The variety of forms of ownership is the basis for the creation of various organizational and legal forms of organizations. According to the current Russian legislation, there are various organizational and legal forms of commercial organizations.
The form of ownership is also determined depending on who owns the organization. The legislation of the Russian Federation provides for the following forms of ownership: private, state, property public organizations(associations) and mixed.
Private property includes:
a) property of citizens individuals, including property of personal subsidiary plots, vehicles and real estate;
b) property of an association of citizens (general partnerships);
c) property of groups of individuals - partnerships with limited liability, joint stock companies (closed and open, property of cooperatives);
d) property of business associations (business entities and partnerships, concerns, holdings, associations, unions, etc.);
e) mixed ownership of citizens and legal entities... State property is formed by objects:
a) federal (RF) property;
b) property of the constituent entities of the Russian Federation (republics, territories, regions, autonomous districts and cities of Moscow and St. Petersburg);
c) municipal (districts, districts, prefectures) property.
Mixed ownership is formed as a combination of different forms property. Organizations (companies) with a mixed economy are companies in which the state or any government agency merge with private capital for various reasons, for example, state participation in a private company, activity
which is in the public interest, or to control and direct it general policy and others. The state, participating in such companies, seeks not so much to make a profit, but to direct the policy of these organizations. This is sometimes the duality of such a system, since, on the one hand, a situation may arise when members of the board representing the state contribute to the weakening of the production and financial responsibility of the company, seek to impose on it the point of view of the government, which does not always help its successful operation. On the other hand, such a company expects to receive various kinds of privileges. To balance these interests, it is necessary that government representatives participate in the economic activities of the company and bear responsibility for its economic performance.
According to the form of ownership, organizations can be subdivided into private and public (Figure 3.3).
Organizations of the private sector of the economy differ depending on whether one or more persons are its owners, on the responsibility for its activities, the way in which sole capital is included in the total capital of the organization. The public sector of the economy is state (federal and subjects of the federation) and municipal enterprises (I mean not so much the fact that the state acts as an entrepreneur, but the circumstance that state or public enterprises operate on the principles of entrepreneurship).
Business entities
The private sector (entrepreneurial activity of citizens without the formation of a legal
business persons and partnerships and societies, cooperatives)
Public sector
(state: federal, subjects of the Federation and municipal enterprises)
General business principles
Rice. 3.3. Typology of enterprises by ownership
An individual entrepreneur (IE) - a capable citizen independently, at his own risk and under personal individual responsibility carries out entrepreneurial activity and registered for these purposes in accordance with the established procedure.
The individual entrepreneur bears full responsibility for the obligations with all property belonging to him, except for the one, which is levied in accordance with the Civil Code of the Russian Federation. This means that the collection of the debts of an individual entrepreneur can also be imposed on his personal property that is not involved in entrepreneurial activity.
State registration as an individual entrepreneur takes place without the formation of a legal entity, but he is a full participant in civil turnover, therefore, legal norms governing the activities of commercial organizations apply to him. An individual entrepreneur can, after paying taxes, dispose of the profit received at his own discretion. For him, a simplified form of taxation system is provided, which consists in the quarterly payment of taxes on the declared
by the sole proprietor income. Personal income of individual entrepreneurs is taxed in the same way as personal income tax.
An individual entrepreneur has the right to create commercial organizations. After registering as commercial organization Individual entrepreneurs can hire, fire workers. He can invest his capital in other areas of activity, making a profit from this. The number and value of property owned by individual entrepreneurs is not limited by law. May be privately owned land enterprises, property complexes, buildings, structures, equipment, securities, etc. An individual entrepreneur can be a member of general partnerships, as well as conclude agreements on joint activities (in the form of a simple partnership).
On the territory of Russia, individual entrepreneurs have the same rights as legal entities. According to the law "On investment activity in the Russian Federation" foreign citizens can also engage in entrepreneurship. All investors enjoy equal rights; protection of these rights is guaranteed by the state, regardless of the form of ownership.
An individual entrepreneur is the head of a peasant (farm) economy that operates without forming a legal entity.
The state registration of a citizen as an individual entrepreneur loses its force and his activity ceases from the moment:
The court makes a decision to declare an individual entrepreneur insolvent (bankrupt);
Receipt by the registering authority of the entrepreneur's application for cancellation state registration and the quality of the entrepreneur and the certificate of registration previously issued to him;
Death of a citizen;
Recognition of a citizen as incompetent or partially capable by a court decision (in the absence of the consent of the trustee to engage in entrepreneurial activity).
An individual entrepreneur who is unable to satisfy the claims of creditors related to the implementation of entrepreneurial activity may be declared insolvent (bankrupt) by a court decision.
Individual entrepreneurship is a priority for people who are able to single-handedly control the decision-making process. The advantage of sole ownership is the payment of only income tax, which makes his business more sustainable and attractive, as well as independence in the distribution of profits. An important advantage of an individual business is its mobility when changing areas of activity.
Commercial organizations are divided into three broad categories: organizations that bring together individual citizens (individuals); organizations uniting capitals and state unitary enterprises (Fig. 3.4). The former include business partnerships and production cooperatives. The Civil Code clearly divides partnerships - associations of persons requiring direct participation of the founders in their activities, companies - capital associations that do not require such participation, but involve the creation of special governing bodies. Business partnerships can exist in two forms: full partnership and limited partnership (limited partnership).
In a full partnership (PT), all of its participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and bear full financial responsibility for its obligations. Each participant can act on behalf of the partnership, unless a different procedure is established by the memorandum of association. The profits of a full partnership are distributed among the participants, as a rule,
in proportion to their shares in the contributed capital. For the obligations of a full partnership, its participants shall be jointly and severally liable with their property.
A limited partnership, or limited partnership (TV or KT), is a partnership in which, along with general partners, there are also contributing participants (limited partners) who do not take part in the entrepreneurial activities of the partnership and bear limited material liability within the amounts contributed by them deposits. Essentially, TB (CT) is a complicated type of PT.
In a full partnership and limited partnership, shares of property cannot be freely assigned, all full members bear unconditional and joint liability for the liability of the organization (they are responsible with all their property).
Business partnerships (HT), like business companies (HO), are commercial organizations with authorized (joint-stock) capital divided into shares (contributions) of founders (participants). The differences between chemotherapy and chemotherapy are manifested in relation to their more specific forms, in the methods of their formation and functioning, in the characteristics of their subjects in terms of the degree of material responsibility of these subjects, etc. general view all these differences can be interpreted in the context of the relationship of corporate partnerships.
Commercial organizations, the main activity of which is making a profit (Article 50 of the Civil Code, clause 2)
Business partnerships and companies (Art. 66-68 Civil Code)
Production cooperatives (Article 107-112 of the Civil Code)
State unitary enterprises (Art.
113 GK)
Business partnerships
Business companies
On the right of economic management (Article 114 of the Civil Code)
Full partnership (Art. 69-81 of the Civil Code)
Limited partnership
(Article 82-86 of the Civil Code)
On the right of operational management of a holding company with additional liability (Article 95 of the Civil Code) Subsidiary unitary enterprise on the right of economic management of a Limited Liability Company (Article 8794 of the Civil Code)
/ Closed JSC
Joint Stock Companies (JSC) (Art. 96-104 Civil Code)
Open JSC Subsidiary business company (Article 105 of the Civil Code)
Dependent business company (Article 106 of the Civil Code)
Rice. 3.4. Organizational and legal forms of commercial organizations
A production cooperative (PC) is a voluntary association of citizens on the basis of membership for a joint production or other economic activity based on their personal labor or other participation and combining it
members (participants) of property share contributions. The peculiarities of the PrK are the priority of production activities and the personal labor participation of its members, the division of the PrK's property into shares of its members (Fig. 3.5).
Cooperatives and organizations with the participation of workers in management and profits, which have served to spread in a mixed economy, have certain advantages over companies of an entrepreneurial type in labor productivity, social climate and labor relations, income distribution. The introduction of inherently socialist principles of organization into economic activity (participation of workers in management, in profits and in the ownership of shares) is seen as a means of overcoming the difficulties that entrepreneurial organizations constantly face: bureaucratization of management structures in large corporations; weak interest of workers in the success of the company (because their remuneration is still limited to wages); losses from strikes and labor conflicts; high fluidity work force, associated in the current conditions with particularly high costs due to the growing costs of training workers for specific activities in this particular organization, etc. Cooperative for performing various types of work (mining, solving scientific and technical problems) Production (profile - production of goods) 1 Construction and repair (profile - provision of construction and repair services)
Sales (profile - sales of products manufactured by partners, mainly wholesale)
Trade (profile - trade in partners' products, mainly retail)
Rice. 3.5. Types of cooperatives
But purely self-governing companies lose to entrepreneurial ones in a number of ways: in addition to weak and possibly backlash to market signals in the short term, they tend to “underinvest,” that is, to eat up their profits; in the long run, they are conservative in risky projects and technical innovations.
A joint-stock company (JSC) is a company whose authorized capital consists of the par value of the company's shares acquired by shareholders, and, accordingly, is divided into this number of shares, and its participants (shareholders) are materially liable within the value of their shares (Fig. 3.6). Stock
societies are divided into open and closed (OJSC and CJSC). OJSC participants can alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription to the issued shares and their free sale. In a closed joint-stock company, shares are distributed by private subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian legislation is limited to 50 persons.
A limited liability company (LLC) is a company whose authorized capital is divided into shares of participants who are materially liable only within one hundred
A joint-stock company (JSC) is a company whose authorized capital consists of the par value of the company's shares acquired by shareholders, and, accordingly, is divided into this number of shares, and its participants (shareholders) are materially liable within the value of their shares (Fig. 3.6). Joint-stock companies are divided into open and closed (OJSC and CJSC). OJSC participants can alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription to the issued shares and their free sale. In a closed joint-stock company, shares are distributed by private subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian legislation is limited to 50 persons. Shares are securities, evidence of the contribution of a share to the authorized capital, giving the right to vote at the general meeting and the right to receive dividends as part of the profit -? The share price depends on supply and demand on the stock exchange and the "street market"
The controlling stake belongs to one individual or legal entity, allows the holder to control the activities of the JSC
Unpacking shares exchange of shares for other securities initiated by JSC Fig. 3.6. Characteristics of shares
But there is also a third, "hybrid" category - a limited liability company and an additional liability company - which simultaneously refers to organizations that unite individuals and to organizations that unite capitals.
A limited liability company (LLC) is a company, the authorized capital of which is divided into shares of participants who are materially liable only within the value of their contributions. Unlike
partnerships in an LLC, an executive body is created to carry out the day-to-day management of its activities.
An additional liability company (ALC) is essentially a type of LLC. Its features: joint and several subsidiary liability of the participants for the obligations of the ALC with their property in the same multiple for all to the value of their contributions, determined in the constituent documents; division in the event of bankruptcy of one of the ALC participants of his responsibility for the obligations of the company between other participants in proportion to their contributions.
State and municipal unitary enterprises (UP) include enterprises that are not endowed with the ownership right to the property assigned to them by the owner. This property is in state (federal or federal subjects) or municipal property and is indivisible. There are two types of unitary enterprises (Table 3.1):
Table 3.1
Types of unitary enterprises Unitary enterprise Property Creation Enterprise responsibility On the right of economic management In state or municipal ownership By the decision of the authorized state (municipal) body The owner is not liable for the obligations of the enterprise On the right of operational management (federal state enterprise) In state ownership By decision of the Government of the Russian Federation The company is responsible for all its obligations with all property and is not responsible for the obligations of the owner. Subsidiary responsibility for the obligations of a state-owned enterprise is borne by the Government of the Russian Federation 1) based on the right of economic management (they have broader economic independence, in many respects act as ordinary commodity producers, and the owner of the property, as a rule, is not responsible for the obligations of such an enterprise);
The organizational and legal forms of organizations are determined by Chapter 4 of the Civil Code of the Russian Federation. As noted above, the organizational and legal form determines:
how the authorized capital is formed;
the goals of the organization;
features of enterprise management;
distribution of profits and a number of other points.
There are the following organizational and legal forms of commercial organizations:
partnership (general partnership and limited partnership);
company (limited liability company, additional liability company, joint stock company);
unitary enterprise (municipal unitary enterprise and state unitary enterprise);
production cooperative.
There are the following organizational and legal forms of non-profit organizations:
consumer cooperatives;
institutions;
charitable and other foundations;
public and religious organizations;
associations or alliances.
Partnerships. Business partnerships and societies are commercial organizations with the authorized (pooled) capital divided into shares (contributions) of the founders (participants). Partnerships are associations of individuals and (or) legal entities that unite for joint activities, the property of the partnership is formed at the expense of the participants' contributions. The partnership can be organized in the form:
full partnership;
limited partnership (limited partnership).
Full partnership- a partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activity on behalf of the partnership and are responsible for its obligations with property belonging to them. A general partnership is created and operates on the basis of a memorandum of association. All participants have equal rights in the management of the partnership, that is, any of the participants can assume obligations on behalf of the partnership, and this obligation automatically falls on all other participants, therefore, there must be high degree trust. A feature of a full partnership is that all partners are fully responsible for the obligations of the partnership, which also applies to the personal property of the founders.
Limited partnership (limited partnership) assumes that, in addition to full participants (comrades), it includes one or more contributing participants (commanders). That is, the contributing participants only invest in the activities of the partnership, but do not participate in its management and bear the risk of losses on the partnership's obligations only within the limits of their contribution. If a contributing participant begins to interfere in the activities of such a company, then it must be reorganized into a general partnership.
The authorized capital (share capital) of any partnership is formed at the expense of contributions from all participants. Profits (or losses) are distributed in proportion to the share of participants in the contributed capital, unless otherwise provided by the constituent documents.
Society. A company is a commercial organization established by one or more persons, the authorized capital of which is divided into shares determined by the constituent documents. It follows from this that companies, in contrast to partnerships, involve the pooling of capital. The members of the company are not liable for the obligations of the company and bear the risks of losses associated with its activities, within the limits of the value of the contributions made. A society can be created in the form:
limited liability companies;
additional liability companies;
joint stock company (open joint stock company and closed joint stock company).
Limited Liability Company (LLC). A limited liability company is a company founded by one or several persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.
Thus, the authorized capital of a limited liability company is formed from the contributions of the founders, and their liability is limited to their contribution. Moreover, the number of LLC participants should not exceed 50 people. If the number of participants in the company exceeds this established value, then either the company within a year must either be transformed into an open joint-stock company or a production cooperative, or must reduce the number of participants, or it will be liquidated in court.
The supreme governing body of a company is a meeting of founders, which must be held at least once a year; the organization's charter may also provide for the formation of a board of directors (supervisory board). The management of the company's current activities is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable general meeting members of the company and the board of directors (supervisory board) of the company.
The company's net profit is distributed based on the results of the reporting period in proportion to the contribution of each participant.
The activities of an LLC, in addition to the Civil Code of the Russian Federation, are regulated by the Law "On Limited Liability Companies".
Additional Liability Company (ALC). An additional liability company is a company established by one or several persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; the participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company. In the event of the bankruptcy of one of the participants, his liability for the company's obligations is distributed among the other participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the constituent documents of the company. That is, in a company with additional liability, it is assumed that there is additional liability of its participants for the obligations of the company. Additional liability, as a rule, is a multiple of the contribution (for example, fourfold, eightfold contribution, etc.). The additional responsibility is usually insisted on by the largest depositor or foreign partner.
The additional liability company is governed by the rules of the Civil Code on a limited liability company.
Joint-stock company. A joint-stock company is a company, the authorized capital of which is divided into a certain number of shares; members of a joint-stock company (shareholders) 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. A joint stock company can be created in the form:
open joint stock company (OJSC);
closed joint stock company (CJSC).
A joint-stock company, whose members can alienate their shares without the consent of other shareholders, is recognized open joint stock company... Such a joint-stock company has the right to conduct an open subscription to the shares issued by it and their free sale under the conditions established by law and other legal acts. An open joint stock company is obliged to publish an annual report, balance sheet, and profit and loss statement for the public every year.
Joint-stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, recognized as a closed joint stock company. Such a company does not have the right to conduct an open subscription to the shares issued by it or otherwise offer them for purchase to an unlimited number of persons. The shareholders of a closed joint stock company have the preemptive right to purchase shares sold by other shareholders of this company. The number of participants in a closed joint-stock company should not exceed 50 people, otherwise it must be transformed into an open joint-stock company within a year, and at the end of this period - liquidated in court, if their number does not decrease to the limit established by law. In the cases provided for by the law on joint stock companies, a closed joint stock company may be obliged to publish for general information an annual report, balance sheet, profit and loss statement. Comparative characteristics of JSC and JSC are given in table. 7.
Table 7 - Comparison of OJSC and CJSC by main parameters
| Comparison parameters | Public corporation | Closed joint stock company |
| 1. Circulation of securities | Free circulation on the open securities market. Free alienation (sale) of shares is possible without the consent of other shareholders | The circle of shareholders itself is negotiated even at the stage of establishing the CJSC. Sale of shares is possible only with the consent of all participants (shareholders). At the same time, the shareholders themselves have the preemptive right to purchase these shares. |
| 2. The minimum size of the authorized capital | 1,000 minimum wages | 1 00 minimum wage |
| 3. Maximum number of participants (shareholders) | Not limited | 50 people |
| 4. Possibility of increasing the authorized capital | Since shares are freely traded on the securities market, there is an opportunity for a significant increase in the authorized capital and, therefore, the possibility of increasing the authorized capital is higher | Since the shares will be distributed among the "old" shareholders, the possibility of increasing the authorized capital is limited by the financial capabilities of the existing shareholders |
| 5. Possibility of losing control (controlling stake) | There is a fairly high probability of losing a controlling stake, since the shares can be freely purchased on the open market | The probability of losing a controlling stake is low, since any change in the authorized capital, additional issue of shares, resale of shares is possible only with the consent of all shareholders |
The supreme governing body of a joint-stock company is the general meeting of shareholders, which must be held at least once a year. The meeting of shareholders elects the board of directors (supervisory board) and the audit commission (auditor). In turn, the board of directors elects the general director. Board of directors and general manager are the executive body and are engaged in the day-to-day management of the company, the audit commission controls their activities. Distribution of profits in a joint-stock company is carried out in the form of payment of dividends on shares.
The activities of joint stock companies, in addition to the Civil Code of the Russian Federation, are regulated by the Law “On Joint Stock Companies”. Also in the Civil Code of the Russian Federation, the concepts subsidiary and dependent company... A company is recognized as a subsidiary if another (main) business company (partnership), due to the prevailing participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions made by such a company. In fact, more than 50% of the authorized capital of a subsidiary is formed by another company (or partnership), due to which the latter has the ability to manage such a company. That is, such a company is an independent economic entity, an independent legal entity, but since more than 50% of its authorized capital belongs to another person, the activities of this company will be determined by another person.
In this case, the subsidiary is not liable for the debts of the parent company (partnership). The parent company (partnership), which has the right to issue instructions to the subsidiary company that are obligatory for the latter, shall be liable jointly and severally with the subsidiary company for transactions concluded by the latter in pursuance of such instructions. The parent company (partnership) is deemed to have the right to give the subsidiary the instructions that are binding on the latter only if this right is provided for in the agreement with the subsidiary or in the charter of the subsidiary.
In the event of the insolvency (bankruptcy) of the subsidiary through the fault of the parent company (partnership), the latter bears subsidiary liability for its debts. Shareholders of a subsidiary have the right to demand compensation from the main company (partnership) for losses caused through its fault to the subsidiary. Losses are considered to be caused through the fault of the parent company (partnership) only in the case when the parent company (partnership) has used its right and (or) opportunity in order to perform an action by the subsidiary company, knowing in advance that as a result of this, the subsidiary company will incur losses.
A company is recognized as dependent if the other (dominant) company has more than 20 percent of the voting shares of the first company. Another (predominant) company, having a significant share in the authorized capital, has the opportunity to participate in the management of such a company, or at least his opinion will be taken into account when making decisions. A company that has acquired more than 20 percent of the company's voting shares is obliged to immediately publish information about this in the manner determined by the federal executive body for the securities market and the federal antimonopoly body.
It should be emphasized that subsidiary and dependent companies are not separate organizational and legal forms, but only a reflection of the fact that another company may have a predominant role in the management of such companies. Otherwise, these are ordinary societies.
Unitary enterprise. A unitary enterprise is a commercial organization that is not endowed with ownership of the property assigned to it. The property of such an organization is an indivisible whole and cannot be distributed among shares, deposits, shares, etc., including between employees - this is the principle of unitarity (indivisibility of property). The authorized capital of an enterprise is formed by the owner (state or municipal governing bodies) by transferring it to the enterprise.
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 (which should be reflected in the firm name of the enterprise). The size of the authorized capital of a state municipal enterprise must not be less than 5,000 minimum wages, a municipal unitary enterprise - 1,000 minimum wages. The property is transferred by the owner to a state or municipal unitary enterprise:
on the right of economic management;
on the right of operational management.
A state or municipal unitary enterprise, which owns property on the basis of the right of economic management, owns, uses and disposes of this property within the limits determined in accordance with the Civil Code. So, the right of economic management assumes that the owner of property under economic jurisdiction decides the issues of creating an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (head) of the enterprise, monitors the intended use and safety of the enterprise owned property. The owner has the right to receive part of the profit from the use of the property that is in the economic jurisdiction of the enterprise. An enterprise is not entitled to sell real estate belonging to it on the basis of the right of economic management, lease it, pledge it, make a contribution to the authorized (joint-stock) capital of economic companies and partnerships, or otherwise dispose of this property without the consent of the owner.
On the basis of the right of operational management on the basis of a state or municipal enterprise, state enterprises(that is, a state-owned enterprise is a unitary enterprise created on the basis of operational management). A state-owned enterprise in relation to the property assigned to it exercises, within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property, the right to own, use and dispose of it. The owner of the property assigned to the state-owned enterprise has the right to withdraw excess, unused or misused property and dispose of it at his own discretion.
In general, we can say that the right of operational management presupposes stricter control over the use of property - the property is used in accordance with the goals determined by the owner.
It should also be noted that a unitary enterprise, in addition to the property assigned to it by the right of economic management or by the right of operational management by the owner, can form property at the expense of income from its activities.
In the management structure, one can single out the fact that the head of such an enterprise is appointed by the owner of the property (or a person authorized by him); the head of the enterprise is accountable to the owner. The procedure for distributing the profits of a unitary enterprise is determined by the owner. As a rule, the owner is entitled to receive a portion of the net profit.
The activities of unitary enterprises, in addition to the Civil Code of the Russian Federation, are regulated by the Law “On State and Municipal Unitary Enterprises”.
Production cooperative. A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, sale of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services) based on their personal labor and other participation and consolidation by its members (participants) of property share contributions. Participation in a production cooperative of legal entities is also allowed. The number of members of the cooperative must be at least 5.
The authorized capital of the production capital is formed by means of share contributions. The supreme governing body is the meeting of participants. If the number of participants exceeds 50 people, then a supervisory board can be created. The executive body of management is the board and its chairman.
The profit of a production cooperative is distributed among its members in proportion to their labor participation, unless otherwise provided by the charter. By decision of the general meeting of members of the cooperative, part of the profit of the cooperative may be distributed among its employees.
The activities of production cooperatives, in addition to the Civil Code of the Russian Federation, are regulated by the Law "On Production Cooperatives" and the Law "On Agricultural Cooperation".
Creation of a legal entity or division Semenikhin Vitaly Viktorovich
Differences in the forms of commercial legal entities
As a result of the implementation of fundamental transformations in the political and economic life Of the Russian Federation, as well as as a result of the constant, every minute dynamics of development and improvement of the legal system in the current democratic state, significant changes have occurred and continue to occur in property relations and organizational and legal forms of commercial activity.
Characterizing the features of the legal status of certain types of legal entities, Russian civil law uses concepts such as:
- type of legal entity;
- the form of creating a legal entity;
- organizational and legal form of a legal entity.
Analysis of the norms of Chapter 4 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) "Legal entities" allows us to conclude that these three concepts are used as synonyms. Despite the fact that the content and scope of these terms are not officially defined, in our opinion, it is possible, when considering the issue of certain types of legal entities, to analyze the features of their organizational and legal forms. In the scientific literature, the organizational and legal form is understood as such a type of legal entity, which differs from another type in the way of creation, the volume of legal capacity, the management procedure, the nature and content of the rights and obligations of the founders (participants) in relation to each other and the legal entity.
Article 50 of the Civil Code of the Russian Federation distinguishes all legal entities into commercial and non-commercial. There are many classifications of legal entities for various reasons, but this division is well-known and generally accepted, even to some extent fundamental. According to clause 1 of Article 50 of the Civil Code of the Russian Federation, legal entities can be organizations pursuing profit as the main goal of their activities (commercial organizations) or not having profit as such a goal and not distributing the received profit among the participants (non-profit organizations). Main criterion delimitation in this case is the main goal of the activity and neither the form of ownership, nor the organizational-legal form, nor other circumstances matter at all.
In accordance with paragraph 2 of Article 50 of the Civil Code of the Russian Federation, legal entities that are commercial organizations can be created in the form:
- business partnerships and companies;
- production cooperatives;
- state and municipal unitary enterprises.
Let us dwell in more detail on the above-mentioned forms of commercial legal entities and analyze the main points that should be paid attention to when comparative characteristics these forms of commercial organizations.
In accordance with the Civil Code of the Russian Federation, there are two types of business partnerships: full partnership and limited partnership.
The participants in the partnership as a whole are obliged to directly participate in its activities, as a result of which this activity is the combined actions of the participants in the partnership, they actually conduct independent entrepreneurial activities on behalf of the partnership. And, in part, therefore, only individual entrepreneurs can be participants in full partnerships, since only these persons are entitled to engage in entrepreneurial activity. In accordance with paragraph 1 of Article 69 of the Civil Code of the Russian Federation, a partnership is fully recognized, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are responsible for its obligations with property belonging to them. Full partnership status is most suitable for businesses with a small number of members. The minimum number of participants is two, the maximum is not limited.
A limited partnership is, according to paragraph 1 of Article 82 of the Civil Code of the Russian Federation, such a partnership, which includes two types of participants:
- one or more general partners who carry out entrepreneurial activities on behalf of the partnership and are responsible for the obligations of the partnership with all their property (as in a full partnership);
- and one or more investors who do not participate in the management of the partnership and bear the risk of losses associated with the activities of the partnership only within the amount of their contributions.
A limited partnership is also called a limited partnership, and contributors are called limited partners.
As in a full partnership, in a limited partnership, strict control over changes in the composition of general partners is exercised. A limited partnership, like a general partnership, can be liquidated by decision of its participants or by a court decision. In addition, a limited partnership is subject to liquidation upon retirement of all contributors who participated in it.
The main disadvantage of the partnership appears to be the responsibility of its participants. Due to these circumstances, it is preferable to create partnerships in areas of entrepreneurial activity, by their nature associated with low risk, mainly business partnerships are a form for small businesses.
A voluntary association of citizens on the basis of membership for joint production or other economic activity is called a production cooperative or artel. The production cooperative operates in accordance with the legislation, including the Federal Law of May 8, 1996 No. 41-FZ "On Production Cooperatives" and its constituent document, which for the cooperative is the charter approved by all members of the cooperative. Like economic partnerships, a production cooperative is an association of persons and their property share contributions, and involves the personal participation of its members in the activities of the cooperative. Unlike business partnerships with simple and flexible scheme management, direct management of the cooperative is entrusted to its executive bodies - the board and its chairman. The supreme governing body of the cooperative is the general meeting of its members, whose exclusive competence includes the solution of the most basic and significant organizational issues.
A production cooperative can, like a business partnership, be liquidated by the decision of its members or by a court decision.
The most popular today are commercial organizations such as business societies. In practice, they are often confused with business partnerships. Meanwhile, an inalienable feature of any partnership is the direct participation in its activities of the persons who established the partnership, while the property of the founders (their capital) is being united in the society. There may not be any consolidation of the property of the founders (we are not talking about the contributed capital, but other property). Along with this, the members of the company, in parallel with the pooling of their capitals, may or may not take part in its activities.
Business companies are classified into limited liability companies, additional liability companies and joint stock companies. Their activities are regulated, among other things, by special laws: Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" and Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies".
Commercial organizations founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents, are called limited liability companies (LLC) or additional liability companies (ALC). What is fundamental difference, you ask? And the difference is just obvious! The difference lies in the scope of responsibility of the participants in these business entities. Members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions. And the participants of the company with additional liability jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company. In addition, in the event of the bankruptcy of one of the participants, his liability for the obligations of the company of such an organizational and legal form is distributed among the other participants in proportion to their contributions, unless a different procedure is established by the constituent documents. That is, the founders of a limited liability company are not liable, unlike the participants in a company with additional liability for its obligations - their risk is limited only by the loss of property contributed as a contribution to the authorized capital of such a company.
However, please note that the amount of liability of participants in a company with additional liability is still limited: it does not apply to all of their property, which is typical for general partners, but only part of it - the same multiple for all participants to the amount of their contributions. From this point of view, this society occupies, as it were, an intermediate position between societies and partnerships.
It makes sense to create limited liability companies to carry out activities that involve significant risk. Among the advantages of this form of commercial organizations for those who create it are:
- the possibility of members of the society to take direct part in its entrepreneurial activities;
- a limited number of participants and the ability to control changes in their composition;
- lack of responsibility for the company's obligations (as a general rule) and risk limited by the limits of the assumed share of participation in the capital.
Joint-stock companies are companies whose authorized capital is divided into a certain number of shares. The members of a joint stock company are referred to as shareholders. They are not responsible for the company's obligations and bear the risk of losses associated with its activities, within the value of the shares they own.
Depending on the procedure for the distribution of shares and the circle of persons among whom this distribution takes place, there are two types of joint stock companies:
- open joint stock company (OJSC);
- closed joint stock company (CJSC).
Joint-stock companies are recognized as open companies whose members can alienate their shares without the consent of other shareholders (clause 1 of Article 97 of the Civil Code of the Russian Federation; clause 2 of Article 7 of Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies"). Such a joint-stock company has the right to conduct an open subscription to the shares issued by it and their free sale under the conditions established by law and other legal acts.
Closed are joint stock companies whose shares are distributed only among the founders or other predetermined circle of persons (clause 2 of Article 97 of the Civil Code of the Russian Federation; clause 3 of Article 7 of Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies"). Such a company does not have the right to conduct an open subscription to the shares issued by it or otherwise offer them for purchase to an unlimited number of persons.
We also draw your attention to the fact that the legislator determines the maximum number of participants included in a joint-stock company closed type a. Clause 3 of Article 7 of Federal Law No. 208-FZ of December 26, 1995 “On Joint Stock Companies” states that the number of shareholders of a closed company should not exceed fifty. If the number of shareholders of a closed company exceeds the established limit, the said company must be transformed into an open company within one year. If the number of its shareholders does not decrease to the limit established by law, the company is subject to liquidation in court. The number of shareholders of an open joint stock company is not limited.
For conducting entrepreneurial activities in the field of small and medium-sized businesses, the most preferred organizational and legal forms of commercial organizations and enterprises are a closed joint-stock company and a limited liability company.
These forms of business entities have a lot in common, including:
- the same procedure and conditions for conducting economic and financial activities and taxation;
- the same amount of the minimum authorized capital (not less than one hundred times the minimum wage established on the date of submission of documents for state registration of the company) and the procedure for its formation;
- the same restrictions on the number of founders (from one to fifty persons, both legal and physical).
But there are also fundamental differences that should be taken into account when choosing between these two organizational and legal forms. We are talking about greater protection of the property interests of a member of a limited liability company in comparison with shareholders of a closed joint stock company. When leaving a limited liability company, its participant is paid the actual value of his share in the property (determined on the basis of financial statements) in cash or, with the consent of the withdrawing participant, he is given property of the same value in kind. In a closed joint-stock company, property and assets can be distributed among shareholders only in the event of its liquidation, and the outgoing shareholder has the right to sell his shares at market value, which, despite the significant amount of the company's net assets, can be very small. On the other hand, these circumstances make the closed joint-stock company itself as a whole, in comparison with a limited liability company, more secure, due to the lesser likelihood and possibility of “taking away” the company's property by the outgoing shareholders “piece by piece”.
From the point of view of the prevailing psychological and everyday perception of a limited liability company and a closed joint stock company as subjects market relations, a closed joint-stock company is considered an enterprise with a higher status and is perceived with greater respect and trust, both by business partners and, often, by officials of various levels.
An open joint stock company has practically the same differences from a limited liability company as a closed joint stock company. If we compare the types of joint stock companies with each other, then we can say that an open joint stock company is perceived as an organization of a higher business status than a closed joint stock company.
There are also specific forms of commercial activity that are applicable only in the public sector of the economy - state and municipal unitary enterprises. The legal status of this organizational and legal form of commercial legal entities is regulated by Federal law dated November 14, 2002 No. 161-FZ "On State and Municipal Unitary Enterprises" (hereinafter - Law No. 161-FZ).
Unitary enterprises are commercial organizations that are not endowed with the ownership right to the property assigned to them by the owner. The property of a unitary enterprise is indivisible and cannot be distributed according to contributions (shares, shares), including among the employees of the enterprise (paragraph 1 of Article 113 of the Civil Code of the Russian Federation).
Note that only state and municipal enterprises can be created in the form of unitary enterprises.
According to paragraph 2 of Article 113 of the Civil Code of the Russian Federation, the property of state or municipal unitary enterprises is in state or municipal ownership, respectively, and belongs to such enterprises on the basis of the right of economic management or operational management.
The following types of state and municipal unitary enterprises can be conditionally distinguished:
- a unitary enterprise based on the right of economic management;
- a unitary enterprise based on the right of operational management, called a state enterprise.
In modern civil law, unitary enterprises have a reputation for “ transitional form”, They close the list of commercial organizations in the Civil Code of the Russian Federation, and in the future, the term“ enterprise ”, according to forecasts, should finally move to the section of the Civil Code of the Russian Federation on objects of civil rights, namely to Article 132 of the Civil Code of the Russian Federation.
Unitary enterprises remain today the only type of commercial organization with limited (targeted) legal capacity. Such enterprises cannot independently dispose of real estate, as well as carry out many other transactions. As you know, "no one can transfer more rights to another than he himself has." But the activities of state-owned enterprises distort the classical postulates and constructions in civil law.
Foreign legislation does not know the analogue of the right of economic management. In some countries, state-owned enterprises act as owners. In common law countries, the theory of trust (trust) is recognized, but our legislation does not know such a possibility of splitting property rights. In general, state policy is now aimed at narrowing the independence of unitary enterprises. The ultimate goal is to exclude the right of economic management from the domestic legal order and to secure non-privatized state property on the basis of operational management.
Also, at present, there is a widespread point of view according to which some unitary enterprises, namely those based on the right of operational management, that is, state-owned factories, for example, should be recognized as non-profit organizations in accordance with the goals of their creation. It seems that there is still a rational grain in this position, apparently, it is advisable to differentiate legal entities not according to the goals of their activities, but according to the goals of their creation. After all, making a profit is not the main goal of the activities of state-owned enterprises, and, moreover, the existence of some of them is initially assumed to be unprofitable. So, according to paragraph 4 of Article 8 of Law No. 161-FZ, the purpose of creating a state-owned enterprise may be, for example, the implementation of subsidized activities and the conduct of unprofitable industries. In general, the main task of such enterprises is to meet government needs.
In conclusion, we note that commercial organizations of any organizational and legal form have civil rights that correspond to the objectives of the activities provided for in their constituent documents, and bear related obligations. Commercial organizations can carry out any types of activities that are not directly prohibited by law, they are endowed with general legal capacity, and it does not matter whether these types of activities are enshrined in the organization's constituent documents or not. Current Russian legislation establishes the principle that legal entities can be created only in any of the organizational and legal forms provided for by law. For commercial organizations, an exhaustive list of such forms is contained in the Civil Code of the Russian Federation. The founders of a commercial legal entity must "clothe" their incipient "brainchild" in one of the forms provided for by law, and they are not entitled to come up with something that is not provided for by law. This principle of the so-called “closed circle” of legal entities is directly opposite to the principle of an unlimited range of rights arising from the principle of freedom of contract, and is of great importance. This circumstance makes it possible to exclude the emergence of unreliable commercial organizations that do not have constructive stability, and also provides the possibility of state control over the economic turnover.
Any enterprise, as a legal entity, in accordance with the Civil Code of the Russian Federation, regardless of the organizational and legal form, has the same rights as other enterprises. The differences, and very significant ones, lie in the rights of the founders (participants, shareholders) of such enterprises. It is this set of rights that seems to be decisive. The choice of the form of a commercial legal entity directly depends on the extent to which legislative regulation corresponds to the preferences of the founders, and, of course, on their personal likes, desires and aspirations. At the same time, one should not forget that none of the organizational and legal forms is something frozen, given once and for all. Under certain conditions and according to certain rules, each of them is capable of transforming into other forms.
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The legal capacity of legal entities, in contrast to citizens, even within the framework of one organizational and legal form, is different. The legal capacity of a legal entity arises from the moment of its state registration. In addition, for certain types of activities determined by law, legal entities need to obtain a special permit - a license.
According to the current legislation, all legal entities, including entrepreneurial organizations, are divided into two large groups.
The first includes those entrepreneurial organizations that have general legal capacity. They may have civil rights and carry civil obligations necessary to carry out any type of entrepreneurial activity not prohibited by law. The circle of such legal entities includes commercial organizations (with the exceptions established by law. Making a profit for them is the main goal of their activities, they are professionally engaged in entrepreneurship.
Full partnership
A partnership is recognized as a full partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are responsible for its obligations, property belonging to them. The management of the activities of a full partnership is carried out by the general agreement of all participants. As a rule, each participant in a general partnership has one vote. The participants jointly and severally bear subsidiary liability with their property for the obligations of the partnership.
Full partnerships are predominantly characteristic of Agriculture and service industries; as a rule, they are small in size enterprises, the activities of which are quite easy to control.
Fellowship on Faith
A limited partnership (limited partnership) is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are responsible for entrepreneurial activities on behalf of the partnership and are responsible for its obligations with their property (general partners). There is one or several contributors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the amount of their contributions and do not take part in the partnership's entrepreneurial activities.
Since this legal form allows you to attract significant financial resources through an almost unlimited number of limited partners, it is characteristic of more large enterprises.
Limited Liability Company (LLC)
Such is a company established by one or more persons, the authorized capital of which is divided into shares determined by the constituent documents; LLC participants are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the size (value) of their contributions. The authorized capital of an LLC is made up of the value of the contributions of its members. LLC is not obligated to public liability. This legal form is most common among small and medium-sized enterprises.
Additional liability company
A company whose members jointly and severally bear subsidiary liability for the company's obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company itself. The peculiarities of the responsibility of the ALC participants and determined the presence of this organizational and legal form of commercial organizations
Joint Stock Company (JSC)
A company is recognized as such, the authorized capital of which is divided into a certain number of shares; JSC participants (shareholders) are not liable for its obligations and bear the risk of losses associated with the company's activities, within the value of their shares.
A joint-stock company, whose members can alienate their shares without the consent of other shareholders, is recognized as open. Such JSC has the right to subscribe to the shares issued by it and their free sale under the conditions established by law. An open joint-stock company is obliged to publish an annual report, balance sheet, and profit and loss account for the public every year.
A joint-stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, is recognized as closed. The constituent document of the JSC is its charter. The authorized capital of a JSC is made up of the par value of the company's shares acquired by shareholders. The supreme governing body of the JSC is the general meeting of shareholders. The advantages of the joint-stock form of organization of enterprises are: the ability to mobilize large financial resources; the ability to quickly transfer funds from one industry to another; the right to freely transfer and sell shares, ensuring the existence of companies, regardless of changes in the composition of shareholders; limited liability of shareholders; separation of ownership and management functions. The legal form of a joint stock company is preferable for large enterprises where there is a great need for financial resources.
Production cooperatives
A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production activities based on their personal labor and other participation, the association of property shares by its members (participants). In Russia they were known as artel partnerships.
A production cooperative is a commercial organization. The constituent document of a production cooperative is its charter, approved by the general meeting of its members. The number of members of the cooperative must not be less than five. The property owned by the PC is divided into shares of its members in accordance with the charter of the cooperative. The cooperative is not entitled to issue shares. A member of the cooperative has one vote when making decisions by the general meeting.
Subsidiaries and dependent business entities constitute a special type of commercial organizations. A business company is recognized as a subsidiary if another (main) business company or partnership, due to the prevailing participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions made by such a company. A business company is recognized as dependent if the other (dominant, participating) company has more than 20% of the voting shares of the joint-stock company or 20% of the authorized capital of the limited liability company.
The second group includes legal entities - holders of special legal capacity. The essence of special legal capacity is that its holders can only have those civil rights that correspond to the objectives of the activity provided for in their constituent documents, and bear the obligations associated with this activity. This group consists of:
a) commercial organizations that, as an exception to the general rule, do not have general legal capacity (state and municipal unitary enterprises and other types of organizations provided for by law, for example, banks, insurance organizations). Unitary enterprises, as well as other commercial organizations, in respect of which special legal capacity is provided, are not entitled to conclude transactions that contradict the goals and subject matter of their activities, determined by law or other legal acts. Such transactions are void.
The state and other public law entities as subjects of commercial law have legal capacity and legal capacity. Moreover, the legal capacity of these subjects in the field of commercial law as part of civil law is special
The state and administrative-territorial entities should be classified as special, different from citizens and from legal entities, participants (subjects) of commercial legal relations.
State and municipal unitary enterprises
A unitary enterprise is a commercial organization that is not endowed with ownership of the property assigned to it by the owner.
Some enterprises (most of them) own property on the basis of the right of economic management, while others - on the basis of operational management. The legislation establishes the types of activities that can be carried out exclusively by state-owned enterprises (production of weapons and ammunition, narcotic and nuclear substances, processing of precious metals and radioactive elements, etc.).
b) non-profit organizations (making a profit is not their main goal, and the received profit is not divided among the members of the organization). These include: consumer cooperatives (they are the only type of non-profit organization in which income received from entrepreneurial activity is distributed among its members); public or religious organizations (associations) financed by the owner of the institution; charitable and other foundations; other organizational and legal forms provided by law. In particular, the Federal Law "On Non-Commercial Organizations" dated January 12, 1996. two such forms have been introduced: a non-profit partnership and an autonomous non-profit organization.
Non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, meet the spiritual and other intangible needs of citizens, protect the rights, legitimate interests of citizens and organizations, resolve disputes and conflicts, the provision of legal assistance, as well as for other purposes aimed at achieving public goods. It should be emphasized: non-profit organizations can carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created, and is consistent with these goals. Such activities are recognized as the profitable production of goods and services that meet the goals of creating a non-profit organization, as well as the purchase and sale of securities, property and non-property rights, participation in business companies and participation in limited partnerships as a contributor. A non-profit organization keeps records of income and expenses from entrepreneurial activities.
Organizational and legal forms of legal entities
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Legal entities |
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Commercial organizations |
Non-profit organizations |
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Business partnerships and societies |
Consumer cooperatives |
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Full partnerships |
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Faith partnerships |
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Limited liability companies |
Public and religious organizations |
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Additional liability companies |
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Open and closed joint stock companies | |
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Subsidiaries and dependent companies |
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Production cooperatives |
Institutions |
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State and municipal, unitary enterprises |
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Enterprises based on the right of operational management |
Associations of legal entities (associations and unions) |
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Enterprises based on the right of economic management |
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4.4.2. Organizational and legal forms of legal entities
Some features of specific organizational and legal forms of organizations, their formation, functioning and management are as follows.
Full partnership – this is a partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are responsible for its obligations with property belonging to them.
A person can be a member of only one full partnership.
A general partnership is created and operates on the basis of a memorandum of association, which is signed by all of its participants. The founding agreement of a full partnership must contain: the name of the partnership; its location; the procedure for managing activities; conditions on the size and composition of the joint stock capital of the partnership; on the size and procedure for changing the shares of each of the participants in the contributed capital; on the amount, composition and procedure for making contributions by them; on the liability of participants for violation of obligations to make contributions.
The management of the activities of a full partnership is carried out by the general agreement of all participants. The founding agreement of the partnership may provide for cases when a decision is made by a majority vote of the participants. Each participant in a full partnership has one vote, unless the memorandum of association provides for a different procedure for determining the number of votes of its participants.
Each participant in a full partnership shall have the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly or that the conduct of business is entrusted to separate participants. In the joint conduct of the affairs of a partnership by its participants, the consent of all participants in the partnership is required to complete each transaction.
Fellowship on Faith (limited partnership) – this is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are responsible for the obligations of the partnership with their property (general partners), there are one or more contributing participants (limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits the amounts of their contributions and do not take part in the implementation of the partnership of entrepreneurial activity.
The position of general partners participating in a limited partnership and their responsibility for the partnership's obligations are determined by the rules of this Code on participants in a full partnership. A person can be a general partner in only one limited partnership. If the name of a contributor is included in the firm name of a limited partnership, such contributor becomes a full partner.
A limited partnership is created and operates on the basis of the memorandum of association. The Memorandum of Association is signed by all general partners. The founding agreement of a limited partnership must contain: the name of the partnership; its location; the procedure for managing activities; conditions on the size and composition of the joint stock capital of the partnership; on the size and procedure for changing the shares of each of the general partners in the contributed capital; on the size, composition, timing and procedure for making contributions by them, their responsibility for violation of obligations to make contributions; on the aggregate amount of deposits made by depositors.
The management of a limited partnership is carried out by general partners. The procedure for the management and conduct of the affairs of such a partnership by its general partners is established by them in accordance with the rules of the Civil Code of the Russian Federation on a full partnership. Investors are not entitled to participate in the management and conduct of the partnership's affairs, to act on its behalf, except by power of attorney. They do not have the right to challenge the actions of the general partners in the management and conduct of the affairs of the partnership.
Limited liability company – this is a company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents. Members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.
The members of the company who have not made their contributions in full are jointly and severally liable for its obligations within the value of the unpaid part of the contribution of each of the participants.
The constituent documents of the company are the constituent agreement signed by its founders and the charter approved by them. If the company is founded by one person, its constituent document is the charter.
The constituent documents of a company must contain: the name of the company; its location; the procedure for managing activities; conditions on the amount of the authorized capital of the company; on the size of the shares of each of the participants; on the size, composition, timing and procedure for making contributions by them, on the liability of participants for violation of obligations to make contributions; on the composition and competence of the management bodies of the company and the procedure for their decision-making, including on issues on which decisions are taken unanimously or by a qualified majority vote.
The supreme body of the company is the general meeting of its members. An executive body is created in the company to carry out the day-to-day management of its activities and is accountable to the general meeting.
The exclusive competence of the general meeting of members of the company includes:
changes in the charter and the size of its authorized capital;
formation of executive bodies of the company and early termination of their powers;
approval of annual reports and balance sheets of the company and distribution of its profits and losses;
decision on reorganization or liquidation of the company;
election of the auditing commission (auditor) of the company.
Issues attributed to the exclusive competence of the general meeting of the company's participants cannot be transferred to them for decision by the executive body of the company.
To check and confirm the correctness of the company's annual financial statements, it has the right to annually engage a professional auditor who is not associated with property interests with the company or its members (external audit).
Additional liability company – this is a company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents. The participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same amount for all, a multiple of the value of their contributions, determined by the constituent documents of the company. In the event of the bankruptcy of one of the participants, his liability for the company's obligations is distributed among the other participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the company's documents.
Joint-stock company – it is a company, the authorized capital of which is divided into a certain number of shares. The participants of the joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of their shares.
Shareholders who have not fully paid for the shares are jointly and severally liable for the obligations of the joint-stock company within the unpaid part of the value of their shares.
The firm name of a company must contain its name and an indication that the company is a joint stock company.
A joint stock company, whose members can alienate their shares without the consent of other shareholders, is recognized as an open joint stock company. Such a company has the right to conduct an open subscription to the shares issued by it and their free sale under the conditions established by law and other legal acts.
An open joint-stock company is obliged to publish an annual report, balance sheet, and profit and loss account for the public every year.
A joint-stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, is recognized as closed. It does not have the right to conduct an open subscription to the shares issued by it or otherwise offer them for purchase to an unlimited number of persons. The shareholders of a closed joint stock company have the preemptive right to purchase shares sold by other shareholders of this company. The number of participants in a closed joint stock company must not exceed the number established by the law on joint stock companies, otherwise it must be transformed into an open joint stock company within a year, and after this period – liquidation in court.
The founders of a joint-stock company conclude an agreement between themselves that determines the procedure for their joint activities to create a company, the size of the authorized capital, the categories of issued shares and the procedure for their placement, as well as other conditions provided for by the law on joint-stock companies.
The constituent document of a joint stock company is its charter, approved by the founders. The charter of a joint-stock company must contain: the name of the company, its location; the procedure for managing activities; conditions on the categories of shares issued by the company, their par value and quantity, on the amount of the authorized capital of the company; on the rights of shareholders; on the composition and competence of the management bodies of the company and the procedure for their decision-making, including on issues on which decisions are taken unanimously or by a qualified majority vote. The charter of a joint stock company must also contain other information provided for by the law on joint stock companies.
The authorized capital of a joint stock company is made up of the par value of shares acquired by shareholders.
Public subscription to the shares of a joint-stock company is not allowed until the full payment of the authorized capital. When founding a joint stock company, all of its shares must be distributed among the founders.
The supreme governing body of a joint-stock company is the general meeting of its shareholders.
The exclusive competence of the general meeting of shareholders includes:
changes in the charter of the company, including changes in the size of its authorized capital;
election of members of the board of directors (supervisory board) and the audit commission (auditor) of the company and early termination of their powers;
the formation of the executive bodies of the company and the early termination of their powers, if the charter of the company does not refer the resolution of these issues to the competence of the board of directors;
approval of annual reports, balance sheets, profit and loss accounts of the company and distribution of its profits and losses;
decision on reorganization or liquidation of the company.
In a company with more than fifty shareholders, a board of directors (supervisory board) is created. In the event of its creation, the charter of the company must define its exclusive competence.
The executive body of a company may be collegial (board, directorate) and (or) sole (director, general director). He carries out the day-to-day management of the company's activities and is accountable to the board of directors (supervisory board) and the general meeting of shareholders. The competence of the executive body of the company includes the solution of all issues that do not constitute the exclusive competence of other management bodies of the company, determined by law or the charter of the company.
By decision of the general meeting of shareholders, the powers of the executive body of the company may be transferred by agreement to another commercial organization or to an individual entrepreneur (manager).
The competence of the governing bodies of a joint-stock company, as well as the procedure for making decisions and speaking on behalf of the company, are determined by the law on joint-stock companies and the charter of the company.
At the request of shareholders, whose aggregate share in the authorized capital is ten percent or more, an audit of the company's activities must be carried out at any time.
Subsidiaries and dependent companies . A business company is recognized as a subsidiary if another (main) business company or partnership, due to the prevailing participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions made by such a company.
A subsidiary company is not liable for the debts of the parent company (partnership).
The parent company (partnership), which has the right to give instructions to a subsidiary, including under an agreement with it, obligatory instructions for it, shall be liable jointly and severally with the subsidiary for transactions concluded by the latter in pursuance of such instructions.
A business company is recognized as dependent if the other (dominant, participating) company has more than twenty percent of the voting shares of the joint-stock company or twenty percent of the authorized capital of the limited liability company.
Production cooperative (artel) – it is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, sale of industrial, agricultural or other products, performance of work, trade, consumer services, provision of other services) based on their personal labor and other participation and association its members (participants) property share contributions. The law and the constituent documents of a production cooperative may provide for the participation of legal entities in its activities. A production cooperative is a commercial organization.
The founding document of the cooperative is its charter, approved by the general meeting of its members.
The charter of the cooperative must contain: its name, its location, the procedure for managing its activities, conditions on the size of the share contributions of the members of the cooperative; on the composition and procedure for making shares by members of the cooperative and their responsibility for violation of obligations to make shares; on the nature and procedure of labor participation of its members in the activities of the cooperative and their responsibility for violation of the obligation for personal labor participation; on the procedure for the distribution of profits and losses of the cooperative; on the size and conditions of subsidiary liability of its members for the debts of the cooperative; on the composition and competence of the management bodies of the cooperative and the procedure for their decision-making.
The number of members of the cooperative must not be less than five.
The supreme governing body of the cooperative is the general meeting of its members.
In a cooperative with more than fifty members, a supervisory board may be created, which monitors the activities of executive cooperative bodies.
The executive bodies of the cooperative are the board and (or) its chairman. They carry out the day-to-day management of the cooperative's activities and are accountable to the supervisory board and the general meeting of cooperative members.
Only members of the cooperative can be members of the supervisory board and board of the cooperative, as well as the chairman of the cooperative. A member of a cooperative cannot simultaneously be a member of the supervisory board and a member of the board or chairman of the cooperative.
The competence of the governing bodies of the cooperative and the procedure for making decisions by them are determined by the law and the charter of the cooperative.
The exclusive competence of the general meeting of members of the cooperative includes:
change of the charter;
the formation of the supervisory board and the termination of the powers of its members, as well as the formation and termination of the powers of the executive bodies of the cooperative, if this right has not been transferred to its supervisory board according to the charter;
admission and exclusion of members of the cooperative;
approval of annual reports and balance sheets of the cooperative and the distribution of its profits and losses;
decision to reorganize and liquidate the cooperative.
The law on production cooperatives and the charter of a cooperative may also include decisions on other issues within the exclusive competence of the general meeting.
Issues attributed to the exclusive competence of the general meeting or the supervisory board of the cooperative cannot be transferred by them to the decision of the executive bodies of the cooperative.
State and municipal unitary enterprises. A unitary enterprise is a commercial organization that is not endowed with the ownership right to the property assigned to it by the owner, which is indivisible and cannot be distributed by contributions (shares, shares), including among the employees of the enterprise.
The charter of a unitary enterprise must contain: the name of the enterprise, its location, the procedure for managing the activities, information about the subject and purposes of the enterprise, as well as the size of the authorized capital of the enterprise, the procedure and sources of its formation, with the exception of state-owned 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 basis of the right of economic management or operational management.
The body of a unitary enterprise is the head, who is appointed by the owner or a body authorized by him and is accountable to them.
A unitary enterprise is responsible for its obligations with all property belonging to it and is not responsible for the obligations of the owner of its property.
A unitary enterprise based on the right of economic management is created by a decision of an authorized state body or local self-government body.
The constituent document of such an enterprise is its charter, approved by an authorized state body or local self-government body.
The owner of the property of this enterprise is not liable for the obligations of the enterprise.
A unitary enterprise based on the right of operational management (state enterprise) is created on the basis of state or municipal property.
The constituent document of a state-owned enterprise is its charter, approved by an authorized state body or local self-government body.
The owner of the property of a state-owned enterprise bears subsidiary liability for the obligations of such an enterprise if its property is insufficient.
Consumer cooperative – This is a voluntary association of citizens and legal entities on the basis of membership in order to satisfy the material and other needs of the participants, carried out by combining property shares by its members.
The charter of a consumer cooperative must contain: its name, its location, the procedure for managing activities, conditions on the size of the share contributions of the members of the cooperative; on the composition and procedure for making shares by members of the cooperative and on their responsibility for violation of the obligation to make shares; on the composition and competence of the governing bodies of the cooperative and the procedure for their decision-making, including on issues, decisions on which are taken unanimously or by a qualified majority; on the procedure for covering the losses incurred by the members of the cooperative.
The members of the cooperative jointly bear subsidiary liability for its obligations within the unpaid part of the additional contribution of each of the members of the cooperative.
The income received by the consumer cooperative from entrepreneurial activity is distributed among its members.
Public and religious organizations (associations) - These are voluntary associations of citizens, united on the basis of their community of interests to meet spiritual or other non-material needs.
Public and religious organizations are non-profit. They have the right to carry out entrepreneurial activities only to achieve the goals for which they were created, and corresponding to these goals.
The participants (members) of these organizations do not retain the rights to the property transferred by them to these organizations, including membership fees. They are not responsible for the obligations of these organizations, and the organizations are not responsible for the obligations of their members.
Fund – is a non-profit non-profit organization established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational or other socially useful goals.
The property transferred to the foundation by its founders (founder) is the property of the foundation. The founders are not responsible for the obligations of the foundation they have created, and the foundation is not responsible for the obligations of its founders.
The foundation has the right to engage in entrepreneurial activities necessary to achieve socially useful goals for which it was created, and corresponding to these goals. In order to carry out entrepreneurial activities, foundations have the right to create economic companies or participate in them.
The procedure for managing the foundation and the procedure for the formation of its bodies are determined by its charter, approved by the founders.
The charter of a foundation must contain: the name of the foundation, information about its purpose; instructions on the bodies of the foundation, including the board of trustees supervising the activities of the foundation; on the procedure for appointing officials of the fund and their release, on the location of the fund, on the fate of the fund's property in the event of its liquidation.
Institution – is an organization created by the owner to carry out managerial, socio-cultural or other functions of a non-profit nature and financed by him in whole or in part.
The institution is responsible for its obligations with the funds at its disposal. If they are insufficient, the owner of the respective property shall bear subsidiary responsibility for his obligations.
Features of the legal status of certain types of state and other institutions are determined by law and other legal acts.