Business entities. An enterprise as a subject of entrepreneurial activity and a property complex Commercial organizations as subjects of business law in brief

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

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

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

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

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

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

Yes, the GC has special rules on entrepreneurial activities of citizens (Article 23), on insolvency (bankruptcy) of an individual entrepreneur (Article 25), on commercial organizations (Article 50) . All this testifies to the need to clarify who is the entrepreneur according to Russian legislation and what are those special rules that apply to him and his activities.

Recognizing a person as an entrepreneur is important legal fact and has certain legal implications.

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

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

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

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

Keeping records of business activities, which serves the purpose of monitoring its conduct, and in the event of disputes with other persons, it facilitates the proof of the facts of the conduct business transactions(Article 88 of the Law on Joint Stock Companies), provision by an entrepreneur in the prescribed manner of information about their activities, provision of financial statements for taxing their activities, etc.

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

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

The modern civil legislation of Russia (Article 132 of the Civil Code of the Russian Federation) defines the concept of "enterprise" as Property Complex used for doing business. At the same time, the named article considers the enterprise as an object of civil rights. Such a legislative position significantly changed the legal status of the enterprise, which was generally approved (even admired) by representatives of civil science. Sometimes the question of an enterprise as a property complex is not even commented on the principle: why discuss anything, if everything is clear anyway. An enterprise is an object of civil rights, and that says a lot.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to the norms of paragraph 1 of Art. 50 of the Civil Code of the Russian Federation, a commercial organization is a legal entity pursuing profit as the main goal of its activities.

Commercial organizations are usually divided into types depending on various criteria.

FROM practical point of view, it is important to divide commercial organizations into types depending on from the legal form, a list of which is contained in paragraph 2 of Art. 50 of the Civil Code of the Russian Federation. According to this article, legal entities that are commercial organizations can be created in the form of:

Business partnerships (general partnerships and limited partnerships (limited partnerships));

Business companies (company with limited liability and joint stock company (public joint stock company and non-public joint stock company)),

Peasant (farming) households,

business partnerships,

production cooperatives,

State and municipal unitary enterprises.

Here it is necessary to pay special attention to the fact that the list of the above types of commercial organizations is exhaustive. This means that it is unacceptable to create organizations in the Russian Federation with an organizational and legal form not provided for by the Civil Code of the Russian Federation.

Depending on the type of property right on property that is assigned to a commercial organization by the founders or acquired by them in the course of entrepreneurial activity, it is customary to classify commercial organizations into:

Commercial organizations that have the right of ownership of property assigned to them by the founders or acquired by them in the course of entrepreneurial activity. Such persons include commercial organizations created in the form of economic partnerships and companies, peasant (farm) enterprises, economic partnerships and production cooperatives.

Commercial organizations that have the right of economic management or the right of operational management of property assigned to them by the founders or acquired by them in the course of entrepreneurial activity. Such persons include commercial organizations created in the form of unitary enterprises.

A commercial organization participates in entrepreneurial relations on its own behalf, and not on behalf of the founders. Her name is brand name (Clause 4, Article 54 of the Civil Code of the Russian Federation). It consists of two parts, the first of which should contain an indication of its organizational and legal form, and the second - to its own name. So, for example, in the brand name PAO"Joint stock commercial Bank“ALEF-BANK”, the reference to PJSC is an indication of the legal form, and the reference to “Joint-Stock Commercial Bank “ALEF-BANK” is the actual name of the commercial organization. In the cases provided for by law, the names of commercial organizations must contain an indication of the nature of the activity of the legal entity (clause 1, article 54 of the Civil Code of the Russian Federation). So, according to paragraph 2 of Art. 2 of the Federal Law of July 19, 2007 No. 196-FZ “On pawnshops”, the brand name of a pawnshop must contain the word “pawnshop” and an indication of its organizational and legal form. In the corporate name of OOO Lombard Stolichny, the reference to “pawnshop” is an indication of the nature of the activity of the legal entity.

The trade name of a commercial organization is indicated in its constituent document and in the unified state register of legal entities (clause 5, article 54 of the Civil Code of the Russian Federation).

A commercial organization has the exclusive right to use its company name as a means of individualization in any way that does not contradict the law (exclusive right to a company name), including by indicating it on signboards, letterheads, invoices and other documentation, in announcements and advertisements, on goods or their packages. It is not allowed for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it if these legal entities carry out similar activities and the company name of the second legal entity was included in the unified state register of legal entities earlier than the company name of the first legal entity. persons (clauses 1 and 3 of article 1474 of the Civil Code of the Russian Federation).

Unlike individual as a subject of law, a commercial organization as a subject of law is an abstract subject of law. However, this does not mean that the activity of a legal entity is the activity of an abstract subject. The activity of a legal entity is the activity of those people who have united "under the roof" of a legal entity in order to carry out collective activities.

Mentioned people can be divided into two groups:

The first group is formed by persons who ensure the participation of a commercial organization as a subject of law in legal relations and who do not directly participate in the main activities of a commercial organization. This group of people is called "body of a legal entity" . So, for example, being a body of a legal entity, the General Director of an LLC, which is engaged in housing construction, does not take direct labor participation in the construction of construction projects. It only ensures the participation of this company in legal relations by concluding various transactions, as well as performing other legally significant actions.

The second group is formed by persons who implement the main activities of a commercial organization, as well as ensure the activities of the "body of a legal entity". So, for example, the welder of the mentioned LLC takes a direct labor part in the implementation of construction activities. By his labor efforts, he does not ensure the participation of society in legal relations.

The concept of "body of a legal entity" is collective and is a set of management bodies of a legal entity that are in a certain hierarchical relationship with each other. For example, the bodies of a joint-stock company, as a rule, are a combination of such bodies as the general meeting of shareholders, the board of directors (supervisory board) and the executive body. All of these bodies are in a hierarchical relationship with each other established by law.

The body of a legal entity, depending on the ability to form and express the will of a legal entity, can be classified into two types:

- body of a legal entity, capable only of forming the will of a legal entity. « non-executive body of a legal entity". For example, such a body may include a general meeting of shareholders, etc.;

- a body of a legal entity capable of both forming and expressing the will of a legal entity. Such body of a legal entity is called "executive bodies of a legal entity", since it is the named body that is called upon to execute the will of the legal entity in relations with other individuals and legal entities. The executive body, for example, includes CEO, director, etc..

The difference between these bodies is manifested in the fact that bodies that only form the will of a legal entity do not have the right to act on behalf of a legal entity in relations with other subjects of law. The will of the legal entity formed by the named bodies is expressed outside executive body a legal entity that acts on behalf of the respective legal entity without a power of attorney. So, for example, according to the norm of paragraph 1 of Art. 9 of the Federal Law "On Insolvency (Bankruptcy)" dated October 26, 2002 No. 127-FZ, the head of the debtor is obliged to apply with the debtor to court of Arbitration if the body of the debtor, authorized in accordance with its constituent documents to make a decision on the liquidation of the debtor, decides to apply to the arbitration court with the application of the debtor. It follows from the content of the above norm that the body of a legal entity, authorized in accordance with its constituent documents to make a decision on the liquidation of the debtor, may decide to apply to the arbitration court with the debtor's application, i.e. form a will. However, the specified body is not entitled to take actions to file the specified application with the court, i.e. express the will of the legal entity formed by him. According to the above article, the expression of the specified will of the legal entity is carried out by the head of the debtor, i.e. executive body of a legal entity.

In a commercial organization, a body that only forms the will of a legal entity, as a rule, is formed either by persons who are owners of capital and who have decided to carry out entrepreneurial activities in a collective form (for example, a general meeting of shareholders) or representatives of these persons (for example, the board of directors of a joint-stock company ). The executive body of a commercial organization, as a rule, is represented by professional managers. Meanwhile, it should be noted that the law does not prohibit persons who are members of bodies that only form the will of a legal entity from being heads of the executive body of a legal entity.

A commercial organization may also participate in legal relations through its separate structural units, which are named representative offices and branches(Article 55 of the Civil Code of the Russian Federation).

Representative offices and branches are such separate divisions of a commercial organization that are located outside its location. However, despite the fact that the location of the representative office (branch) and the commercial organization do not match, representative offices and branches are not legal entities, i.e. independent subjects of law (clause 3, article 55 of the Civil Code of the Russian Federation). The named separate subdivisions of a commercial organization in legal relations act on behalf of the corresponding commercial organization.

A representative office is understood as a separate subdivision of a commercial organization that represents the interests of a legal entity and protects them. A branch is a separate subdivision of a commercial organization that performs all or part of its functions, including the functions of a representative office.

Heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney. Information about representative offices and branches should be contained in the constituent documents of the commercial organization that created them.

Every legal entity must have its own location, which is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney. The location of a legal entity is indicated in its constituent document and in the unified state register of legal entities (clauses 2, 3 and 5 of article 54 of the Civil Code of the Russian Federation).

commercial organization- A legal entity pursuing profit making as the main goal of its activity, in contrast to a non-profit organization that does not aim to make a profit and does not distribute the profit received among the participants

The main features of a commercial organization:

1. The purpose of the activity is to make a profit;

2. Clearly defined organizational and legal form in the law;

3. Distribution of profit between the participants of the legal entity.

Commercial organizations:

1) Corporate:

- business partnerships (general partnerships / limited partnerships);

· General partnership- a commercial organization, the participants of which, in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with property personally owned by them.

· Limited partnership (limited partnership)- a commercial organization in which, along with the participants carrying out entrepreneurial activities on behalf of the partnership and liable for the obligations of the partnership with their property (general partners), there is one or more participants-contributors (limited partners) who bear the risk of losses associated with the activities of the partnership, in within the limits of the amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership.

- business companies:

a) public (PJSC);

PJSC is an enterprise whose shares must be publicly placed on the securities market

b) non-public (JSC, LLC);

· Joint-stock company- a joint-stock company, the shares of which are distributed only among the founders or other predetermined circle of persons. Shareholders of a closed joint-stock company and the company itself, if it is provided for by the charter, enjoy the pre-emptive right to acquire shares sold by shareholders.

· Limited Liability Company- a commercial organization, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; participants are not liable for the obligations of the LLC and bear the risk of losses associated with the activities of the company, within the value of the contributions.

- business partnerships;

· Economic partnership - the creation by two or more persons of a commercial organization, the management of which is attended by the participants, as well as other persons stipulated by the management agreement.

- KFH;

· KFH - an association of people related by kinship and (or) property, having property in common ownership and jointly carrying out production and other households. activities based on their personal participation.

production cooperatives.

· Production cooperative- a voluntary association of citizens on the basis of membership for joint production and other economic activities based on their personal labor or other participation and the association of property shares by its members.

2) Unitary:

- SUE

- MUP

· State and municipal unitary enterprises- commercial organizations that are not endowed with the right of ownership of the property assigned to them by the owner. Their statutory fund cannot be divided into parts.

Corporate law. Entrepreneurial activity of business partnerships and companies, their comparative characteristics.

The corporation is partnerships, companies, other types of economic entities based on the totality of members. To the subject of corporate law includes those relations that are associated with the activities of such organizations and intra-company relations. Corporate law- a sub-branch of business law that studies the nature and regulation of a number of legal entities that can be classified as corporations.

Organizational and legal form	Types of commercial organizations
	Business partnerships	Business companies
Organizational and legal basis	An association of persons, involving the personal participation of each founder (participant) in the affairs of the entrepreneurial activity of the company	Pooling of capital that does not require the personal participation of the founders (participants) in the affairs of the company
Founders (participants)	Commercial organizations and (or) individual entrepreneurs. Each of the participants can be a member of only one partnership.	Citizens (not registered as entrepreneurs), individual entrepreneurs, commercial organizations, non-profit organizations. Each of the participants in the society may be a participant in other societies.
Number of founders (participants)	At least 2	Any
Responsibility of the founders (participants)	Unlimited liability of general partners for the debts of the partnership with all their property	Risk of loss (loss of deposits)
Constituent documents	Memorandum of association	Charter
Rights of founders (participants)	1. Participation in the management of the affairs of the organization (does not apply to investors in a limited partnership and shareholders holding voiceless shares).

All possible organizational and legal forms of commercial legal entities have been enshrined in the Civil Code.

Full partnership.

A full business partnership is recognized or is, the participants of which carry out entrepreneurial activities on behalf of the partnership and are subsidiarily liable for its obligations with all the property belonging to them (these participants).

The entrepreneurial activity of a participant in a general partnership is recognized as the activity of the partnership itself, and if the latter’s property is insufficient to pay off its debts, creditors have the right to demand satisfaction from the personal property of any of the participants.

At the same time, those participants who joined the partnership after its creation, as well as participants who left the partnership, also bear personal property liability for the debts of the partnership. The personal liability of these participants is established by law and cannot be limited by agreement of the participants. In this regard, it is customary to say that the relationship between the participants in a general partnership is of a personal-confidential nature.

A general partnership is created on the basis of a constituent agreement from the moment of state registration of which it arises as a legal entity. The affairs of a full partnership may be carried out both by each of its participants, and by all participants jointly.

The management of a general partnership is based on the general consent of all participants (the principle of unanimity applies).

A participant in a general partnership, along with the powers recognized by law for any participant in a company or partnership, is also entitled to get acquainted with all documentation on the conduct of business by the partnership. In addition, he has the right to transfer his share in the joint capital of the partnership both to another partner and to a third person not participating in the partnership, but only with the consent of the other partners. A participant in a general partnership may at any time withdraw from the partnership and demand the issuance of a part of the property to him, in proportion to his share in the share capital, while in a general partnership established on certain period, the exit of the participant is allowed only if there are good reasons.

The obligations of a general partner are to contribute to the common property and refrain from making transactions in their own interests, or in the interests of persons not participating in the partnership, if these transactions are similar to those that are the subject of the partnership (this partner should not compete with the partnership).

Violation of a partner's obligations serves as a basis not only for filing a claim with him for compensation for the losses caused to the partnership, but also for excluding such a partner from the number of participants in the partnership in a judicial proceeding. In case of exclusion from the partnership, the former participant is also paid the value of a part of the common property, proportional to his share in the share capital.

A change in the composition of participants, as a general rule, entails the termination of the partnership, but this may not happen if the constituent agreement or agreement of the remaining participants in the partnership provides for the continuation of the partnership in this situation.

In the absence of a corresponding entry in the founding agreement or agreement of all the remaining participants, the partnership is subject to liquidation. Along with common grounds termination of the activity of a legal entity, a general partnership is also terminated in the case when the only participant remains in it. Since a general partnership cannot exist as a company of one person.

2) Limited partnership (limited partnership) - is such an association of persons in which some participants carry out entrepreneurial activities on behalf of the partnership and at the same time are jointly and severally liable with their personal property for its debts, i.e. are general partners, while others only make contributions to the property of the partnership without directly participating in its business activities and bear only the risk of losing these contributions (these participants are called investors or limited partners).

A limited partnership makes it possible to combine property for entrepreneurial activities to both entrepreneurs (general partners) and non-entrepreneurs (contributors), in a certain way combining the properties of an association of persons and the association of capital. At the same time, limited partners (depositors), without being professional entrepreneurs and risking only their contribution, they do not participate in the conduct of business and in the management of the partnership.

The company name of a limited partnership shall indicate the name or name of all general partners or one general partner with the addition of the words “and company”, a limited partnership. At the same time, the inclusion of the name of the contributor in the firm name of the partnership on faith automatically leads to the transformation of him (the contributor) into a general partner with all the ensuing consequences.

the only founding document faith partnership is memorandum of association, signed by all full partners. Investors do not sign the memorandum of association and do not participate in the formation of its conditions. Relations between contributors and limited partnerships are formalized by agreements on making contributions by them.

The management of the affairs of a limited partnership is carried out exclusively by general partners. Contributors are not entitled to participate in the management and conduct of business of a limited partnership. In addition, they are not entitled to challenge the actions of general partners in managing this partnership.

Both general partners and investors take part in the formation of the share capital of a limited partnership. The investors of a limited partnership shall have the right to receive a part of the profit of the partnership attributable to their share. They can transfer their share both to another contributor and to a third party, this does not require the consent of general partners.

When selling their share to investors to a third party, the other investors of the partnership have preemptive right its purchase, in addition, the investor has the right to withdraw from the partnership at will, while receiving his contribution.

3) Limited liability companies - LLC is recognized economical society with an authorized capital divided into shares, the participants of which are not liable for its obligations and bear the risk of losses associated with the activities of the company within the value of their shares.

As a general rule, LLC has a two-tier management system. The supreme, will-forming body of the company is the general meeting of its participants, whose competence includes the most important issues related to the functioning of the company, which cannot be transferred to the decisions of its other bodies. Issues that are not within the competence of the general meeting are within the competence of the executive body of the company. The executive, will-expressing body of the company, carries out the current management of its activities and is accountable to the general meeting. The executive body may be collegiate, or it may be sole, while a collegial executive body is formed in a company only if it is provided for by its charter, while the charter of the company may provide for the creation of a supervisory board or board of directors. The Supervisory Board is a permanent body that controls the executive bodies of the company. Participants can be any subjects of the GP, with the exception of state and municipal bodies. The number of participants in an LLC cannot exceed 50, while the LLC can also act as a company of one person (1 member).

The scope of rights belonging to a particular member of his company is determined by his specific charter in the capital (?). the participant has the right to alienate his share both (?) and to third parties. When a company participant alienates its share to third parties, other participants have the right of first refusal to purchase or acquire this share. In addition, a participant in a company has the right to withdraw from it by alienating his share to the company, while he has the right to receive the actual value of his share, that is, the corresponding part of the value of the company's property.

29.10.11

4) Company with additional liability - a business company is recognized with an authorized capital divided into shares of participants, the participants of which are jointly and severally liable for its obligations with their property in the same multiple for all of the value of their contributions. Such liability arises only when the property of the company itself is insufficient to cover its debts, however, such liability does not apply to the entire property of the participants, but only to its predetermined part, provided for by the charter of the company.

5) Joint stock company - it is recognized as such a business company, the authorized capital of which is divided into a certain number of equal shares, expressed in securities (shares), and its participants (shareholders) are not liable for the debts of the company and bear the risk of losses within the value of their shares.

Joint stock companies are a way of centralizing big capital. Shares in the collected capital are issued by securities (shares), as a general rule freely tradable, which makes it possible to quickly redistribute capital from one area of ​​business activity to another. Authorized capital A joint-stock company is formalized as a share, the exercise of the rights of a shareholder and their transfer to other persons is possible only by presenting and transferring shares as securities. Moreover, exit from the company can be carried out only by alienating shares to another person, therefore, when leaving the company, a shareholder cannot demand from him (the company) any payments due to his share. He receives only compensation for the alienated shares. The only founding document of a joint-stock company is its charter. The charter of a joint-stock company, along with general information that must be indicated in the constituent documents of any legal entity, must contain conditions on the categories of shares issued, their number and par value. When a joint-stock company is established, all its shares must be distributed among its founders (paid by them at face value). bodies AO-a are:

1. general meeting of shareholders, as the highest will-forming body of JSC

2. supervisory board (board of directors), as the controlling body of the JSC. (in joint stock companies with more than 50 participants, they are created without fail).

3. General Director (JSC Board), as an executive, will-expressing body of this type of legal entity.

In open joint-stock companies there is a three-tier management structure. The General Meeting of Shareholders has exclusive competence, defined directly by law and including the most fundamental issues of the life of society, which cannot be transferred general meeting on the decision of both the executive body and the supervisory board of the JSC. The executive (will-declaring body) JSC-a can be either sole or collegiate. As a general rule, the executive body is the sole, collegiate body is created only if it is provided for by the charter of the joint-stock company. the executive body manages the current activities of the company and resolves all issues that are not within the exclusive competence of the will-forming bodies of the company. According to the current Russian legislation, joint-stock companies are divided into open joint-stock companies and closed joint-stock companies. Open joint-stock companies have the right to sell their shares not only by closed subscription, but also by free sale of shares to everyone. Shareholders open societies have the right to freely alienate their shares both to other shareholders and to third parties. The number of participants in open JSCs is not limited. Unlike them, closed joint-stock companies can distribute their shares only among a predetermined circle of persons, the number of participants in closed joint-stock companies cannot exceed 50. Shareholders of a closed joint-stock company have a pre-emptive right to purchase shares sold by other shareholders of this company. As a general rule, any person can be a participant in both an OJSC and a CJSC. In addition, a joint-stock company may be established by one shareholder. A joint-stock company must maintain a register of shareholders, which must record the number of shares owned by each shareholder, as well as all transactions of shareholders for the alienation and acquisition of these shares.

6) Production cooperative (artel)- is a commercial organization based on the principles of membership, however, unlike partnerships and societies, cooperatives are designed not only for the association of capital, but also for the joint personal labor participation of members of the cooperative in its activities.

A production cooperative is recognized voluntary association of citizens who are not entrepreneurs for joint production or other economic activities based on their personal labor participation and the association of certain property (share) contributions with their personal limited subsidiary liability for the obligations of the cooperative. The management structure of a production cooperative is determined by its corporate nature, in connection with which the general meeting of members of the cooperative is the supreme will-forming body of management. In large production cooperatives with more than 50 members, supervisory boards. executive bodies production cooperative are the board and its chairman, and the chairman of the cooperative simultaneously heads its board. Members of the cooperative and its chairman must be persons taking personal labor participation in the activities of the cooperative. Any number of participants can be in a production cooperative, however, the minimum number is established by law and cannot be less than 5 members. All members of the production cooperative have an equal right to participate in the management of its affairs, always receiving only 1 vote when making decisions by the general meeting, regardless of the size of the share or labor participation. In addition, members of a production cooperative have the right to receive a part of the profit of the cooperative or a liquidation quota corresponding to their labor participation or other contribution. A member of a production cooperative has the right to transfer his share or part of it both to other members of the cooperative and to third parties, while he can freely leave the cooperative, having received his share and other payments provided for by the charter. Since the alienation of a share to a third party entails the obligation to accept it into a cooperative, the law limits this possibility by requiring the cooperative's mandatory consent to accept a new member and the right of other members of the cooperative to preferentially purchase the share alienated to a third party.

7) Unitary enterprise- among all commercial organizations, unitary enterprises are distinguished by the fact that they are not corporations built on the basis of membership and do not become owners of the property assigned to them. The sole founder who created such an enterprise retains the right of ownership to the property transferred to the enterprise, while the enterprise itself is vested only with the right of economic management or operational management of this property. A unitary enterprise is a commercial organization whose property remains the indivisible property of its founder. The term "unitary" emphasizes the indivisibility of the property of such a legal entity on deposits, including between its employees who do not participate in the formation of the property of their enterprise and are not liable for its debts, and therefore do not have any rights to this property. . A unitary enterprise bears independent responsibility for its obligations to all of its property under the right of economic management or operational management of property. Wherein unitary enterprise is not liable with this property for the debts of its founder (owner). The founder (property owner) is liable for the debts of a unitary enterprise only in a subsidiary manner and only in the event of its bankruptcy caused by the fulfillment of the instructions of the owner. A unitary enterprise established by a public owner is the only type of commercial organization that has not general, but special legal capacity, therefore, in addition to the general information indicated in the constituent documents of the legal entity, its charter should contain information about the goals, subject and types of its activities. The overwhelming majority of transactions on the disposal of property state and municipal unitary enterprises are not entitled to make without the prior consent of the founder (owner). In addition, such an enterprise has the right to dispose of any of its property only within the limits that do not deprive it of the opportunity to carry out activities, the goals, subject and types of which are determined by its charter. A unitary enterprise can be created (founded) only by the Russian Federation, its S-th, municipality. Creation of unitary enterprises by co-foundership is not allowed. The company name of a unitary enterprise must contain an indication of the owner of its property (founder). The only constituent document of a unitary enterprise is its charter, approved by the authorized body of public law education. The owner of the property of a unitary enterprise shall appoint a manager for it, who shall be its sole executive body. No other bodies, including will-forming bodies, are envisaged in this image. The founder endows the unitary enterprise statutory fund and oversees its activities. In cases provided for by law or other legal acts, a unitary enterprise is obliged to publish reports on its activities for general information, i.e. conduct business in public.

01.11.11

Topic: GP objects.

The object is traditionally recognized as that to which the activity of the subject is directed. The object of legal relations is therefore understood to be what the activity of the subject is aimed at (in the very general view). In science, there is still no unity of what should be understood as the object of legal relations in general and under the object of civil legal relations in particular. In any case, the object of the legal relationship must be distinguished from the reason or motive for entering into legal relations.

The understanding of the object depends, among other things, on the understanding of the legal relationship itself. If by legal relationship we mean a real social relationship regulated by the rules of law, then we will recognize as an object a certain real substance, i.e. some object real world. If by legal relationship we mean an ideological attitude (Yu.K. Tolstoy), i.e. a certain model of a special relationship that exists only in legal consciousness, we will certainly consider the social relationship itself as an object. Therefore, when understanding the object, it seems most correct to functional approach: before formulating the concept of "Object" it is necessary to determine the purpose of this category. The main purpose of the category "object of legal relations" is to delimit various legal relations among themselves and to determine the legal regime of certain benefits. In understanding the object, there are 2 main directions:

1 - monistic (supporters of it are trying to find or formulate the only object of the legal relationship, i.e. each legal relationship has one single object); 2- pluralistic (recognizes that each legal relationship can have several objects). Variants of the monistic approach: definition of an object as the behavior of people; the good to which this relationship is directed. Pluralistic (O.S. Ioffe) singled out 3 types of objects of civil rights: 1 - legal (this is the behavior of obligated persons, which the authorized person has the right to claim); 2- strong-willed (the will of civil P and O carriers); 3- material (this is the object that underlies the social relationship regulated by law).

The legal list of objects of civil rights is contained in Article 128 of the Civil Code. The objects of civil rights include: things, including money and securities, other property, including property rights, works and services, protected results of intellectual activity and equated means of individualization, intangible benefits.

The category of money and securities is understood as a heterogeneous object. The category of money includes cash, which are undoubtedly things, and non-cash money, i.e. funds in bank accounts. The category of securities combines documentary securities - these are strictly formal documents certifying the existence of a subjective right and non-documentary securities // non-documentary shares that exist in the form of an entry in special registers, including electronic ones. In this regard, the concept of the development of civil legislation and the bill, which was introduced on the basis of this concept, proposes to amend Article 128. The changes are as follows: the number of objects of civil rights includes cash and documentary securities. For non-cash funds and uncertificated securities, the provisions on obligations, i.e. non-cash cash and non-documentary securities are proposed to be considered not as an object of civil rights, but as a form of existence of obligatory civil legal relations.

All objects of civil rights have, to one degree or another, such a property as negotiability. In terms of turnover, all objects are divided into 3 categories: objects free in circulation; objects restricted in circulation //certain medicines, some narcotic drugs, some types of weapons; objects completely withdrawn from circulation. From the point of view of the lecturer, objects withdrawn from circulation cannot be recognized as objects of civil rights at all // subsoil plots, narcotic substances - the bulk.

Signs of objects of civil rights:

Sometimes the signs of objects of civil rights are united by the category of such legal personality - legal object.

1. ability to satisfy interests. Satisfaction of interests can be expressed in the extraction of consumer properties and in the extraction of social properties (means of individualization //brand name)
2. turnover capacity

Types of objects of civil rights:

1. The concept of "property"- The GC does not quite consistently use this term. There are 3 approaches: 1= (Article 128) most often the term "property" is used in a broad sense, includes all possible assets, including property rights, not including only non-material benefits; 2 = very broad (p2 article 132 of the Civil Code) when defining the concept of "enterprise", here property means not only assets, but also liabilities, i.e. debts; 3= narrow meaning (p1 article 209) here only things are included in the concept of property. Thus, in each case when the legislator uses the term "property", we need to clarify in what sense, in what context the term property is used. Property includes: things, money, securities, property rights.
2. activity (process)- it can be an activity aimed at creating material wealth (work) and an activity that in itself satisfies the interests of a person (service)
3. protected results of intellectual activity and equated means of individualization–
4. special mention should be made of such an object as Property Complex- is a collection various kinds property united by economic purpose, purpose of use, legal fate. //enterprise, estate, property of a legal entity being reorganized
5. intangible benefits// name, honor, dignity, business reputation. It is generally accepted that intangible benefits are not regulated by the SOE, but are only protected, i.e. they can only be objects of protective civil legal relations.

The question of the object of organizational relations - relations related to the organization of the activities of subjects of civil rights // the right to information about the activities of legal entities, the right to demand the conclusion of an agreement. Options:

1. the state of organization is recognized as an object public relations is more of a goal than an object
2. the object of the main relation, i.e. the relationship that is organized
3. self-organized relationship.