commercial organization- A legal entity pursuing profit as the main goal of its activities, in contrast to non-profit organization, which is not intended to make a profit and does not distribute the profits 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.
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 by the partnership entrepreneurial activity.
- 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 certain founding documents sizes; 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 provided for 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 – voluntary association of citizens on the basis of membership for joint production and other economic activity based on their personal labor or other participation and the association of property share contributions 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). | |
The concept of a business entity
Business entities are persons who directly carry out professional business activities on an ongoing basis.
Definition 1
The subject of entrepreneurial activity is a person officially registered, possessing property, on the basis of which he conducts entrepreneurial activity, is the bearer of the rights established by law, and bears independent property responsibility. Also, a business entity can engage in certain types of activities only with a license.
Like any other economic unit, a business entity is characterized by a number of key elements, the characteristics of which are given directly in the definition: separate property, registration carried out in the prescribed manner, direct management of activities, economic competence, property responsibility, which is independent in nature.
Types of entities - individual entrepreneurs and legal entities
Individual entrepreneurs carry out entrepreneurial activities without forming a legal entity. Information on the acquisition or termination of the status of an individual entrepreneur is recorded in a special state register. For registration to an individual it is necessary to provide a certain list of documents and an application to a special registration authority. Registration is carried out within 5 days from the date of application and submission of the application.
Legal entities are organizations that have separate property, which can acquire civil rights and obligations on their own behalf, as well as act as a plaintiff or defendant in arbitration court. Legal entities, in turn, are divided into commercial and non-commercial organizations.
The activity of commercial organizations is aimed at making profit and its distribution, while non-profit organizations do not pursue such a goal. Non-profit organizations are divided into charitable, public and religious organizations and consumer cooperatives.
Types of commercial organizations
Commercial organizations are divided into:
- State and municipal enterprises- are divided into unitary and state-owned enterprises. Unitary enterprises are organizations that are not endowed with the right of ownership of the property assigned to them.
Business partnerships are divided into general and team partnerships, whose authorized capital is divided between the participants into shares.
Participants in general partnerships are engaged in entrepreneurial activities on the basis of an agreement concluded between them and bear full responsibility for the obligations of the partnership with their property.
Team partnerships (on faith), in addition to participants engaged in entrepreneurial activities and bearing full responsibility for their property, include so-called investors who do not carry out activities and are liable only in the amount of the treasures they have contributed.
Business companies are divided into joint-stock, limited, and additional liability companies.
The founding (authorized capital) of limited and additional liability companies is divided among the participants into shares (the size is determined by the founding document). The difference lies in the fact that additional liability implies the incurring of liability for the risks of the enterprise in an amount that is a multiple of the value of the contribution made.
The authorized capital of joint-stock companies is divided among the participants into a certain number of shares, while the participants themselves are not liable for the obligations of the company and bear a loss risk only within the value of their shares.
Production cooperatives are voluntary associations of citizens for joint activities(industrial or other economic) based on their personal labor participation and the pooling of their property share contributions;
Commercial organizations as subjects of business law: concept and types.
A commercial organization is a legal entity that pursues making profit as the main goal of its activities, in contrast to a non-profit organization that does not aim to make a profit and does not distribute the profits among its participants.
The main features of a commercial organization:
The purpose of the activity is to make a profit;
The organizational and legal form clearly defined in the law;
Distribution of profit between the participants of the legal entity.
Also, commercial organizations have all the features inherent in a legal entity: They have separate property on the basis of ownership, economic management or operational management, other proprietary rights; the property may be leased; Responsible for their obligations with their property; Acquire and exercise property and non-property rights on their own behalf; have responsibilities;
Can be a plaintiff and defendant in court.
Types of commercial organizations are defined by Part 2 of Art. 50 of the Civil Code of the Russian Federation: Legal entities that are commercial organizations can be created in the organizational and legal forms of economic partnerships and companies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises.
Members of a commercial organization have the right to participate in management.
Get information about their activities.
Receive profit in proportion to the contribution.
Receive property after liquidation.
The procedure for creating a commercial organization
1. Determination of the composition of the founders, holding a general meeting of founders.
(various requirements for the competence and status of the institution, depending on the legal form) Restriction for the state. Employees.
2. Choice of legal form (with the exception of restrictions) The auditors are not OJSC.
1. Number and status of the institution.
2. Activity profile.
3. Sources of capital.
4. The structure of relations both between the founders and between the governing bodies.
5. Measure of labor and other personal participation.
6. Ability to control other commercial organizations.
7. Measures of responsibility of the founders.
3. Registration of constituent documents.
Memorandum of association (Business partnership) - documents that are concluded by the founders of legal entities. Persons in a simple written form, by drawing up a single document, indicating in it the place and date of the conclusion of the contract, and in the same place its validity period, signed by the participants personally.
Charter (JSC, LLC, Production cooperative, state municipality. Enterprise) - documents establish legal status organizations.
4. Development of the name of a commercial organization - individualization in economic circulation. Mandatory indication of the organizational legal form. Legal regime of objects of foreign communities. Sometimes the use of certain words (for example, Bank)
5. Determination of the location of the organization (indicated in the constituent documents) - the location of the main governing body of a permanent legal entity.
6. Formation of authorized (share) capital, authorized share fund (at the time of state registration for ... .. not less than 50% - capital, 10% - share contribution in a production cooperative)
7. State registration of jur. Persons in the manner prescribed by law.
Registration with the tax authority, state. Social funds.
Prints. Registration with the statistical authorities.
Opening a current account.
The creation of a subject of business law is a process of performing legally significant actions and adopting relevant acts aimed at giving a person the status of a subject of business law.
Traditionally, there are four ways to create business law entities.
1. The constituent and administrative method provides that the basis for the establishment of a legal entity is the order of the relevant state or municipal body (decisions of the Government of the Russian Federation, bodies of constituent entities of the Russian Federation and local government). This method used in the creation of state and municipal unitary enterprises. The functions of the owner to create such enterprises are assigned to the relevant federal executive authorities, the executive authorities of the constituent entities of the Russian Federation and the relevant local governments.
2. The founding method is used when creating commercial organizations with one participant (for example, business companies), as well as when legitimizing individual entrepreneurial activity.
3. The contractual-constituent method is used when creating commercial organizations with more than one founders (economic partnerships, business companies, production cooperatives).
4. The permissive-constituent method provides for the need to obtain permission from a state body to create a commercial organization (for example, on the basis of Article 17 of the Law of the RSFSR “On Competition and Restriction of Monopoly Activities on commodity markets» in some cases, it is necessary to obtain permission from the antimonopoly authority).
Types and procedure for the reorganization of a commercial
Organizations
The reorganization of a legal entity (merger, accession, division, separation, transformation) may be carried out by decision of its founders (participants) or by the body of the legal entity authorized to do so by the founding document.
It is allowed to reorganize a legal entity with a simultaneous combination of its various forms.
Reorganization is allowed with the participation of two or more legal entities, including those created in different organizational and legal forms, if this Code or another law provides for the possibility of transforming a legal entity of one of such organizational and legal forms into a legal entity of another of such organizational and legal forms.
Reorganization - a set of legally significant actions of the founders of legal entities and state. Bodies aimed at the implementation of the transition of rights and obligations of legal entities. Persons to other legal entities. Persons in the order of succession, as well as the commission of state acts by authorized state bodies. Registration of creation and liquidation of legal entities. Persons changing their constituent documents. GK is regulated.
Types (forms):
1. Merger: When legal entities merge, the rights and obligations of each of them are transferred to the newly established legal entity in accordance with the deed of transfer.
2. Accession: When a legal entity joins another legal entity, the rights and obligations of the affiliated legal entity are transferred to the latter in accordance with the deed of transfer.
3. Separation: When a legal entity is divided, its rights and obligations are transferred to newly emerged legal entities in accordance with the deed of transfer.
4. Separation: When one or more legal entities are separated from a legal entity, the rights and obligations of the reorganized legal entity are transferred to each of them in accordance with the deed of transfer.
5. Transformation: When a legal entity of one organizational and legal form is transformed into a legal entity of another organizational and legal form, the rights and obligations of the reorganized legal entity in relation to other persons do not change, with the exception of the rights and obligations in relation to the founders (participants), the change of which is caused by the reorganization .
6. Depending on the subject that made the decision to reorganize the legal entity. Persons:
1. Voluntary (the decision is made by the founders)
2. Forced (in cases provided for by law in case of violation of publicity, an external manager is appointed)
Reorganization procedure:
1. Consent government agencies(merger, accession if the transaction of total assets is more than 30 million rubles)
2. Written notice to creditors (may require early repayment of the performance of the obligation or termination of the obligation and indemnification)
3. Ensuring the rights of creditors (the deed of transfer must contain information about the succession, if the deed of transfer does not determine the successor - joint and several liability)
4. Making a decision on reorganization, approval of the deed of transfer
5. State registration of newly formed legal entities.
6. A legal entity is considered reorganized from the moment state registration changes in the Unified State Register of Legal Entities.
1. The deed of transfer must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties, as well as the procedure for determining the succession in connection with a change in the type, composition, value of property, the emergence, change, termination the rights and obligations of the reorganized legal entity that may occur after the date on which the deed of transfer is drawn up.
2. The deed of transfer is approved by the founders (participants) of the legal entity or the body that made the decision on the reorganization of the legal entity, and is submitted together with the constituent documents for the state registration of legal entities created as a result of the reorganization, or for making changes to the constituent documents of existing legal entities.
Failure to submit a deed of transfer along with the constituent documents, the absence of provisions in it on the succession of all obligations of the reorganized legal entity entails a denial of state registration of legal entities created as a result of the reorganization.
The modern civil legislation of Russia (Article 132 of the Civil Code of the Russian Federation) defines the concept of "enterprise" as a property complex used for entrepreneurial activities. At the same time, the named article considers the enterprise as an object 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 works 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). legal institution Western civilists have paid increased attention in the past 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 arrival at the end of the 18th century. to the political power of the third estate.
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 passed 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 of international agreements and conventions.
Therefore, it is hardly possible to indiscriminately assert that the concept of " company" is used in the legislation of foreign states erroneously, which would be more correct to use the term "legal entity". After all, it is impossible to consider the legal model of an enterprise formulated in the Civil Code of the Russian Federation as a criterion of truth (with all due respect for this product of civilistic thought).
In theoretical terms, the phenomenon of the enterprise raises a number of fundamental questions. Let's take a look at them in detail.
First of all, we note that the term "enterprise" has an economic origin. Even K. Marx, criticizing P. Proudhon on the issue of understanding factories and machines, wrote:
"A machine is only a productive force. The modern factory, based on the use of machines, is a social relation of production, an economic category."
However, this is where the unity of opinion among academic economists ends and a palette of different points of view is revealed. So, for some researchers, an enterprise is the primary cell of the economic system, for others it is a team of workers and employees, for others it is economic unity, in which the human and material factors of economic activity are combined and coordinated. With different interpretations of opinions, the most common (at least in Western economic literature) point of view on the enterprise as a junction of various factors: natural resources, labor and capital. Domestic scientists-economists react poorly to the economic origin of the enterprise.
The economic nature of the enterprise is manifested, in particular, in the fact that the enterprise is a property complex (a set of assets). This affiliation allowed a number of legal scholars to attribute the enterprise to the category of things.
This conclusion is in line with Art. 128 of the Civil Code of the Russian Federation, according to which objects of civil rights include things, including money and securities, other property, including property rights. We must agree with the opinion that an enterprise is an object that " falls out"from the classification of immovable and movable things, since it is not even a complex thing. Therefore, an enterprise is a special object of civil rights, and therefore it would be advisable to supplement Article 128 of the Civil Code of the Russian Federation with a norm on an enterprise.
Within the meaning of Art. 132 of the Code, an enterprise is not just a property complex. This is a complex used for business activities. In this capacity (when the participation of the subject-owner in the civil circulation makes it possible to extract a stable and definitely predictable income), the property complex becomes an enterprise. From this, two fundamentally important conclusions can be drawn. First, the concepts of "property complex" and "enterprise" are related as a genus and species. The foregoing means that the scope of the concept of a property complex should not be limited to commercial organizations, the main purpose of which is to make a profit. This concept is also applied to non-profit organizations with the only difference that the property complex is not used for general rule for business activities. On the other hand, non-profit organizations can engage in entrepreneurial activities only insofar as this serves to achieve the goals for which they were created (clause 3, article 50 of the Civil Code of the Russian Federation). In this case, the property complex 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 state and municipal property. The main emphasis was placed on the issue of changing the form of ownership to the maximum short time. The interests of the labor collective were consigned to oblivion.
The enterprise as a whole as a property complex is recognized as real estate, and therefore it is subject to general provisions Civil Code of the Russian Federation, as well as other federal laws on the legal regime of real estate. True, the Code does not automatically subordinate it (an enterprise) to all real estate rules, but establishes a special, more formalized and strict regime for transactions with enterprises.
The 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. Otherwise, it should be assumed that the enterprise has bodies that implement these requirements.
The same can be said about the norm of Art. 132 of the Code that the property complex is intended for entrepreneurial activities. Here the remark of A.E. Pilecki and other authors, according to which the object of law (in our case, an enterprise) cannot carry out any activity, since this requires the presence of legal personality.
In connection with the above point of view, V.V. Vitryansky expressed the following considerations. When the legislator mentions the rights of claim and debts as part of the property of an enterprise as a single property complex, he means, of course, the rights of claim and debts for the obligations of the owner of the enterprise related to the activities of this property complex. In itself, an enterprise, not being a legal entity, in principle, cannot have rights and obligations.
What the legislator has in mind is known only to him, and not to the respected professor Vitryansky. However, the content of Art. 132 of the Civil Code of the Russian Federation makes it possible to detect contradictions, moreover, of a very fundamental nature.
In modern courses of contract law, the words of the medieval judge Brian are often quoted from a judgment issued by him in 1478:
"... the intention of a person cannot be the subject of a trial, since the devil himself does not know the intention of a person."
In practice and in theory, the question arose about the inclusion in the composition of the enterprise as a property complex intended for entrepreneurial activity, property that has a different purpose (social, cultural, etc.). For example, an object of social and cultural purpose is included in the charter of a joint-stock company as a contribution. The question is: is this object subject to accounting as part of the property complex of the enterprise or is it necessary to keep some other separate accounting? There is no clear, unambiguous answer to this question in the current legislation.
By virtue of paragraph 32 of Art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include expenses of industries and households serving the taxpayer, including expenses for the maintenance of housing and communal and socio-cultural facilities. And finally, in 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 enterprise sale and purchase agreement wish to include in the property complex such intangible benefits as the enterprise's reputation, its business relations or market position, which are called goodwill in countries with developed market economies. 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. Let's say, for example, a branch, a representative office, an individual entrepreneur, a 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 relations related to the legal regime of the 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 relationship between the concepts of "enterprise", "legal entity", "organization" is a complex issue that needs special research. 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:
- complex;
- simple;
- 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 divisions). And organizations with limited tax rights are understood as territorially separate subdivisions.
In view of the foregoing, it can be argued that a legal entity is a certain property of an organization. Therefore, it is correct to talk about the types of organizations that have the status of a legal entity and do not have such a status. This is the main classification of the organization.
All legal entities can be classified into commercial and non-commercial organizations.
A commercial organization is an organization whose activities are aimed at making profit and dividing it among participants.
Business companies and business partnerships.
A business company and a business partnership are commercial organizations created on a voluntary basis on a membership basis and are endowed with general legal capacity by law. They become the owners of the property formed at the expense of the contributions of the founders (participants), as well as produced and acquired in the course of their activities.
Differences between a business company and a business partnership:
- 1. H.T. - association of persons. H.O. - the pooling of capital.
Those. in H.T. in addition to property contributions, direct, personal participation in the affairs of the partnership is assumed. These cases should be conducted by the participants themselves, without involving hired persons in them. The participants of H.T. (general partners) can only be individual entrepreneurs and commercial organizations.
2. Participants in partnerships (with the exception of contributors), in contrast to participants in companies, bear unlimited liability with personal property for the obligations of such partnerships if the latter lack their own property.
Economic companies.
Limited Liability Company- a business company, the authorized capital of which is divided into shares. The participants are not liable for the debts of the company and bear the risk of losses within the limits of their contributions, and the company is not liable for the debts of the participants. The number of participants is not more than 50. Otherwise, the LLC must be transformed into an OJSC or a production cooperative. LLC can be established sole member. An LLC is not entitled to have as a founder another company founded by a single person.
The LLC has a two-tier management structure:
- The supreme body is the meeting of participants (or the sole founder).
- Executive body: always sole (director) and, if necessary, a collegial body is created.
When leaving the LLC, a participant has the right to pay him a part of the property corresponding to his share.
Additional Liability Company- corresponds to the characteristics of an LLC, with the exception of the additional liability of the participants. The participants jointly and severally bear subsidiary (additional) liability for the debts of the ALC, i.e. responsible for the insufficiency of the property of the company itself.
With the entry into force of the Federal Law of 05.05.2014 No. 99-FZ "On Amending Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as invalid", this organizational form of entrepreneurial activity will be excluded.
Joint stock company (CJSC or OJSC)- a business company, the authorized capital of which is divided into a certain number of shares, and its participants (owners of shares - shareholders) are not liable for the debts of the company and bear only the risk of losses within the value of their shares. Withdrawal from the company can be carried out only by alienating the share (shares) to another person. Thus, a joint-stock company is guaranteed against a decrease in its property due to the withdrawal of participants from it.
The value of a joint-stock company lies in the possibility of attracting and centralizing large capital, initially dispersed among many small owners.
Joint-stock companies are divided into closed (CJSC) and open (OJSC). JSC has the right to sell its shares among an indefinite circle of persons. Shareholders of an OJSC have the right to freely alienate their shares both to other shareholders and to third parties. CJSC can distribute their shares only among the founders or other predetermined circle of persons. The number of participants in a CJSC should not exceed 50.
JSC management structure:
The supreme body general meeting shareholders, which has the exclusive competence to change the charter, make decisions on reorganization or liquidation, form executive bodies, etc.
Board of Directors (Supervisory Board) (if more than 50 members - mandatory).
The executive body (sole and (or) collegiate) deals with the resolution of all issues that do not constitute the exclusive competence of the general meeting and the Board of Directors.
Business partnerships.
General partnership- a partnership, the participants of which, in accordance with the agreement concluded between them founding agreement, carry out entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property.
A person may be a participant in only one full partnership.
The management of the activities of a general partnership is carried out by common agreement of all participants. The founding agreement of a partnership may provide for cases where the decision is taken by a majority vote of the participants.
Profits and losses of a general partnership shall be distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the memorandum of association or other agreement of the participants.
Limited partnership (limited partnership) - a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership.
The management of the activities of a limited partnership is carried out only by general partners.
Production cooperative (artel) - a commercial organization, which is a voluntary association of citizens who are not entrepreneurs for joint production or other economic activities based on their personal labor (or other) participation and the association of certain property (share) contributions, with their personal limited subsidiary liability for the obligations of this commercial organization .
The supreme governing body of a cooperative is the general meeting of its members.
State and municipal unitary enterprises.
A unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares).
Only state and municipal enterprises can be created in the form of unitary enterprises.
The property of a state or municipal unitary enterprise is respectively in state or municipal ownership and belongs to such an enterprise on the right of economic management (Article 294 of the Civil Code) or operational management (Article 295 of the Civil Code).
Economic partnership.
In accordance with the Federal Law of 03.12.2011 N 380-FZ "On economic partnerships", an economic partnership (hereinafter referred to as a partnership) is recognized as a partnership established by two or more persons commercial organization, in the management of which, in accordance with this Federal Law, participants in the partnership (partners), as well as other persons, are involved to the extent and to the extent that are provided for in the charter and agreement on the management of the partnership. The list of activities that cannot be carried out by partnerships is approved by the Government of the Russian Federation.
The participants of the partnership (partners) are not liable for the obligations of the partnership and bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of their contributions. The partnership is liable for its obligations with all its property and is not liable for the obligations of its members.
From September 1, 2014, Federal Law No. 99-FZ of May 5, 2014 introduces a new classification of organizational forms of legal entities. All legal entities, in accordance with the amendments to the Civil Code, will be divided into corporations and unitary legal entities (Article 65.1 of the Civil Code of the Russian Federation as amended by Law No. 99-FZ). The possibility of creating companies with additional liability and closed joint-stock companies has been excluded. A new organizational and legal form of a non-profit organization has been created - a partnership of real estate owners.
Corporations- organizations in respect of which their members have corporate rights. These organizations include all commercial legal entities (with the exception of unitary enterprises), as well as a number of non-profit ones:
consumer cooperatives;
Public organizations;
Associations (unions);
Associations of property owners;
Cossack societies included in the relevant state register;
Communities of indigenous peoples.
Unitary organizations- legal entities whose founders do not become their participants and do not acquire membership rights in them.
These include state and municipal unitary enterprises (which are commercial organizations), as well as the following non-profit organizations:
Public, charitable and other foundations;
State institutions (including state academies of sciences), municipal and private (including public) institutions;
Autonomous non-profit organizations;
Religious organizations;
Public law companies.
Business companies since September 1, 2014 are divided into public(joint-stock companies whose shares and securities convertible into such shares are publicly placed (by public offering) or publicly traded) and non-public(limited liability companies and joint-stock companies that do not meet the criteria of a public company).
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general restrictions (at the level Art. fifty
Non-profit organizations, as a general rule, differ from commercial ones in that they have the right to carry out entrepreneurial activities only in so far as it is necessary to achieve their statutory goals. At the same time, they are not entitled to distribute the profits received among their participants (clause 1, article 50 of the Civil Code of the Russian Federation).
The current version of the Civil Code of the Russian Federation contains an open list of non-profit organizations. However, in accordance with the changes that come into force on September 1, 2014. paragraph 2 of article 50 of the Civil Code will be set out in new edition, and will contain a closed list of organizational and legal forms of non-profit organizations (consumer cooperatives, public organizations, associations (unions), partnerships of property owners, Cossack societies, communities of indigenous peoples of the Russian Federation, foundations, institutions, autonomous non-profit organizations, religious organizations, public companies).
Non-commercial organizations can carry out income-generating activities, if it is provided for by their charters, only in so far as it serves the achievement of the goals for which they were created, and if it corresponds to such goals. A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of state and private institutions, must have property sufficient for the implementation of these activities with a market value of at least the minimum amount of the authorized capital provided for limited liability companies
Restrictions on the right to engage in entrepreneurial activities for non-profit organizations (in force since the adoption of the Civil Code of the Russian Federation) can be divided into two types:
general restrictions (at the level Art. fifty Civil Code of the Russian Federation) - connection with the main activity and a ban on the distribution of profits;
private (specific) restrictions (at the level of the norms of individual federal laws) - the establishment of additional limits, including by listing the permitted types of entrepreneurial activity.
In any case, non-profit organizations are created for socially useful purposes, therefore, entrepreneurial activity should perform an exclusively auxiliary function, i.e. be subject to statutory purposes. According to M.V. Bloshenko, “we can talk about “serving” entrepreneurial activity to the main goal of the activity of a non-profit organization, if the profit received from entrepreneurial activity is directed directly to achieving these goals”
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