different form of guilt in accordance with Article 401 of the Civil Code of the Russian Federation. You should also consider the possibility of engaging the parent company for the debts of the subsidiary if there is a fact of indirect control - through third parties.

Financial and industrial groups - a form of organizational association of legal entities for the purpose of technological and economic integration for the implementation investment projects aimed at increasing competitiveness, expanding the market for goods and services, increasing production efficiency, creating new jobs (Article 2 of the FIG Law). FIGs are not independent organizational and legal form legal entities provided for by the Civil Code of the Russian Federation. They have separate elements of legal personality, for example, in legal relations regulated by antimonopoly and tax laws. For example, the Competition Act commodity market recognizes FIG as a group of persons or a single economic entity (Article 4). For FIGs, the possibility of consolidated (consolidated) accounting, reporting and maintaining a single group balance sheet has been established (Article 13 of the Law on FIGs). Members of FIGs retain their legal independence.

The Law on FIGs in Article 2 names two possible types of FIGs: (1) the totality of legal entities included in a group, acting as a parent company and subsidiaries; (2) a set of legal entities that have combined, in whole or in part, their tangible and intangible assets on the basis of an agreement on the creation of a FIG.

The first type of FIG is essentially a holding company, which becomes the basis for creating a group. The participants of the first type of financial-industrial group are the main and subsidiaries, respectively; the second type - legal entities that have signed an agreement on the creation of FIGs, and the central company established by them. According to statistics, almost all official Russian financial-industrial groups were created by signing an agreement on the creation of a financial-industrial group and the establishment of a central company * (315). Thus, FIGs are now widespread in the form of so-called soft non-holding corporations based on friendly integration * (316).

It should be noted that the vast majority of norms of the Law on FIGs are devoted to this type of FIG. A financial and industrial group of this type is created by concluding an agreement on the establishment of a FIG (simple partnership) by the group members, in accordance with which a central company is established, i.e. the central company is essentially a subsidiary or dependent company in relation to other participants in the financial and industrial group. According to the Law, the central company can be created in the form of an associative association of participants, and in this case there are even more legal paradoxes than in the case when the central company is a subsidiary (dependent) company. The central company acts in accordance with its charter, as well as the terms of the simple partnership agreement.

The law establishes the mandatory participation in FIGs of organizations operating in the production of goods and services, as well as banks or other credit organizations: investment institutions, non-state pension and other funds, insurance organizations, whose participation is due to their role in ensuring the investment process in FIGs. According to experts, the share of investments of financial and credit institutions in the consolidated assets of FIGs is on average 10% * (317). There are a number of statutory prohibitions and restrictions on participation in FIGs. Religious and public organizations. Subsidiaries can be part of FIGs only together with their parent company. Participation of organizations in more than one FIG is prohibited.

According to the Law on FIGs, financial and industrial groups are transnational if among their participants there are legal entities that are under the jurisdiction of the CIS member states or have subdivisions on the territory of these states, or carry out capital construction there. A transnational company established on the basis of an intergovernmental agreement acquires the status of an interstate FIG.

The supreme governing body of the FIG is the Board of Governors of the FIG, which includes representatives of all its participants. The central company is the body authorized to manage the affairs of FIGs, representing FIGs in civil circulation. The organization acquires the status of a central company from the moment of state registration of the FIG and loses this status from the moment the group is liquidated. The central company acts on behalf of the participants of the FIG, prepares an annual report on its activities, maintains a consolidated (consolidated) accounting, reporting, draws up the balance sheet of the FIG, and performs certain banking operations in the interests of the participants.

Exploring the features of FIG as an association in the field of entrepreneurship, it is important to note two significant points:

1) the powers of the governing bodies of FIGs do not apply to all commercial activities of its members. The controlling influence of the FIG bodies concerns only the general activities of the participants in the group. This general activity limited to the goals of creating FIGs, part of the assets combined to achieve these goals.

2) the participants of the FIG are jointly and severally liable for the obligations of the central company arising from participation in the activity of the FIG. Features of bringing to joint liability are established by the agreement on the establishment of FIGs.

Brief conclusions

1. Entrepreneurial associations are holding companies, financial and industrial groups, associations of entrepreneurs in the form of a simple partnership. Associations (unions), non-profit partnerships do not belong to proper entrepreneurial associations, since they are non-profit voluntary associative organizations created not for direct entrepreneurial activity, but only to promote and coordinate the entrepreneurial activities of participants.

2. There are various criteria for classifying associations of commercial organizations:

according to the legal forms of their organization (holdings, FIGs, etc.);

by economic content (concerns, conglomerates, consortiums, cartels, syndicates, pools, etc.);

according to the method of organizing the association (voluntary - associations of a horizontal type, forced - associations of a vertical type);

by the presence of legal personality (legal, partially legal, non-legal).

3. Holdings - the most common form of association of commercial organizations of a vertical type in market relations, based on relations of economic subordination and control. Holdings are not legal entities, they have partial legal personality.

4. The structure of the holding company consists of two groups of participants:

main (maternal) economical society(joint-stock, limited or additional liability) or partnership (full, limited);

subsidiary or dependent economic company (joint stock, with limited or additional liability).

5. Legislation recognizes various possibilities for establishing economic control of the parent company (partnership) over the subsidiary:

predominant participation in the authorized capital;

the existence of a contract;

another opportunity to determine decisions (the range of possible options for determining decisions is wide: the appointment of management bodies of a subsidiary, the distribution of production and economic functions among the holding's participants, etc.).

6. Financial and industrial groups - business associations with partial legal personality. FIGs are not legal entities. Members of FIGs retain their legal independence.

7. The current legislation provides for two possible types of FIGs: (1) a set of legal entities included in a group, acting as a parent company and subsidiaries; (2) a set of legal entities that have combined, in whole or in part, their tangible and intangible assets on the basis of an agreement on the creation of a FIG.

Questions

1. What is a business association?

2. What types of business associations do you know?

3. What is a holding company? What groups of participants form its structure?

4. List possible ways establishing control of the main company over subsidiaries.

5. In what cases can the parent company be held liable for the debts of a subsidiary? Describe the features of the legal regulation of the liability of the main company for the debts of the subsidiary.

6. What is a business association in the form of a financial and industrial group?

7. What types of FIGs are provided current legislation?

8. How is FIG managed?

Kulagin M.I. Selected works. From the series "Classics of Russian civil law". M., 1997.

Motylev V.E. financial capital and organizational forms. M., 1959.

Petukhov V.N. Corporations in the Russian Industry: Legislation and Practice. M., 1999.

Popova E., Popov E. Corporate Veil // Economy and Law. 2002. No. 12.

Rudashevsky V.D. Legal status of financial and industrial groups: opportunities and limitations // State and Law. 1998. No. 2.

Ruzakova E.V. Entrepreneurial multi-subject formations: legal model and reality // Legal status of business entities. Sat. scientific Proceedings / Ed. V.S. White. Yekaterinburg, 2002.

Feldman A.B. Corporate capital management. M., 1999.

Shitkina I.S. Business associations. M., 2001.

Shitkina I.S. Holdings. Legal and managerial aspects // Library " Russian newspaper". 2002. Issue 11.

The most important social consequence of the development of entrepreneurship without the formation of a legal entity is

Foreign exchange market in the field of foreign economic activity

Types of contracts in the field of entrepreneurial activity

Business entities in order to coordinate their activities, to represent and protect common property and other interests, as well as for other purposes, may create various associations.

Depending on the economic content based on the purpose of creating an association, the principles of centralization of certain production and economic functions, the distribution of powers between the participants of the association in scientific literature distinguish the following types of such associations.

1. Concerns represent an economic unity; centralized management is a hallmark of concerns. They are voluntary associations of corporations based on the centralization of production functions, scientific and technical policy, investment, financial and technical policy, foreign economic activity, which have as their goal the organization of commercial services. Concerns can create economic organizations (centers, services, etc.), legal status which they define themselves. The management of the concern is carried out by the bodies (management board, head) elected by its participants.

The relationship between the members of the concern is quite rigid, although they are built on a contractual basis, and not in the order of hierarchical dependence. For example, without the consent of the concern, its members cannot be simultaneously members of other concerns or associations. The members of the concern, in accordance with its founding documents, may bear subsidiary legal liability for the obligations of the association, and it, in turn, will be liable for the obligations of the members. Finally, concerns often create their own corporations, acting in relation to them as a founder (for example, foreign trade, advertising, marketing, consulting, etc.).

Concerns are divided into vertical and horizontal. Vertical concerns have a very complex structure and unite firms from various industries involved in a related production and technological process (for example, mining - metallurgy - mechanical engineering). Horizontal concerns are simpler in structure, since they combine corporations belonging to the same industry.

2. Consortiums are temporary unions, associations on a share basis, which arise between several banks and industrial corporations at once for the joint placement of a loan or the implementation of a single capital-intensive project. In some respects, financial and industrial groups in Russia are similar to them. A consortium is usually created in cases where the project exceeds the financial capacity of one bank. It can also be formed without the direct participation of banks by the industrial corporations themselves who have decided to unite and have the necessary financial possibilities. The purpose of such an association may be the implementation of programs, projects, government orders. At the same time, enterprises can retain departmental affiliation. Consortiums are created for the duration of programs, projects, orders.

The activities of this type of associations are based on the disposal of share contributions and resources. It is possible to attract borrowed money with the consent or on behalf of the participants.

Responsibilities among the participants of the consortium are distributed based on who has shown himself better in a particular area or field of activity, or who can reduce costs to a minimum. Often, consortiums arise at the junction of various industries.

The consortium represents the interests of its members before government bodies. For this purpose, executive bodies are created in its structure. However, it is also permissible to order one of the participants to perform representative functions. If during the course of the project it becomes necessary to create any economic organization, then the consortium has the right to do so.

The governing bodies of this type of association exist on deductions from its members. The consortium is jointly and severally liable to the customer. Its creation is formalized by the memorandum of association. The termination of the consortium's activities is usually carried out due to the implementation of the tasks set.

• 3. Cartels - associations of organizations with the aim of effectively resolving issues related to the sale of products. The creation of such associations, also carried out on a contractual basis and in the presence of voluntary participation, may pursue the following goals: mastering sales markets, delimiting spheres of influence, regulating product prices, etc.
• 4. Corners - a form of corporate associations for the purpose of transferring, accumulating, using capital to master the markets of any product. The combined capital is used to buy shares of individual corporations of interest to the corner in order to subsequently resell them or take control of the shares.
• 5. Conglomerates are very similar to vertical concerns. They are created from enterprises interconnected in the production process. However, associations without a common production community are not uncommon. The difference between a conglomerate and a concern is that its members enjoy broad autonomy. The reason for granting such freedom is the desire of the members of the conglomerate to invest their capital more efficiently, without burdening themselves with the need to obtain the consent of the other members of the association. However, this desire is mutual, since the conglomerate as a whole also wins if its members are economically strong.
• 6. Trust - a type of association that is distinguished by the strength of economic and organizational ties. Organizations participating in it lose their economic and partially legal independence, since in this case the merger occurs in almost all parameters of their activities. International trusts may also be created.
• 7. A syndicate is an association in which organizations lose only their commercial independence. The main goal of creating a syndicate is to solve sales issues. To do this, one, and most often - a whole network of trading companies is created in its structure. But their activities are not limited to the sale of products of enterprises - members of the syndicate. Created to solve sales problems, these organizations can conduct any economic activity.
• 8. A franchise (franchising system) is a hybrid form of cooperation between large and small businesses. Its name comes from the French word "franchise", that is, a benefit, a privilege. Essentially, a franchise is an association between organizations, individual businessmen. In accordance with the founding agreement, a large organization undertakes to supply a small company or businessman with its goods, advertising services, and technologies. The same organization (franchise) undertakes to provide services in the field of management, marketing, taking into account local conditions or the characteristics of the serviced company. It is also possible that a certain amount of capital will be invested by the franchise in firms that are, as it were, under its patronage.
• 9. Pool - a contractual form of association of organizations, the participants of which do not lose legal independence, created to consolidate funds and minimize business risks in order to distribute income received from joint activities at the end of the "pool" period. Pools have become widespread in the field of insurance, trade, exchange, patent and other services.

The goals of the above associations can be realized as a result of the formation of a certain legal form. From the point of view of the organizational and legal forms of associations that are recognized in the Russian Federation, the following should be distinguished:

• - associations (unions) of legal entities;
• - non-commercial partnerships;
• - holdings;
• - associations on the basis of a simple partnership agreement.

Such associations may acquire the status of a legal entity.

or not be legal entities.

In accordance with the Civil Code of the Russian Federation and Federal Law No. 7-FZ of January 12, 1996 “On Non-Commercial Organizations”, associations (unions) of legal entities or non-commercial partnerships can be created as legal entities - non-commercial organizations.

Associations (unions) - associations of legal entities and (or) citizens, based on voluntary or, in cases established by law, on mandatory membership and created to represent and protect common, including professional, interests, to achieve socially useful, as well as other not contradictory law and non-commercial purposes (Article 121 of the Civil Code of the Russian Federation).

In the organizational and legal form of associations (unions), in particular, associations of legal entities and (or) citizens are created with the aim of coordinating their business activities, representing and protecting common property interests, professional associations of citizens that do not aim to protect the labor rights and interests of their members, professional associations of citizens, regardless of the presence or absence of labor relations with employers (associations of lawyers, notaries, appraisers, creative professions and others), associations of self-regulatory organizations.

The subjects that have joined such an association do not lose their legal personality, and moreover, they retain their independence and freedom in choosing and changing their organizational form.

The association itself becomes a new independent legal entity with all the necessary attributes: balance sheet, bank account, seal, management bodies, separate property.

The association bears legal responsibility for its obligations, but not for the obligations of its members (clause 4, article 121 of the Civil Code of the Russian Federation). However, the members of the association bear subsidiary liability for its obligations. The conditions, amounts and procedure for such liability are determined in founding documents.

The number of founders of an association (union) cannot be less than five.

The main principle in the relationship of members of the association is voluntariness. The founding documents of an association (union) are the founding agreement signed by all members of the association (union), as well as the charter approved by them. In it, in addition to general information should contain information on the composition of the association, management bodies, the procedure for making decisions by them, including on issues requiring a decision unanimously or adopted by a qualified majority of votes of the members of the association (union), as well as on the procedure for distributing property remaining after liquidation.

Members of associations (unions) have certain rights and obligations, such as:

• 1) in the manner prescribed by law or the charter of the association (union), to participate in the management of the affairs of the association (union);
• 2) in cases and in the manner provided for by law and the charter of the association (union), to receive information about the activities of the association (union), to get acquainted with its accounting and other documentation;
• 3) in the manner prescribed by law, appeal against the decisions of the bodies of the association (union), entailing civil law consequences;
• 4) in cases stipulated by law, challenge the transactions made by the association (union) and demand compensation for the losses caused to the association (union);
• 5) free of charge, unless otherwise provided by law, to use the services provided by the association (union) on an equal footing with its other members;
• 6) at its own discretion, withdraw from the association (union) at the end of the financial year. In this case, a member of the association (union) bears subsidiary liability for its obligations in proportion to its contribution within two years from the date of withdrawal;
• 7) to exercise other rights provided for by law or the charter of the association (union), in the manner prescribed by the charter of the association (union).

The duties of the members of the association (union) include:

• 1) participate in the formation of the association's (union's) property in the manner, in the amount, in the manner and within the time limits provided for by the charter of the association (union) in accordance with this Code or other law;
• 2) not to disclose confidential information about the activities of the association (union);
• 3) participate in decision-making, if his participation in accordance with the law and (or) the charter of the association (union) is necessary for making such decisions;
• 4) not to take actions knowingly aimed at causing harm to the association (union), of which he is a member;
• 5) pay the membership fees provided for by the charter of the association (union);
• 6) by decision of the supreme body of the association (union) to make additional property contributions.

A member of an association (union) may be expelled from it by decision of the remaining members in the cases and in the manner prescribed by the charter of the association (union). With regard to the liability of an expelled member of an association (union), the rules relating to withdrawal from the association (union) shall apply.

With the consent of the members of the association (union), a new member may enter it. Joining an association (union) of a new member may be conditioned by its subsidiary liability for the obligations of the association (union) that arose prior to its entry.

The basics of management in an association (union) are regulated by Art. 121.2 of the Civil Code of the Russian Federation. Here, the supreme governing body is formed, the exclusive competence of which is established by this article, the sole executive body (chairman, president or others), and permanent collegial executive bodies (council, board, etc.) can also be formed.

A non-profit partnership is "a non-profit organization whose members retain rights to its property, created to assist all members in the conduct of public benefit activities" .

In the form of non-commercial partnerships, for example, stock exchanges can be created.

A non-profit partnership is the owner of the property transferred to it and is not liable for the obligations of its members, and the latter are not liable for the obligations of the partnership. Its supreme governing body is general meeting members.

Non-profit partnerships are formed on a membership basis, with partnership members having some proprietary rights in relation to the partnership. In particular, in cases of withdrawal, exclusion from the partnership or its liquidation, the participant has the right to demand the issuance of part of the property that was previously transferred by the members to the ownership of the non-profit partnership (unless otherwise provided by its charter).

In Russia, associations of corporations in the form of holdings have become widespread. At the same time, a new legal entity is not formed and the above-mentioned associations are recognized by the current legislation as a set of legal entities.

Currently, the only normative act regulating the activities of these associations is the Decree of the President of the Russian Federation "On measures to implement industrial policy during the privatization of state-owned enterprises", Appendix No. 1 to which contains "Temporary regulation on holding companies created when state-owned enterprises are transformed into joint-stock companies ".

The temporary provision contains the legal concept of a holding: “A holding company is an enterprise, regardless of its organizational and legal form, whose assets include controlling stakes in other enterprises. Enterprises, the controlling stakes of which are part of the assets of the holding company, are hereinafter referred to as "subsidiaries". Hereinafter, a "controlling stake" means any form of participation in the capital of an enterprise that provides an unconditional right to make or reject certain decisions at a general meeting of its participants (shareholders, shareholders) and in its management bodies. "Decisions on the presence of a controlling stake are made The State Committee of the Russian Federation for Antimonopoly Policy and Support for New Economic Structures and its territorial bodies, taking into account specific features constituent documents and capital structure of enterprises” (clause 1.1).

It should be noted that the requirements of the Temporary Regulations are mandatory only for holding companies whose share of the capital, which is in state ownership, at the time of the company's creation exceeded 25%.

Some aspects of the legal status of holding companies are determined by the norms of the Civil Code of the Russian Federation, the LLC Law and the JSC Law, which establish the legal status of subsidiaries.

Expanding the concept of the parent company and subsidiaries, the legislator provides an open list of possible grounds for establishing control of the parent company over subsidiaries:

• - the presence of a predominant participation in the authorized capital;
• - the existence of an agreement according to which one society is forced to obey another;
• - the presence of another opportunity to determine the decisions of society.

Protecting the interests of a subsidiary and its creditors, the Civil Code of the Russian Federation

• (Clause 2, Article 105) establishes two cases of liability of the parent company for the debts of the subsidiary:
  • 1) joint and several liability arises for transactions concluded by the subsidiary in pursuance of the mandatory instructions of the parent company;
  • 2) subsidiary liability arises if, through the fault of the main company, the bankruptcy of the subsidiary has occurred.

The legislation also establishes the right of participants (shareholders) of a subsidiary to demand compensation by the main company for losses caused through its fault to the subsidiary (clause 3, article 105 of the Civil Code of the Russian Federation, clause 3, article 6 of the LLC Law, clause 3, article 6 of the Law on AO).

Thus, subject to certain conditions, liability for the debts of a subsidiary company may be assigned to the parent company. This mechanism has received the name "removal of corporate veil" in the literature, by analogy with the American doctrine.

It should be noted that the JSC Law to some extent limits the above-mentioned liability of the main JSC for the obligations of the subsidiary JSC. Firstly, “the parent company (partnership) is considered to have the right to give mandatory instructions to the subsidiary company for the latter only if this right is provided for in the agreement with the subsidiary company or the charter of the subsidiary company”; secondly, “the insolvency (bankruptcy) of a subsidiary is considered to have occurred through the fault of the main company (partnership) only in the case when the main company (partnership) used the indicated right and (or) opportunity in order to commit an action by the subsidiary, knowing in advance that as a result this will result in the insolvency (bankruptcy) of the subsidiary” and, finally, thirdly, “losses are considered to be caused through the fault of the main company (partnership) only in the case when the main company (partnership) used its right and (or) opportunity for the purposes of commission of an action by a subsidiary, knowing in advance that as a result of this, the subsidiary will incur losses.

Researchers of this issue rightly note that “it became virtually impossible to use the mechanism of “removal of corporate covers” after the introduction of the Law on JSC.

Thus, it is necessary to recognize the need to improve the legal mechanism that ensures the protection of the rights of a subsidiary, its participants and creditors.

Joint entrepreneurial activity may also be carried out on the basis of a simple partnership (commercial partnership) agreement, as well as an investment partnership.

According to Art. 1041 of the Civil Code of the Russian Federation, under a simple partnership agreement, two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another common goal that does not contradict the law.

The simple partnership agreement is multilateral and consensual. The conclusion of this agreement does not lead to the creation of a legal entity.

The subject of a simple partnership agreement is the joint conduct of activities aimed at achieving a common goal for all participants.

If a simple partnership agreement is concluded for the purpose of carrying out entrepreneurial activities, then only commercial organizations can be its participants, individual entrepreneurs and non-profit organizations whose constituent documents provide for the possibility of carrying out entrepreneurial activities that do not contradict the goals of their creation.

An essential condition of a simple partnership agreement is the condition on the contributions of partners to the common cause. Such a contribution may consist not only of certain property, but also, as agreed by comrades, of professional and other knowledge, skills, abilities, business reputation and business connections. The monetary value of such contributions is made by agreement of the comrades. Unless otherwise provided by the agreement, the contributions of partners are recognized as equal.

The property that partners have made as contributions to the common property, as well as the profit received as a result of the activities of the partners, are the common shared property of the partners, unless otherwise provided by law or the agreement.

The use of common property is carried out by agreement of the comrades, and if such an agreement is not reached, then by a court decision.

Conducting common affairs of comrades is carried out as follows:

By general rule each of the partners has the right to act on behalf of the others, and his powers must be confirmed by a power of attorney or a simple partnership agreement concluded in writing.

The agreement may also provide for another way of conducting the common affairs of partners:

• - affairs are conducted by a comrade specially authorized for this;
• - affairs are conducted jointly by all comrades, when the consent of all comrades is necessary for the commission of any action.

The rights of comrades in the conduct of common affairs are equal and do not depend on the size of the contribution.

Rights and obligations of partners.

• - the right to participate in the conduct of the general affairs of the partnership;
• - the right to familiarize with all documentation on the conduct of cases (waiver of such a right or its restriction is void);
• - the right to receive profit in proportion to the value of their contributions.

Responsibilities:

• - make contributions to common property;
• - bear expenses and losses from joint activities in proportion to the value of contributions to common property, unless otherwise specified by the agreement (an agreement that completely exempts from participation in covering expenses and losses or from participation in profits is void).

The liability of partners under common obligations is joint and several, if the contract is concluded for the purpose of doing business.

In the event of a lack of personal property of a partner for liability under an obligation not related to the conduct of the common affairs of the partners, recovery may be imposed on his share in the common property of the partners. In this case, the creditor under such an obligation has the right to demand that the share of this partner be separated from the common property. If the allocation of a share in kind is not possible or other partners object to its allocation, the creditor has the right to demand that the debtor sell his share in the common property of other partners at a market price. If other partners refuse to redeem the share, the creditor has the right to demand its sale at public auction.

Grounds for termination of a simple partnership agreement:

• - achievement stipulated by the agreement goals;
• - expiration of the contract, if any;
• - declaring one of the comrades incompetent, partially incapacitated, missing or insolvent (bankrupt);
• - death of a partner, liquidation or reorganization of a legal entity participating in the contract, if the contract does not provide for the possibility of replacing a partner with an assignee;
• - a partner's refusal to participate in an open-ended contract with a notice of this to other partners at least three months in advance;
• - termination of another simple partnership agreement at the request of a partner for a good reason with compensation to other partners for the real damage caused by this;
• - allotment of a partner's share at the request of the creditor.

In the event of withdrawal for any reason of one of the partners from the contract, in which more than two partners participated, the contract may be left in force between the remaining partners by their agreement.

In the event that one of the partners withdraws from the contract without terminating the contract, he continues to be liable to third parties for the general obligations that arose during his participation in the contract, in the same manner as during his participation in the contract.

After the termination of the contract, the common property is subject to division between the partners. At the same time, a partner who has made an individually defined thing as a contribution has the right to claim it back.

Features of a simple partnership agreement concluded for the implementation of joint investment activities (investment partnerships) are established by the Federal Law "On Investment Partnerships".

Under an investment partnership agreement, two or more persons (partners) undertake to combine their contributions and carry out joint investment activities without forming a legal entity for profit.

The partners participate in the investment partnership agreement within the limits and to the extent established by the Civil Code of the Russian Federation, the Law on Investment Partnership and the investment partnership agreement, while one or more partners carry out the common affairs of the partners on behalf of the other partners (managing partners).

Parties to an investment partnership agreement may be commercial organizations, and also, in cases established by federal law, non-profit organizations insofar as the implementation of investment activities serves the achievement of the goals for which they were created and corresponds to these goals. Individuals may be parties to an investment partnership agreement if they are individual entrepreneurs registered in accordance with the established procedure and carrying out entrepreneurial activities without forming a legal entity.

foreign legal entities, as well as foreign organizations, which are not legal entities under foreign law, participate as a party to an investment partnership agreement, taking into account the established international treaties of the Russian Federation and the legislation of the Russian Federation, the specifics of the legal status of these persons.

These persons may be parties to several investment partnership agreements. Restriction of the rights of partners to participate in several investment partnership agreements, including by agreement of the parties, is not allowed.

The number of participants in an investment partnership agreement must not exceed fifty.

The parties to an investment partnership agreement and other persons are not entitled to advertise joint investment activities carried out under an investment partnership agreement, as well as to attract new persons to joint investment activities through a public offer.

The investment partnership agreement must have a name (individual designation) that includes the words "investment partnership".

• Civil law: textbook. T.1. / ed. A.P. Sergeeva, Yu.K. Tolstoy. -M.: Prospect, 2004. - S. 210.
• Delozari D.I. Problems of the modern Russian legal model JSC // Actual problems civil law. Issue. 7 // Ed. O.Yu. Pintail. - M.: Norma, 2003. - S. 86.
• Federal Law of November 28, 2011 No. No. 335-FZ "On investment partnership"//SZ RF. 2011. No. 49 (part 1). Art. 7013.

Basic concepts

Association (union) - a non-profit organization, which is a contractual association of commercial organizations, created in order to coordinate their business activities and protect common property interests.
The association of commercial organizations is a form of integration, the participants of which carry out coordinated entrepreneurial activities.
A financial and industrial group (FIG) is a form of organizational association of legal entities for the purpose of technological and economic integration.

Holding (holding company) - a combination of the main (parent) company (partnership) and subsidiaries engaged in coordinated business activities and interconnected by relations of economic dependence and control, allowing the main (parent) company (partnership) to determine the conditions for conducting business activities by subsidiaries .

Basic regulations

Civil Code of the Russian Federation - Articles 105, 106, 121-123.
Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" - Article 6.
Federal Law of February 8, 1998 N 14-FZ “On Limited Liability Companies” - Art.6.
Tax Code of the Russian Federation - Articles 20, 40.
Federal Law of February 3, 1996 N 17-FZ "On Banks and Banking Activities" - Article 4.
Federal Law of November 30, 1995 N 190-FZ "On financial and industrial groups" // SZ RF. 1995. N 49. Art. 4697 (hereinafter - the Law on FIG).
Decree of the President of the Russian Federation of November 16, 1992 N 1392 "On measures to implement industrial policy during the privatization of state-owned enterprises" (as amended, including September 5, 2001) // SAP RF. 1992. N 21. St. 1731; SZ RF. 1998. N 10. St. 1157; No. 16. Art. 1832; 2000. N 44. Art. 4349; 2001. N 1 (part II). Art.69; N 37. Art. 3672.
Decree of the Federal Commission for Securities and the Stock Market under the Government of the Russian Federation dated May 14, 1996 N 10 “On the procedure for publishing information on the acquisition by a joint-stock company of more than 20 percent of the voting shares of another joint-stock company” // Bulletin of the FCSM of Russia. 1996. N 3.

In modern Russia, as a result of natural integration processes of concentration of production and capital, certain forms of associations of entrepreneurs have developed. Associations also arose as a result of the reverse process - the disaggregation of organizations, when, as a result of reorganization or establishment, a group of business companies, including the main and subsidiaries, appears in the place of one legal entity.
Consideration of the problem of associations of commercial organizations is directly dependent on the recognition of various forms of business associations (holdings, financial and industrial groups, etc.) that do not have the status of a legal entity as business entities.
Associations * (296) of the commercial organizations are understood as the form of integration which participants carry out the coordinated entrepreneurial activity. Classification of business associations can be carried out according to a number of criteria. So, from the point of view of organizational and legal forms of associations, it is necessary to single out: associations (unions) and non-profit partnerships, holdings, financial and industrial groups, associations of entrepreneurs based on a simple partnership agreement * (297).

According to the criterion of economic content, based on the purpose of creating an association, the principles of centralization of certain production, economic, commercial functions, the distribution of powers between the participants in the association, they distinguish: concerns, conglomerates, consortiums, cartels, syndicates, pools, etc. * (298)
A concern is a way of organizing the interaction of business entities by centralizing production, scientific, technical, foreign economic functions, financial and investment activities, as well as service and commercial services. The concern is an economic unity; centralized management is a hallmark of the concern.
A conglomerate is a set of diversified organizations that do not have any common production bases, but are united by organizational or financial ties.
A consortium is a temporary contractual association of business entities that retain legal independence, created for the purpose of implementing large projects.
A cartel is a contractual form of association of economic entities, the participants of which, while maintaining the status of a legal entity, financial, industrial and commercial independence, determine a common marketing policy and pricing in order to increase their influence on commodity markets.
A syndicate is an entrepreneurial association of a cartel type, whose members sell their goods through a single trading office, which can also purchase raw materials for members of the syndicate.
A pool is a contractual form of an entrepreneurial association, the participants of which do not lose their legal independence, created to consolidate funds and minimize business risks in order to distribute income received from joint activities at the end of the “pool” period. Pools have become widespread in the field of insurance, trade, exchange, patent and other services * (299).
The goals of associations can be realized as a result of the formation of a certain legal form. So, for example, concerns, as a rule, are embodied in the form of a holding; cartels, consortiums, pools can be created in the form of a simple partnership. Syndicates that have a specialized trading and sales office in their structure can, in modern market conditions, acquire the organizational form of financial and industrial groups or holding companies.
According to the method of organization of the association (voluntary or forced), it is possible to distinguish associations of vertical and horizontal types. Vertical-type associations or unequal associations based on economic subordination and control include holding companies proper, as well as holding-type associations: unitary enterprises with business companies (partnerships) in which they have a controlling stake * (300), non-profit organizations with business associations they have created. Horizontal type associations or equal associations based on voluntary cooperation relations include contractual forms of associations: associations (unions), non-profit partnerships, simple partnerships. Financial and industrial groups, defined in the legislation as a set of legal entities (1) operating as a parent company and subsidiaries, or (2) fully or partially merging their assets on the basis of an agreement on the creation of FIGs, depending on the form of creation, can be classified in accordance with criterion of voluntariness of creation to the first or to the second group. Financial-industrial groups operating as a combination of parent and subsidiaries are vertical-type associations based on economic subordination and control. Financial-industrial groups formed in accordance with an agreement on the creation of a group by pooling resources and establishing a central company are classified as horizontal type associations.
It is possible to classify associations according to the criterion of legal personality * (301).
From the point of view of the traditional civilistic approach, which recognizes only legal entities as collective subjects of civil legal relations, only associations (unions) are considered to be legal entities; all other associations that do not have the status of a legal entity are non-legal entities * (302).
On the contrary, the followers of entrepreneurial law, when determining the subject of entrepreneurial law and legal personality in economic turnover, refused to use the fiction of a legal entity * (303). Legal entities are considered by them as one of the types of subjects of entrepreneurial law, along with which, in particular, holdings, FIGs, consortia, syndicates, and pools are recognized as legal entities.
We adhere to the point of view existing in the legal literature on the possibility of recognizing entrepreneurial associations that are not legal entities with partial legal personality. So, for example, V.V. Laptev considers that production and economic complexes as a whole, as a system, not being legal entities, have some elements of entrepreneurial legal personality * (304).
Holdings, FIGs have partial (incomplete) legal personality or its individual elements, since in certain cases they become subjects of public relations regulated by the law. Thus, in Article 4 of the Law on Competition in Commodity Markets, the legislator, ignoring the form (shell) of a legal entity, considers financial-industrial groups and other groups of persons connected by relations of dependence (economic, organizational, etc.) as single economic entities. From the point of view of antimonopoly law, it is assumed that the participants in a group of persons (formally autonomous legal entities and (or) individuals) are integral parts of a common structure, are managed from a single center and engage in entrepreneurial activities to achieve the interests of a group of persons as a whole.
Persons connected by relations of economic dependence are “not indifferent” not only to antimonopoly, but also to tax legislation. Article 20 of the Tax Code of the Russian Federation contains the concept of "interdependent persons", which, in particular, are organizations if one of them participates in another and the total share of such participation is more than 20%. The allocation of the category of interdependent persons turned out to be necessary for the possibility of exercising control by the tax authorities regarding the pricing of transactions performed between related persons. The use of "transfer pricing" between participants in business associations makes it possible to underestimate the taxable base, and thus it poses a danger to the state. Interestingly, the economically developed capitalist states were “forced” to recognize a “group of persons” as a subject of legal relations, including concern for their well-being * (305).
These groups of persons have different names in different countries: related enterprises, including concerns, in Germany, a group of partnerships in France, holding companies in the UK and the USA, etc., but the essence of such entities is the same - the presence of an association of participants that does not have the status of a legal entity based on economic subordination and control of one participant over others.
The state of the Russian market economy at the moment is such that it would be dangerous, first of all, for the state itself, not to recognize associations of commercial organizations as subjects of separate business relations, although they do not have the status of a legal entity, but have a coordinated economic policy and are consolidated on the market. as well as other participants in civil circulation: creditors, shareholders of subsidiaries, etc. In favor of the traditional concept, according to which only legal entities have legal personality among collective subjects of law and that legal personality can either be or be completely absent, it is impossible to abandon the objective processes of development of market relations in Russia and from the need for legal regulation of new forms of integrated economic entities, which are business associations that do not have the status of a legal entity.
Associations or unions (hereinafter referred to as associations) are contractual associations of commercial organizations created for the purpose of coordinating business activities, representing and protecting their common property interests (Article 121 of the Civil Code of the Russian Federation). Associations are legal entities with all the ensuing legal consequences, including: independent property liability for their obligations with property owned by them, the ability to act in civil circulation on their own behalf. Association members retain their independence and the rights of a legal entity. The Association is not liable for the obligations of its members, the members of the Association bear subsidiary liability for its obligations in the amount and in the manner prescribed by the founding documents. Subsidiary liability of association members is an important feature of its legal status. As a rule, such liability arises in proportion to the size of the contribution of a member of the association. Associations can engage in entrepreneurial activities only by creating business companies and participating in them.
A non-profit partnership is a membership-based non-profit organization established by citizens and/or legal entities to assist its members in achieving goals aimed at achieving public benefits (Article 8 of the Law on Non-Profit Organizations). Such goals, along with others, may include protecting the interests of participants, resolving disputes and conflicts, providing legal assistance, etc. The qualification of non-profit partnerships that unite commercial organizations as associations of entrepreneurs is confirmed by the Law on the Securities Market, which obliges form of non-commercial partnership (Part 2, Article 11).
Holdings * (306) — the form of association of the commercial organizations of vertical type, most widespread in market relations, based on relations of economic subordination and control * (307). In Russia, holdings first arose during the privatization of large state-owned enterprises in accordance with the Provisional Regulation on holding companies created during the transformation of state-owned enterprises into joint-stock companies * (308). The above Regulation, which applies only to those holding companies whose share of the authorized capital, which is in state ownership, exceeds 25%, recognizes as a holding company an enterprise, regardless of its organizational and legal form, whose assets include controlling stakes in other enterprises. It is clear that this definition with the development of market relations and legislation is hopelessly outdated.
Holding or holding company - a set of legal entities, consisting of the main (parent) company (partnership) * (309) and subsidiaries engaged in coordinated production, trade, financial or other business activities and interconnected by relations of economic dependence and control, allowing the main (parent) company (partnership) to determine the decisions of subsidiaries.
Expanding the concept of the main and subsidiaries (Article 105 of the Civil Code of the Russian Federation, Article 6 of the Law on Joint-Stock Companies, Article 6 of the Law on LLC), the legislator provides an open list of possible grounds for establishing control of the parent company over subsidiaries:
The presence of a predominant participation in the authorized capital, which should not necessarily exceed 50% of the voting shares (participatory interests) of the company. With a large number of shareholders or participants and the "dispersion" of the controlling stake in individual companies, a significantly smaller number of votes (shares) is required to achieve overwhelming influence.
The existence of an agreement according to which one society is forced to obey another. This may be an agreement on trust management, on joint activities, a loan, a mortgage, a pledge of securities, or another business agreement.
Among the agreements that create relations of subordination, some authors include an agreement with a management company, to which the powers of the executive body of the company * (310) are transferred. In our opinion, when the function of the executive body of an organization is transferred to another legal entity, holding relations in their “substantial” meaning do not arise, since relations of economic dependence are not created between the managing organization and the economic company, they do not act with agreed goals and, although the effectiveness of the management company affects the economic results of the controlled society, but not in connection with control over it. On the contrary, in accordance with the law, the managing organization, as the executive body of a business entity, is accountable to the general meeting and the board of directors; when exercising rights and performing duties, must act in the interests of society in good faith and reasonably; it is liable to the company for losses caused to the company by guilty actions (inaction), unless other grounds and amount of liability are established by federal laws (Article 53 of the Civil Code of the Russian Federation). The company and, accordingly, the shareholder(s) holding in aggregate at least 1% of the placed ordinary shares of the company (Article 71 of the JSC Law) may apply to the managing organization with a claim for compensation for losses caused to the company. By decision of the general meeting of shareholders of the company, the powers of the managing organization may be prematurely terminated at any time if its management activities as an executive body turn out to be ineffective (clause 4, article 69 of the JSC Law).
The presence of another opportunity to determine the decisions of society. The parent company may exert a suppressive influence on decision-making by the subsidiary by participating in general meetings of shareholders (participants) and boards of directors of the subsidiary, using the right to appoint executive bodies and in other ways. The controlling effect of the main company may also consist in the distribution of production and economic functions between the structures of a mixed holding * (311), where the main company, along with the ownership of controlling stakes in subsidiaries, also carries out independent production and / or commercial activities. The main company, as a rule, carries out strategic planning, organizes financial flows, oversees investment, innovation activities, provides legal, personnel, information support for subsidiaries, establishes accounting methodology in subsidiaries and carries out consolidated accounting of the holding, often organizes marketing and sales of products subsidiaries.
The legislator does not exhaust all possible varieties of economic dependence in the relationship between the parent company and the subsidiary company, and, as follows from the above methods, the definition of a company as a subsidiary puts a qualitative criterion at the head (in contrast to the definition of the categories "predominant - dependent company", based on a quantitative criterion) *(312).
Holdings are associations of commercial organizations, although they are connected by relations of economic dependence, but do not lose their legal independence. The holdings themselves are not legal entities, are not subject to state registration, such an organizational and legal form of commercial organizations is not provided for by the Civil Code of the Russian Federation. Holding companies are a typical case of business associations with partial legal personality. In some business relations, the holding company acts as a subject of law, for example, from the point of view of antimonopoly legislation, it is a single economic entity * (313).
Recognition of a set of legal entities as a holding entails a number of legal consequences, including in terms of establishing special requirements for protecting the interests of creditors, shareholders (participants) of subsidiaries. Countries with a developed legal order have found a solution to this problem in recognizing, under certain conditions, the possibility of imposing property liability for transactions of subsidiaries not only on them, but also on the main companies that really determine their will. At the same time, the law, as it were, neglects the shell of a legal entity, designed to prevent creditors from accessing the property of its participants (shareholders). Such situation has received the name "removal of corporate covers" * (314).
Protecting the interests of a subsidiary and its creditors, the Civil Code of the Russian Federation (clause 2 of Article 105) establishes two cases of liability of the parent company (partnership) for the debts of the subsidiary:
1. Joint and several liability arises for transactions entered into by a subsidiary in pursuance of the mandatory instructions of the parent company, if this parent company has the right to give instructions to the subsidiary.
2. Subsidiary liability arises if, through the fault of the main company, the bankruptcy (insolvency) of the subsidiary has occurred.
It should be noted that the Law on JSC established a restrictive condition for bringing the main joint-stock company to liability for the debts of the subsidiary - holding the main company jointly and severally liable for the transactions of the subsidiary is possible only if there are special provisions in the charter or agreement on the right of the main company to give instructions to the subsidiary, which is essential reduces the real opportunities to protect the interests of the subsidiary and its shareholders, since the main companies have real opportunities to disguise their right to give instructions to the subsidiary.
When determining the possibility of holding the parent company liable in the event of bankruptcy of a subsidiary from the point of view of the subjective side of the actions of the parent company, as a result of which the insolvency of the subsidiary has occurred, the Civil Code of the Russian Federation and the Law on LLC operate with the concept of “through the fault of the parent company”, which implies the possibility of both intent and and negligence, and the JSC Law requires the presence of deliberate intent in the actions of the main company. There is a conflict between the norms of the Civil Code and the Law on Joint Stock Companies, which, by virtue of paragraph 2 of Article 3 of the Civil Code of the Russian Federation, should be resolved in favor of the application of the norms of the Civil Code.
The legislation establishes the right of participants (shareholders) of a subsidiary to demand compensation by the main company for losses caused through its fault to the subsidiary (clause 3 of article 105 of the Civil Code of the Russian Federation, clause 3 of article 6 of the Law on LLC, clause 3 of article 6 of the Law on JSC ). The joint-stock law in this norm, in contrast to the relevant norms of the Civil Code of the Russian Federation and the Law on LLC, establishes that losses are considered caused through the fault of the main company only if there is guilt in its actions in the form of intent (clause 3, article 6 of the JSC Law uses legal construction "knowingly"). Since the Civil Code of the Russian Federation establishes that the participants (shareholders) of a subsidiary have the right to demand compensation by the main company for losses caused through its fault to the subsidiary, unless otherwise provided by laws on business companies, there are no contradictions between the Civil Code and the Law on JSC.
It should be recognized that there is a need to improve the legal mechanism that ensures the protection of the interests of a subsidiary. Thus, it seems appropriate in the JSC Law to establish a presumption of liability of the parent company for the debts of the subsidiary arising as a result of the execution of the instructions of the parent company, regardless of whether the charter and/or agreement stipulates the right of the parent company to give such instructions. The JSC Law should eliminate the need for direct intent (the "knowingly" construction) when bringing the parent company (partnership) to subsidiary liability for the debts of the subsidiary in the event of its insolvency (bankruptcy), as well as when compensating for losses by the parent company (partnership) upon request shareholders of the subsidiary. The actions of the main company may be seen as a different form of guilt in accordance with Article 401 of the Civil Code of the Russian Federation. You should also consider the possibility of engaging the parent company for the debts of the subsidiary if there is a fact of indirect control - through third parties.
Financial and industrial groups are a form of organizational association of legal entities for the purpose of technological and economic integration for the implementation of investment projects aimed at increasing competitiveness, expanding the sales market for goods and services, increasing production efficiency, creating new jobs (Article 2 of the FIG Law). FIGs are not an independent organizational and legal form of legal entities provided for by the Civil Code of the Russian Federation. They have separate elements of legal personality, for example, in legal relations regulated by antimonopoly and tax laws. Thus, the Law on Competition in the Commodity Market recognizes FIGs as a group of persons or a single economic entity (Article 4). For FIGs, the possibility of consolidated (consolidated) accounting, reporting and maintaining a single group balance sheet has been established (Article 13 of the Law on FIGs). Members of FIGs retain their legal independence.
The Law on FIGs in Article 2 names two possible types of FIGs: (1) the totality of legal entities included in a group, acting as a parent company and subsidiaries; (2) a set of legal entities that have combined, in whole or in part, their tangible and intangible assets on the basis of an agreement on the creation of a FIG.
The first type of FIG is essentially a holding company, which becomes the basis for creating a group. The participants of the first type of financial-industrial group are the main and subsidiaries, respectively; the second type - legal entities that have signed an agreement on the creation of FIGs, and the central company established by them. According to statistics, almost all official Russian financial-industrial groups were created by signing an agreement on the creation of a financial-industrial group and the establishment of a central company * (315). Thus, FIGs are now widespread in the form of so-called soft non-holding corporations based on friendly integration * (316).
It should be noted that the vast majority of norms of the Law on FIGs are devoted to this type of FIG. A financial and industrial group of this type is created by concluding an agreement on the establishment of a FIG (simple partnership) by the group members, in accordance with which a central company is established, i.e. the central company is essentially a subsidiary or dependent company in relation to other participants in the financial and industrial group. According to the Law, the central company can be created in the form of an associative association of participants, and in this case there are even more legal paradoxes than in the case when the central company is a subsidiary (dependent) company. The central company acts in accordance with its charter, as well as the terms of the simple partnership agreement.
The law establishes the mandatory participation in FIGs of organizations operating in the production of goods and services, as well as banks or other credit organizations: investment institutions, non-state pension and other funds, insurance organizations, whose participation is due to their role in ensuring the investment process in FIGs. According to experts, the share of investments of financial and credit institutions in the consolidated assets of FIGs is on average 10% * (317). There are a number of statutory prohibitions and restrictions on participation in FIGs. Religious and public organizations cannot be their participants. Subsidiaries can be part of FIGs only together with their parent company. Participation of organizations in more than one FIG is prohibited.
According to the Law on FIGs, financial and industrial groups are transnational if among their participants there are legal entities that are under the jurisdiction of the CIS member states or have subdivisions on the territory of these states, or carry out capital construction there. A transnational company established on the basis of an intergovernmental agreement acquires the status of an interstate FIG.
The supreme governing body of the FIG is the Board of Governors of the FIG, which includes representatives of all its participants. The central company is the body authorized to manage the affairs of FIGs, representing FIGs in civil circulation. The organization acquires the status of a central company from the moment of state registration of the FIG and loses this status from the moment the group is liquidated. The central company acts on behalf of the participants of the FIG, prepares an annual report on its activities, maintains a consolidated (consolidated) accounting, reporting, draws up the balance sheet of the FIG, and performs certain banking operations in the interests of the participants.
Exploring the features of FIG as an association in the field of entrepreneurship, it is important to note two significant points:
1) the powers of the governing bodies of FIGs do not apply to all commercial activities of its members. The controlling influence of the FIG bodies concerns only the general activities of the participants in the group. This general activity is limited to the goals of creating FIGs, part of the assets combined to achieve these goals.
2) the participants of the FIG are jointly and severally liable for the obligations of the central company arising from participation in the activity of the FIG. Features of bringing to joint liability are established by the agreement on the establishment of FIGs.

Brief conclusions

1. Entrepreneurial associations are holding companies, financial and industrial groups, associations of entrepreneurs in the form of a simple partnership. Associations (unions), non-profit partnerships do not belong to proper entrepreneurial associations, since they are non-profit voluntary associative organizations created not for direct entrepreneurial activity, but only to promote and coordinate the entrepreneurial activities of participants.
2. There are various criteria for classifying associations of commercial organizations:
according to the legal forms of their organization (holdings, FIGs, etc.);
by economic content (concerns, conglomerates, consortiums, cartels, syndicates, pools, etc.);
according to the method of organizing the association (voluntary - associations of a horizontal type, forced - associations of a vertical type);
by the presence of legal personality (legal, partially legal, non-legal).
3. Holdings - the most common form of association of commercial organizations of a vertical type in market relations, based on relations of economic subordination and control. Holdings are not legal entities, they have partial legal personality.
4. The structure of the holding company consists of two groups of participants:
main (parent) economic company (joint-stock, with limited or additional liability) or partnership (full, limited);
subsidiary or dependent economic company (joint stock, with limited or additional liability).
5. Legislation recognizes various possibilities for establishing economic control of the parent company (partnership) over the subsidiary:
predominant participation in the authorized capital;
the existence of a contract;
another opportunity to determine decisions (the range of possible options for determining decisions is wide: the appointment of management bodies of a subsidiary, the distribution of production and economic functions among the holding's participants, etc.).
6. Financial and industrial groups - business associations with partial legal personality. FIGs are not legal entities. Members of FIGs retain their legal independence.
7. The current legislation provides for two possible types of FIGs: (1) a set of legal entities included in a group, acting as a parent company and subsidiaries; (2) a set of legal entities that have combined, in whole or in part, their tangible and intangible assets on the basis of an agreement on the creation of a FIG.

1. What is a business association?
2. What types of business associations do you know?
3. What is a holding company? What groups of participants form its structure?
4. List the possible ways to establish control of the main company over subsidiaries.
5. In what cases can the parent company be held liable for the debts of a subsidiary? Describe the features of the legal regulation of the liability of the main company for the debts of the subsidiary.
6. What is a business association in the form of a financial and industrial group?
7. What types of FIGs are provided for by the current legislation?
8. How is FIG managed?

Kulagin M.I. Selected works. From the Classics of Russian Civil Law series. M., 1997.
Motylev V.E. Financial capital and its organizational forms. M., 1959.
Petukhov V.N. Corporations in the Russian Industry: Legislation and Practice. M., 1999.
Popova E., Popov E. Corporate Veil // Economy and Law. 2002. No. 12.
Rudashevsky V.D. Legal status of financial and industrial groups: opportunities and limitations // State and Law. 1998. No. 2.
Ruzakova E.V. Entrepreneurial multi-subject formations: legal model and reality // Legal status of business entities. Sat. scientific Proceedings / Ed. V.S. White. Yekaterinburg, 2002.
Feldman A.B. Corporate capital management. M., 1999.
Shitkina I.S. Business associations. M., 2001.
Shitkina I.S. Holdings. Legal and managerial aspects // Library of Rossiyskaya Gazeta. 2002. Issue. eleven.

Legal forms of associations in the field of entrepreneurship (holdings, associations (unions), simple partnerships and others)

Business entities in order to coordinate their activities, to represent and protect common property and other interests, as well as for other purposes, may create various associations.

So, from the point of view of the organizational and legal forms of associations that are recognized in the Russian Federation, it is necessary to single out:

• - associations (unions) of legal entities;
• - non-commercial partnerships;
• - holdings;
• - associations on the basis of a simple partnership agreement.

Such associations may acquire the status of a legal entity or not be legal entities.

In accordance with the Civil Code of the Russian Federation and Federal Law No. 7-FZ of January 12, 1996 “On Non-Commercial Organizations”, associations (unions) of legal entities or non-commercial partnerships can be created as legal entities - non-commercial organizations.

Associations (unions) - associations of legal entities and (or) citizens, based on voluntary or, in cases established by law, on mandatory membership and created to represent and protect common ones. Including professional, interests, to achieve socially useful, as well as other goals that do not contradict the law and have a non-commercial nature (Article 121 of the Civil Code of the Russian Federation).

In the organizational and legal form of associations (unions), in particular, associations of legal entities and (or) citizens are created with the aim of coordinating their business activities. Representation and protection of common property interests, professional associations of citizens that do not aim to protect the labor rights and interests of their members, professional associations of citizens, regardless of the presence or absence of labor relations with employers (associations of lawyers, notaries, appraisers, people of creative professions and others) , associations of self-regulatory organizations.

The subjects that have joined such an association do not lose their legal personality, and moreover, they retain their independence and freedom in choosing and changing their organizational form.

The association itself becomes a new independent legal entity with all the necessary attributes: balance sheet, bank account, seal, management bodies, separate property.

A non-profit partnership is "a non-profit organization whose members retain rights to its property, created to assist all members in the conduct of public benefit activities."

A non-profit partnership is the owner of the property transferred to it and is not liable for the obligations of its members, and the latter are not liable for the obligations of the partnership. Its supreme governing body is the general meeting of members.

Non-profit partnerships are formed on a membership basis, with partnership members having some proprietary rights in relation to the partnership. In particular, in cases of withdrawal, exclusion from the partnership or its liquidation, the participant has the right to demand the issuance of part of the property that was previously transferred by the members to the ownership of the non-profit partnership (unless otherwise provided by its charter).

In Russia, associations of corporations in the form of holdings have become widespread. At the same time, a new legal entity is not formed, and the above-mentioned associations are recognized by the current legislation as a set of legal entities.

Joint entrepreneurial activity may also be carried out on the basis of a simple partnership (commercial partnership) agreement, as well as an investment partnership.

According to Art. 1041 of the Civil Code of the Russian Federation, under a simple partnership agreement, two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another common goal that does not contradict the law.

The simple partnership agreement is multilateral and consensual. The conclusion of this agreement does not lead to the creation of a legal entity.

The subject of a simple partnership agreement is the joint conduct of activities aimed at achieving a common goal for all participants.

If a simple partnership agreement is concluded for the purpose of carrying out entrepreneurial activities, then only commercial organizations, individual entrepreneurs and non-profit organizations can be its participants, the constituent documents of which provide for the possibility of carrying out entrepreneurial activities that do not contradict the goals of their creation.

An essential condition of a simple partnership agreement is the condition on the contributions of partners to the common cause. Such a contribution may consist not only of certain property, but also, as agreed by the comrades, of professional and other knowledge, skills, abilities, business reputation and business ties. The monetary value of such contributions is made by agreement of the comrades. Unless otherwise provided by the agreement, the contributions of partners are recognized as equal.

AT modern conditions the role of not only large enterprises, but also large industrial and economic complexes, including enterprises related by production and technological features, is growing. Such industrial and economic complexes are economic systems, including enterprises and organizations headed by a single center. They were created in the Soviet Union in the form of industrial associations, and during the transition to a market economy they began to be created in the form of holdings and financial-industrial groups that combine organizational and production and economic activities. In other words, we are talking about a combination of private and public law principles in the activities of production and economic complexes, creating favorable conditions for solving not only economic, but also scientific and technical problems, i.e. for the development of an innovative economy.

However, such a combination does not fit into the framework of civil legislation as private law legislation, and therefore industrial and economic complexes are not mentioned in the Civil Code, the design of this Code does not allow it to cover the regulation of industrial and economic complexes as economic systems based on a combination of private and public -legal principles.

It should be noted that in the legal doctrine, groupings of enterprises are often denoted by the term "associations". This term does not raise fundamental objections. However, in our opinion, it is less successful than the terms "industrial and economic complex" and "economic system", since it does not characterize a group of enterprises as a subject operating in the production and economic sphere. In addition, according to part 1 of Art. 121 of the Civil Code of the Russian Federation, associations (associations and unions) of commercial organizations can only be created as non-profit organizations in order to coordinate business activities, but not for its implementation. Meanwhile, in industrial and economic complexes ( economic systems) the functions of organization (coordination) and implementation of production and economic activities are combined.

Under such conditions, attempts at legal regulation of the organization and activities of certain types of production and economic complexes, really existing large economic systems, are of great importance. In Art. 71 of the Constitution of the Russian Federation refers to federal energy systems. One of them is the gas supply system, the activity of which is regulated by the Federal Law of March 31, 1999 No. 69-FZ “On Gas Supply in the Russian Federation”. According to Art. 5 of this Law, the federal gas supply system includes the unified gas supply system operating on the territory of the country, regional gas supply systems, gas distribution systems and independent organizations. In other words, it is quite reasonably considered as a set of economic entities, i.e. as an industrial and economic complex. But in Art. 6 Law one system gas supply is interpreted as a property and production complex, including only production and other facilities, and the economic entities to which these facilities belong are outside this complex. This approach contradicts the above definition of the gas supply system, distorts the concept of this system as an industrial and economic complex, which includes business entities along with their property.

In order to improve funding industrial enterprises at the end of the last century, industrial and economic complexes began to be created in our country, including not only manufacturing enterprises, but also credit organizations, which were called financial and industrial groups. Their legal status was determined by the Federal Law of November 30, 1995 No. 190-FZ “On Financial and Industrial Groups”. This Law determined in detail the legal organization of financial and industrial groups, their structure, possible models of their management, forms of their state support, resolved other issues related to the creation and operation of these industrial and economic complexes.

However, in 2007 the Law on Financial Industrial Groups was abruptly repealed, which limited the possibilities for creating efficient financial industrial complexes. The unfavorable consequences of the abolition of this Law became apparent already in 2008, when banks, in the conditions of the economic crisis, began to use budget resources issued to support enterprises in the real sector. For the purpose of self-enrichment through financial speculation and the payment of huge bonuses to executives, while within the financial-industrial groups they would take more care of financing the enterprises that belong to such a group with them. Of course, it would be wrong to assume that the creation of industrial and economic complexes with the participation of credit organizations became impossible after the abolition of the Law on Financial and Industrial Groups, they can now be created in the form of bank holdings (Article 4 federal law"On banks and banking activity"). However, before its abolition, they could be created not only according to the holding model, but also with the central company as a backbone organization, and in the case of using the holding model, there were no current restrictions on the possibility of acting as a holding company credit institution, the measures of state support for financial and industrial groups provided for by law were in effect.

As for holdings, which are now the most common legal form of industrial and economic complexes, a general law on these economic entities has not yet been issued. The legislation contains only scattered provisions on certain types holdings. True, there is a Temporary Regulation on holding companies created during the transformation of state-owned enterprises into joint-stock companies, approved by Decree of the President of the Russian Federation of November 16, 1992 No. 1392 "On measures to implement industrial policy during the privatization of state-owned enterprises." But this normative act applies only to holdings created in the process of privatization, headed by parent enterprises (holding companies), more than 25% of whose assets are owned by the state. In addition, in the specified Temporary Regulations, the status of holdings is not determined directly, but through the rights and obligations of the holding companies that head them, which makes it impossible to establish the structure and relationships of the links of these production and economic complexes as integral economic entities, to resolve other issues of their legal organization. In order to clearly regulate the legal status of holdings and other industrial and economic complexes, it would be necessary to issue a general regulatory act on all such economic systems - a law on industrial and economic complexes or another similar regulatory act that would apply to all economic entities of this type. What would be, in particular, important for the implementation of the economic concentration required in the real sector in the transition to an innovative economy.

Both at enterprises and in production and economic complexes, relations arise not only in the implementation, but also in the organization of economic activity. At corporate enterprises, the situation is complicated by the fact that within such economic entities, along with intra-production relations between shops, industries and farms, between these divisions and the enterprise as a whole, intra-corporate relations develop between the enterprise and its participants, as well as between the participants of the enterprise.

Participants in relations that develop within an economic entity may be the enterprise as a whole and its divisions, legal status which are determined by the enterprises themselves, except for separate subdivisions(branches, representative offices), the legal status of which is established by law.

In economic systems (industrial and economic complexes), economic activity is organized by the center of the system, which can be created as an enterprise, but inside the system it acts as its management body. For example, a holding company is headed by a holding company, usually created as corporate enterprise (joint-stock company), but inside the holding it acts as a management body of the production and economic complex.

clear legal organization of all these relations, rational legal regulation of the implementation and organization of production and economic activities within enterprises and industrial and economic complexes largely determines the success of business entities.