Commercial organizations as subjects of business law.
Business partnerships and business entities are commercial organizations with share capital divided by the founder. The Civil Code of the Russian Federation 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 full partnershipall its participants are engaged in entrepreneurial activities on behalf of the partnership and bear full joint and several liability for its obligations with their property. A partnership of faithone is recognized in which, along with the general partners, there are contributors (limited partners) who do not take part in the entrepreneurial activities of the partnership and bear limited financial liability within the limits of their contributions. Business companies can be created in Russia in the form of limited and additional liability companies, as well as joint stock companies. Limited liability company- is a company, the authorized capital of which is divided into shares of participants who bear material responsibility only within the limits of the value of their contributions. Additional liability company. Its features are: joint and several subsidiary liability of the participants for the obligations of the ALC with their property in the same for all multiples of 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. Joint-stock company- is a company, the authorized capital of which 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 only within the value of the shares they own. Joint-stock companies are subdivided into open and closed. PJSC members (until 2015, OJSC) may 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 CJSC, 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.
Production cooperative is a voluntary association of citizens on the basis of membership for joint production or other economic activity based on their personal labor or other participation and the unification of property shares by its members (participants). The peculiarities of the PrC are the priority of production activities and the personal labor participation of its members, the division of the property of the PrC into shares of its members, along with the possible formation of indivisible funds of the PrC, the distribution of profits between its members in accordance with their labor participation, it is extremely important that the cooperative agrees to transfer of a share to a non-member of the PRC, the presence of quantitative restrictions on the minimum number of members (at least 5), etc.
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To state and municipal unitary enterprisesinclude 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:
1) based on the right of economic management;
2) based on the right of operational management (state enterprises);
Property rights of a unitary enterprise and owner
The merits of business partnershipsare the pooling of organizational efforts, as well as material and financial resources of the participants, complementarity and interchangeability of participants in the implementation of entrepreneurial activities, collectivism in management, a higher probability of obtaining loans. To the disadvantageshould include a strong dependence on partners and their ability to carry out entrepreneurial activities, solidary and full financial responsibility. A number of similar characteristics are inherent in production cooperatives (artels). Limited liability companies and additional liability companiesare devoid of some of the disadvantages inherent in partnerships. The principle of limited liability allows you to involve additional capital and entities in entrepreneurship. However, this involvement is not unlimited.
Open joint stock companiesthey are distinguished by wide opportunities for raising funds through the sale of shares to numerous buyers, better management, and limited liability of participants. At the same time, they also have disadvantages, among which we will name the possibility of bureaucratization of management, speculative operations and abuse, less high operational efficiency, strong dependence on the stock market conjuncture.
The merits of state and municipal unitary enterprisesfocus on the implementation of socially significant tasks, a higher degree of security, the main disadvantage - limited economic independence (especially for state-owned enterprises).
11. Structural divisions of organizations as subjects of business law.
A special place among the subjects of PP is occupied by subdivisions of organizations - internal (shop, department) and external (representative offices and branches). They operate on the basis of local legal acts. These relationships are both horizontal (between divisions) and vertical (between divisions and the organization as a whole).
Internal subdivisions can only participate in relationships with other subdivisions or the organization as a whole, operate within the organization, have organizational and property isolation.
Detached business units are involved not only in corporate relationships, but also in relationships with other organizations. From T.Z. Of the Civil Code of the Russian Federation, representative offices and branches are not legal entities.
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persons on behalf of the legal entity
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persons act as heads of representative offices and branches on the basis of his power of attorney. For the branch and representative office, a regulation must be approved that provides for the main rights and obligations of this unit.
Representative offices and branches are endowed with the property that created them by the legal entity. This property is shown on a separate balance sheet.
In relations of a public law nature, in some cases, branches can act on their own behalf, for example, in relations with the MS authorities related to the determination of opening hours and other similar conditions of the branch.
Commercial organizations are organizations that pursue profit making as the main goal of their activities.
For commercial organizations, the Civil Code of the Russian Federation gives a complete closed list of types of organizations, i.e. commercial organizations of other kinds cannot be created.
The legal status of commercial organizations is governed by the legal norms of Ch. 4 of the Civil Code of the Russian Federation. In addition, there are a number of laws that supplement the norms of the Civil Code of the Russian Federation and establish special rules for individual organizational and legal forms of these organizations.
Legal entities that are commercial organizations can be created in the form of:
1) Business partnerships:
Full partnership;
Limited partnership (limited).
2) Business companies:
Limited Liability Company;
Additional liability company;
Public corporation;
Closed joint stock company.
3) Production cooperatives.
4) Unitary enterprises (state or municipal, state-owned):
Based on the right of economic management;
Based on the right of operational management.
The most commonly used forms are LLC, JSC (JSC and JSC).
Partnerships and societies - organizations that carry out their activities on a commercial basis at the expense of the founders' contributions, who own the capital of the organization.
Business partnerships and companies differ among themselves:
Partnerships - associations of persons; societies - pooling of capital.
Participants of partnerships - are responsible for their obligations with all their property (unlimited liability); members of societies - in the amount of their contribution.
1. Full partnership. Partners are not only founders, but also engaged in entrepreneurial activities, for the results of which they are responsible with their own property. The authorized capital is formed from deposits.
2. Limited partnership. Along with general comrades, command dealers participate in the authorized capital. They are not engaged in entrepreneurial activity, they are investors, therefore they are liable for obligations only with their contributions.
In general and limited partnerships, profits after taxes and other payments are distributed in proportion to contributions to the authorized capital.
3. Ltd... The authorized capital is equity, divided into shares. They risk only deposits on liabilities.
4. Additional liability company. The same as the LLC, only the participants bear additional responsibility for the obligations of their property, depending on the contributions. In the event of bankruptcy of one of the participants, his responsibility is distributed among the other participants.
5. JSC. The capital is divided into a certain number of shares. Responsibility - only within the limits of contributions. Members can buy and sell shares freely on the stock market. Shares are common and preferred. Ordinary - give the right to vote without fixed income. Preferred - their number is no more than 25% of all shares, do not give the right to vote, but give a fixed income. JSCs are required to create a reserve fund (10-25% of the authorized capital). The profit is distributed in proportion to the number of acquired shares - dividends.
6. COMPANY. Everything is the same as at the OJSC, only participants no more than 50, shares can be distributed only among their own.
7. Production cooperatives. The capital is formed at the expense of property contributions - shares. The activity is based on personal labor participation. Responsibility is borne by their contributions, income is distributed in proportion to labor participation. The number of participants is at least 5.
Cooperatives are production (artel) and consumer.
The rights of members of a production cooperative:
Participate in managing the affairs of the cooperative (1 vote).
Elect and be elected to the Councils and governing bodies of the cooperative.
Make suggestions for improving performance.
Receive part of the profit and liquidation quota.
Transfer your share to other persons of the cooperative.
Duties:
Making contributions.
Personal labor participation.
Compliance with discipline.
Bearing subsidiary (share) liability for the debts of the cooperative.
Non-disclosure of commercial secrets.
Common features of cooperatives:
The purpose of creation is joint activities aimed at meeting the needs of its members.
Limiting the size of the members' profits distributed among them.
Compulsory formation of indivisible funds for statutory purposes.
Obligatory personal participation.
8. Unitary enterprises. The authorized capital belongs to the state. The head is an executive body. Enterprise property and capital are indivisible. They carry out the types of activities specified in the constituent documents. If the priority is making a profit, then an enterprise is created with the rights of economic management. The enterprise, deducting a percentage of the profit to the owner, conducts a relatively independent activity (owns (disposes) and uses) (municipal unitary enterprises and state unitary enterprises). If the goal is to fulfill the functions of the state, then the enterprise has the rights of operational management. Freedom is limited (use only) (state enterprises).
Commercial organizations as subjects of business law: concept and types.
A commercial organization is a legal entity pursuing profit-making as the main goal of its activities, in contrast to a non-profit organization, which does not have the goal of making a profit and does not distribute the received profit among the participants
The main features of a commercial organization:
The purpose of the activity is to make a profit;
Organizational and legal form clearly defined in the law;
Distribution of profits 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 property rights, economic management or operational management, other property rights; the property can be rented; They are responsible for their obligations with the property belonging to them; Acquire and exercise property and non-property rights on their own behalf; have responsibilities;
They can be a plaintiff and a defendant in court.
The 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 business partnerships and societies, peasant (farmer) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises.
Members of a commercial organization have the right to participate in management.
Receive information about their activities.
Receive a profit proportional to the contribution.
Receive property after liquidation.
The procedure for creating a commercial organization
1. Determination of the composition of founders, holding a general meeting of founders.
(different requirements for the competence and status of the institution, depending on the organizational and legal form) Restriction for the state. Employees.
2. Choice of organizational and legal form (except for restrictions) Auditors are not OJSC.
1. The number and status of the institution.
2. Profile of activity.
3. Sources of capital.
4. The structure of relations both between founders and between management bodies.
5. A measure of labor and other personal participation.
6. Ability to control other commercial organizations.
7. Measures of responsibility of founders.
3. Registration of constituent documents.
Memorandum of Association (Business Partnership) - documents that are concluded by the founders of the legal entity. Persons in simple writing, by drawing up a single document, indicating in it the place and date of the conclusion of the contract, and in the same place the period of its validity, signed by the participants personally.
Charter (JSC, LLC, Production cooperative, state. Municipal. Enterprise) - documents establish the legal status of the organization.
4. Development of the name of a commercial organization - individualization in economic circulation. Mandatory indication of the organizational and 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 legal entity permanently operating.
6. Formation of the 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 legal entities. Persons in the manner prescribed by law.
Registration with the tax authority, state Social funds.
Seals. Registration with statistics authorities.
Opening a current account.
The creation of a subject of business law is a process of committing legally significant actions and the adoption of appropriate acts aimed at giving a person the status of a subject of business law.
Traditionally, there are four ways to create subjects of business law.
1. The founding 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 the subjects of the Russian Federation and local self-government). This method is used when creating state and municipal unitary enterprises. The functions of the owner for the creation of such enterprises are entrusted to the relevant federal executive bodies, executive bodies of the constituent entities of the Russian Federation and the relevant local government bodies.
2. The founding method is used when creating commercial organizations with one participant (for example, business companies), as well as when legitimizing individual entrepreneurial activities.
3. The contractual-constituent method is used when creating commercial organizations with more than one founders (business partnerships, business companies, production cooperative).
4. The permissive-constituent method provides for the need to obtain permission from the state body to create a commercial organization (for example, on the basis of Article 17 of the RSFSR Law "On Competition and Restriction of Monopolistic Activity in Commodity Markets", in some cases, it is necessary to obtain permission from the antimonopoly body).
Types and procedure for the reorganization of a commercial
The organization
Reorganization of a legal entity (merger, acquisition, division, separation, transformation) can be carried out by decision of its founders (participants) or the body of the legal entity authorized by the constituent document.
Reorganization of a legal entity with a simultaneous combination of its various forms is allowed.
Reorganization with the participation of two or more legal entities, including those created in different organizational and legal forms, is allowed, 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 is a set of legally significant actions of the founders of legal entities and state. Bodies aimed at the implementation of the transfer of rights and obligations of legal entities. Persons to other legal entities Persons in the order of succession, as well as the commission by authorized state bodies of acts of state. Registration of creation and liquidation of legal entities. Persons changing their constituent documents. Regulated by the Civil Code.
Types (forms):
1. Merger: In the event of a merger of legal entities, the rights and obligations of each of them are transferred to the newly formed legal entity in accordance with the transfer act.
2. Affiliation: 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. Division: When a legal entity is divided, its rights and obligations are transferred to the newly emerged legal entities in accordance with the transfer act.
4. Separation: When one or several legal entities are separated from the structure of 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 entity that made the decision to reorganize the legal entity. Persons:
1. Voluntary (the decision is made by the founders)
2. Compulsory (in cases stipulated by law, in case of violation of publicity, an external manager is appointed)
Reorganization procedure:
1. Consent of state authorities (merger, accession if the transaction of total assets is more than 30 million rubles.)
2. Written notification of creditors (may require early repayment of the performance of the obligation or termination of the obligation and compensation for losses)
3. Securing the rights of creditors (the deed of transfer must contain information about the succession, if the deed of transfer does not determine the legal successor - joint liability)
4. Decision-making 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 of state registration of changes in the Unified State Register of Legal Entities.
1. The deed of transfer must contain provisions on succession for all the obligations of the reorganized legal entity in respect of all its creditors and debtors, including obligations contested by the parties, as well as the procedure for determining 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 to reorganize the legal entity, and is submitted together with the constituent documents for state registration of legal entities created as a result of the reorganization or amendments to the constituent documents of existing legal entities.
Failure to submit a deed of transfer together with the constituent documents, the absence in it of provisions on legal succession for all the obligations of the reorganized legal entity shall entail a refusal in state registration of legal entities created as a result of the reorganization.
Legal entities - business entities. In accordance with Art. 48 of the Civil Code of the Russian Federation, a legal entity is an organization that owns, economic management or operational management of separate property and is responsible for its obligations with this property, can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and defendant in court ... Legal entities must have their own balance sheet or estimate. A legal entity is considered created from the moment of its state registration in accordance with the established procedure. A legal entity has its own name, containing an indication of its organizational and legal form. Depending on the organizational and legal form, legal entities act on the basis of the charter, or the articles of association and articles of association, or only the articles of association.
In accordance with Art. 50 of the Civil Code of the Russian Federation, legal entities are divided into two types: commercial and non-commercial organizations.
A commercial organization is considered to be an organization that sets profit as the main goal of its activities. In accordance with the procedure established by law and constituent documents, a commercial organization distributes the net profit between the founders (participants). Consequently, in accordance with civil law, all commercial organizations (except for a state enterprise) can be considered entrepreneurial. Commercial organizations can be created in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises.
A commercial organization is a legal entity with the main purpose of making a profit (as opposed to non-commercial). They can be created as economic partnerships and societies, production cooperatives, state and municipal unitary enterprises.
Legal entities that are commercial organizations can be created in the form of business partnerships and companies, production cooperatives, state and municipal unitary enterprises. Legal entities that are non-profit organizations can be created in the form of consumer cooperatives, public and religious organizations, associations (associations, unions) of legal entities, institutions and in other forms provided by law.
Legal entities that are commercial organizations must have a corporate name; under this name a commercial organization is registered, entered in the state register of legal entities and acts in economic circulation.
A firm name is a way of individualizing a commercial organization; a commercial organization has the exclusive right to use it.
The current legislation provides for other ways of individualizing commercial organizations: a trademark, a service mark, which are used to individualize homogeneous goods and services, as well as to advertise them. Trademarks and service marks are subject to registration. Registration as trademarks and service marks of designations containing information that may mislead consumers is prohibited.
The rights to the trade name, trademark and service marks are non-property rights and belong exclusively to this commercial organization. A commercial organization has the right to demand through an arbitration court the compulsory termination of the use by any other person of identical and similar forms of individualization, as well as compensation for losses caused by such a violation.
The law provides for various types of commercial organizations, in particular, they are subdivided into organizations that are the owners of the property they use and are not. The former include economic partnerships and societies, production cooperatives, the latter - state and municipal unitary enterprises.
Commercial organizations that own property, in turn, are subdivided into "associations of persons" and "associations of capital".
"Associations of persons" are production cooperatives (artels); in these commercial organizations, personal participation in the activities of the cooperative is fundamental, this is manifested in the management of the cooperative and in the distribution of profits. Each member of the cooperative, regardless of the size of its capital, has one vote at the general meeting, the distribution of profits is also carried out on the basis of personal labor contribution.
Some personal participation in the activities of a commercial organization also presupposes a general partnership and a limited partnership (for general partners).
When considering the status of a legal entity, the question of its legal capacity is of great importance. It can be general (universal) and special (target). Commercial organizations have general legal capacity, with the exception of state and municipal unitary enterprises. Currently, they can engage in any types of entrepreneurial activity not prohibited by law. Non-profit organizations, as well as state and municipal unitary enterprises have special legal capacity. They have the right to engage only in those types of activities that are provided for by their constituent documents. These innovations are stipulated by the Civil Code of the Russian Federation of 1994; in accordance with the earlier legislation in force, commercial organizations had special legal capacity, they could only engage in those activities that were provided for by their constituent documents. However, the founders of commercial organizations can, on their own initiative, limit the legal capacity of a legal entity by introducing relevant provisions into the constituent documents. In this case, the activities of a legal entity must be carried out taking into account the established and restrictions.
According to Art. 48 of the Civil Code of the Russian Federation is recognized as a legal entity an organization that has separate property and is responsible to them for its obligations may, on its own behalf, acquire and exercise civil rights and bear civil obligations, be a plaintiff and defendant in court.
Legal capacity of a legal entity arisesfrom the moment of its creation, that is, state registration (clause 3 of article 49 and clause 2 of article 51 of the Civil Code of the Russian Federation), and terminates at the moment of its exclusion from the unified state register of legal entities (clause 9 of article 63 of the Civil Code of the Russian Federation).
There are two types of legal capacity of legal entities:
General (universal) legal capacity. It means the possibility of participation of a legal entity in any legal relationship, that is, to carry out any types of activities not prohibited by law.
Special (target) legal capacity. It assumes that a legal entity has only such rights and obligations that correspond to the goals of its activities, as defined by law or constituent documents.
According to paragraph 1 of Art. 49 of the Civil Code of the Russian Federation “a legal entity may have civil rights,corresponding to the objectives of the activity stipulated in its constituent document, and bear the obligations associated with this activity. Commercial organizations, with the exception of unitary enterprises and other types of organizations stipulated by law, may have civil rights and bear civil obligations necessary to carry out any types of activities not prohibited by law. "
Thus, all commercial legal entities have general legal capacity with the exception of state unitary enterprises and organizations for which special legal capacity is determined by law (for example, insurance companies). All other legal entities have special legal capacity.
The founders of a commercial legal entity can endow the organization they are creating with special legal capacity by defining in the constituent documents a list of the types of activities that it will carry out. However, such self-limitation of legal capacity will be valid for other participants in the turnover if they were aware of such a limitation. So, according to Art. 173 of the Civil Code of the Russian Federation, a transaction made by a legal entity in contradiction with the goals of activity, definitely limited in its constituent documents, may be recognized by the court as invalid at the suit of this legal entity, its founder (participant) or another person in whose interests the restriction is established, if proven, that the other party to the transaction knew or should have known about the restriction.
The legal capacity of a legal entity may be limited by the state. For example, the types of activities for which a license is required, an enterprise can carry out only after obtaining it, regardless of whether the possibility of carrying out this type of activity is recorded in the constituent documents of the legal entity. The current legislation provides for the licensing of insurance, banking, transportation, construction activities, dealer, brokerage and some other professional activities in the securities market and some other activities.
In order to ensure normal economic turnover, the legislation provides for the individualization of a legal entity.
Legal entity individualization - it is his separation from the general mass of all other organizations. It is carried out by locating and naming it. Means of individualization of a legal entity make it possible to clearly define which organization is a party in a civil legal relationship or in a legal dispute, which legal entity owns these or those subjective rights and obligations.
Name of the legal entity... A legal entity must necessarily have a full name in Russian; in addition, it may additionally have a full name in one of the languages \u200b\u200bof the peoples of the Russian Federation and (or) in a foreign language, as well as an abbreviated name. It must necessarily contain an indication of its organizational and legal form (business partnership or business company of a certain type, unitary enterprise, institution, etc.).
The name of a commercial organization is called a trade name (or firm). The right to a firm, that is, the use of a firm name in civil circulation, arises from the moment of its state registration. Such registration is carried out simultaneously with the state registration of the legal entity itself by entering the company name into the unified state register. The right to a firm belongs to the category of personal non-property rights and is absolute. It is protected by law from violations.
Location of a legal entityis determined by the place of its state registration (clause 2 of article 54 of the Civil Code of the Russian Federation) and must be indicated in its constituent documents.
State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of such, another body or person entitled to act on behalf of the legal entity without a power of attorney (Article 8 of the Federal Law of 08.08.2001 "On state registration of legal entities and individual entrepreneurs "). When the location of the legal entity changes, the registering authority makes an appropriate entry in the register and sends the registration file to the registering authority at the new location.
Legal entities can be organizations pursuing profit-making as the main goal of their activities ( commercial organizations) or not making profit as such a goal and not distributing the received profit between the participants ( non-profit organizations).
Legal entities that are commercial organizations can be created in the organizational and legal forms of economic partnerships and societies, peasant (farmer) enterprises, economic partnerships, production cooperatives, state and municipal enterprises. (Clause 2, Article 50 of the Civil Code of the Russian Federation).
In addition, according to Article 65.1 of the Civil Code of the Russian Federation, introduced into force by the Federal Law of 05.05.2014 No. 99-FZ from September 1, 2014, the division of legal entities into corporate (corporations) founders (participants) of which have the right to participate (membership) in them and form their supreme body and unitary, whose founders are not their participants and do not acquire membership rights in them.
Corporate legal entities includebusiness partnerships and societies, peasant (farmer) economies, business partnerships, production and consumer cooperatives, public organizations, associations (unions), real estate owners' partnerships, Cossack societies entered in the state register of Cossack societies in the Russian Federation, as well as communities of indigenous peoples Russian Federation.
Unitary legal entitiesare created in the form of state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, public companies.
Let's characterize some of the listed organizational and legal forms of legal entities - commercial organizations.
Business companies and partnerships arecommercial corporate organizations and have a lot in common. They are formed, as a rule, by several founders (citizens and (or) legal entities) for joint economic activities on the basis of an agreement between them.
The property of a business company or partnership (their charter or share capital) is created at the expense of the contributions of the founders and participants, and is also produced or acquired in the course of the company's or partnership's activities. The contribution can be money, securities, other property, as well as other rights that have a monetary value, including rights to intellectual property objects (for example, an invention, a trademark, a company name, etc.).
As stated in Art. 66 of the Civil Code of the Russian Federation, the authorized or joint capital of a company or partnership is divided into shares (contributions) of the founders (participants), however, the property that constitutes the authorized (joint) capital does not become the shared property of the founders (participants). This property is the property of the company or partnership, i.e. each founder or participant, after depositing his share in the authorized (pooled) capital, loses ownership of his share. This share, like all the others, becomes the property of the company (partnership). The division of the authorized (share) capital into shares is necessary because the scope of the participants' powers is determined in proportion to their shares in the authorized capital of the company, the economic company, some of the rights and obligations of the founder (participant) in relation to the company (partnership) depends on the size of the contribution made by him to the charter capital. (pooled) capital. For example, the founders (participants) have the right to: take part in the distribution of profits, and the share of profits is usually proportional to the size of the contribution; in case of liquidation of the company (partnership), receive part of the property remaining after settlements with creditors. The size of this part, as a rule, also depends on the contribution to the authorized (pooled) capital.
These rights, which the founders (participants) acquire in relation to the company (partnership) in exchange for the lost ownership of their contribution, are called obligatory. The rights of founders (participants) also include: the right to participate in the management of the organization's affairs, the right to receive information about the activities of a company or partnership, and other rights stipulated by law or constituent documents.
In paragraph 2 of Art. 67 of the Civil Code of the Russian Federation states that a participant in a business partnership or company, along with the obligations provided for participants in corporations by paragraph 4 of Art. 65.2 of the Civil Code of the Russian Federation is also obliged to make contributions to the charter (share) capital of a partnership or company, a participant of which he is in the manner, amount, in the ways provided for by the constituent document of the business partnership or company, and contributions to other property of the business partnership or company. Participants in business partnerships and companies may also bear other obligations provided for by law and their constituent documents.
At the same time, business companies and business partnerships have significant differences. The main difference between the two is that partnerships are associations of individuals and capital, while societies are only associations of capital.Therefore, the main obligation of the participants in partnerships is, in addition to making a contribution to the contributed capital, also personal participation in the activities of the partnership. Therefore, a citizen or legal entity can be a member of only one partnership. Since members of a society are not required to participate in its affairs, they can simultaneously be in several societies. In addition, only citizens registered as entrepreneurs and commercial organizations can be participants in the partnership, since the entrepreneurial activity of the partnership is carried out directly by its participants. Any capable citizens and legal entities can participate in societies, with the exception of state, municipal legal entities and institutions, which are required to obtain the consent of the owner of the property for this.
Business partnerships are of two types - full partnerships and limited partnerships (limited partnerships).
A full partnership is recognized as such,whose participants (they are called general partners) are engaged in entrepreneurial activities on behalf of the partnership and are responsible for its obligations with their personal property (Article 69 of the Civil Code of the Russian Federation). As a rule, the form of partnership is used for family business.
The management of the partnership is characterized by a number of features. Firstly, each participant has the right to act on behalf of the partnership, i.e. transactions concluded by a general partner entail the emergence of rights and obligations for the partnership itself. According to Art. 73 of the Civil Code of the Russian Federation, the participation of a full partner in the affairs of the partnership is not only his right, but also an obligation. In this regard, management bodies are not created in the partnership, so there is no need for a charter. However, the memorandum of association, on the basis of which the full partnership operates, may establish that the affairs of the partnership are conducted jointly by all partners or that the conduct of business is entrusted to one participant. In the joint conduct of the affairs of a partnership by its participants, the consent of all the participants in the partnership is required to complete each transaction. If the conduct of business is entrusted by the participants to one participant or some of them, the other participants in order to make transactions on behalf of the partnership must have a power of attorney from the participant (participants) who is entrusted with the conduct of the business of the partnership (Article 72 of the Civil Code of the Russian Federation).
Secondly, the activities of the partnership are based on personal and trusting relationships. According to clause 1 of Art. 75 of the Civil Code of the Russian Federation, participants in a full partnership jointly bear subsidiary liability with their property for the obligations of the partnership. In the event of a lack of property to pay off his debts, creditors have the right to demand satisfaction from the personal property of any participant in the partnership. In this regard, a situation is possible when other participants will be responsible for deals concluded by some participants. The participants cannot by their agreement limit or eliminate the full liability for the partnership's debts. In addition, those participants who are not its founders, but entered the partnership after its registration, will also bear full responsibility. If a participant leaves the partnership, he continues to be liable for the partnership's obligations that arose before the time of his retirement, within two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership. Such a serious liability of the participants in a full partnership is a reliable guarantee of the rights of its creditors, therefore, for a full partnership, the law does not establish the minimum amount of its contributed capital, but, nevertheless, a full partnership as a legal entity should still have its own property. Therefore, one of the most important obligations of general partners is the obligation to make at least half of their contribution to the joint capital of the partnership by the time of its registration. The rest must be paid within the time frame specified in the memorandum of association, otherwise there is an obligation to reimburse the partnership for damages.
The profits and losses of a full partnership are distributed among the participants in proportion to their contributions, unless a different ratio is established by the constituent agreement (Article 74 of the Civil Code of the Russian Federation).
The rule that a person can be a participant in only one full partnership also follows from the full responsibility of the participants for the partnership's debts, since only in this case the full responsibility of the partners will be real, and not turn into fiction.
Each of the participants has the right to withdraw from the full partnership. This intention must be declared by the participant at least 6 months before the actual withdrawal from the partnership. However, if the partnership is created for a certain period, then voluntary withdrawal from it is allowed only for a good reason.
In the event of the exit (or death) of a participant, a full partnership can be liquidated, since a partnership is, first of all, an association of persons, not capital, and here the personal element is very important. Due to the increased responsibility that the participants bear for the debts of the partnership, they must trust each other. Therefore, it is sometimes very difficult to replace a dropped out participant. If the activities of a full partnership can nevertheless be continued, the partnership is not liquidated.
A participant in a full partnership may be expelled from the partnership in a judicial proceeding by unanimous decision of all other participants in the presence of serious reasons, in particular as a result of a gross violation of his duties by this participant or his revealed inability to conduct business reasonably.
A participant who has retired from a full partnership is paid the value of the property, which is his share in the contributed capital of the partnership. If some kind of property was contributed as a share, it can be returned only with the consent of all participants in the partnership. In the event of the death (or reorganization) of a participant in a full partnership, his heir (legal successor) may enter the partnership, but only with the consent of other participants. Otherwise, he is paid the value of the inherited share (in the order of succession).
A participant in a full partnership may transfer his share in the pooled capital to other persons with the consent of all other participants. When the share is transferred to the new participant, the rights and obligations of the withdrawn participant are also transferred. If the only participant remains in the partnership, the partnership must be liquidated or, within 6 months, transformed into a business company.
Limited partnership, or limited partnership(Art. 82-86 of the Civil Code of the Russian Federation) has much in common with a general partnership. A limited partnership is also, first of all, an association of persons, not capital.Therefore, a personal moment is also very important here: the general partners of a limited partnership are responsible for the obligations of the partnership with all their property. Their duties are not limited to making a contribution to the property of the partnership, they are also required to participate in the affairs of the partnership. Therefore, in a limited partnership, special bodies are not created that exercise the powers of a legal entity. All general partners have the right to this, unless otherwise provided by the memorandum of association (as in a full partnership). This explains the fact that a limited partnership (like a general partnership) does not have a charter, but acts only on the basis of a memorandum of association. In order that the increased responsibility of the general comrades for the debts of the partnership does not turn into fiction, Art. 82 of the Civil Code of the Russian Federation establishes the following rules: a person can be a full partner in only one limited partnership; a general partner in a limited partnership cannot be a participant in a full partnership; a participant in a full partnership cannot be a full partner in a limited partnership.
The peculiarity of a limited partnership is that, along with general partners, it includes one or more participants - contributors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the amount of their contributions.
In connection with the limited liability for the partnership's debts, the participants - investors (limited partners) do not participate in the management and conduct of the partnership's affairs and can act on behalf of the partnership only by power of attorney. The contributor to a limited partnership has only one obligation - to contribute to the contributed capital. The participation of limited partners in a partnership is a way to raise additional funds.
Due to the lack of the right to manage the affairs of the partnership, the limited partners are forced to trust their comrades with regard to the expediency of using their contributions. Therefore, this type of partnership also has such names as "limited" and "limited partnership", which reflect these features. In Art. 85 of the Civil Code of the Russian Federation lists the rights of a limited partner. He has the right to receive a part of the partnership's profit due to his share in the contributed capital, to familiarize himself with the annual reports and balance sheets of the partnership, and at the end of the financial year, leave the partnership and receive back either the value of the contribution, or the contribution in kind, if this is provided for by the memorandum of association. He may also transfer his share or part of it to another investor or to a third party, and the depositors enjoy the pre-emptive right over third parties to purchase this share. This means that in the event of a sale of his share, the investor must first offer it to other investors, and only if they refuse, to third parties. Companions do not enjoy this privilege.
In the event of liquidation of a limited partnership, the investors have the preferential right to receive back their contribution from the property that remained after the payment of the partnership's debts. The property remaining after this is distributed among the general partners and investors in accordance with the memorandum of association (most often in proportion to their shares in the contributed capital). A limited partnership is retained if there is at least one full partner and one investor in it. If all investors leave it, then the partnership must be liquidated or transformed into a general partnership. A limited partnership can also be liquidated in the event of the retirement of one of the general partners. However, if the activities of the partnership can then be continued, it will not be liquidated.
Otherwise, the rules governing the activities of a full partnership are applied to the activities of a limited partnership (Articles 82, 86 of the Civil Code of the Russian Federation).
Clause 1 of Art. 66.3 of the Civil Code of the Russian Federation established the division of companies intopublicand non-public.
Public is a joint stock company,whose shares and whose securities, convertible into its shares, are publicly placed (by open subscription) or publicly traded. The rules on public companies also apply to joint stock companies, the charter and company name of which contains an indication that the company is public.
A limited liability company and a joint stock company that does not meet the characteristics of a public joint stock company are recognized as non-public.
The legal status of a limited liability company, the specifics of its activities are determined by the Civil Code of the Russian Federation (Articles 87-94) and the Federal Law “On Limited Liability Companies”. According to Art. 87 of the Civil Code of the Russian Federation, 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.
A limited liability company can be created by one, two or more participants, which can be individuals (citizens) and legal entities. However, a limited liability company cannot have another business company consisting of one person as its sole participant. At the same time, the aforementioned Federal Law stipulates that the number of participants in a limited liability company cannot be more than 50. If the limit specified in the Law is exceeded, it must be transformed into a joint stock company or a production cooperative within a year. If after a year the number of participants in a limited liability company does not decrease to the limit established by law, it is subject to liquidation in court.
A member of a limited liability company can be a foreign legal entity or an individual, taking into account the specifics determined by the current legislation. For example, in accordance with Art. 2 of the Federal Law "On Foreign Investments in the Russian Federation" foreign investors can be:
a foreign legal entity, the civil legal capacity of which is determined in accordance with the legislation of the state in which it is established, and which, in accordance with the legislation of that state, is entitled to invest in the territory of the Russian Federation;
a foreign citizen whose civil legal capacity and legal capacity are determined in accordance with the legislation of the state of his citizenship and who is entitled, in accordance with the legislation of that state, to invest in the territory of the Russian Federation.
Additional requirements for the creation of credit institutions with the participation of foreign investors are provided for by Art. 17, 18 FZ "On banks and banking activities".
State bodies and bodies of local self-government are not entitled to act as participants in societies, unless otherwise provided by law. Institutions financed by the owners may be members of business companies only with the permission of the owner, unless otherwise provided by law.
As a general rule, the constituent documents of a limited liability company are the constituent agreement signed by its founders and the charter approved by them. However, if the company is founded by one person, then the memorandum of association is not drawn up, and the founder decides on the creation of a limited liability company, which is not considered as a constituent document.
Unlike partnerships, a limited liability company has an authorized capital, not a share capital. The authorized capital, like the share capital, is the total monetary value of the contributions of the company's participants and is divided into shares of the size and their nominal value predetermined by the constituent documents. Moreover, these shares correspond to the contributions of the company's members. The authorized capital, as well as all other property of the company, is the property of the company itself, and not of its participants. The participants have the right to claim against the company, commensurate with their contribution, but not the ownership of the share contributed to the authorized capital, i.e. they do not own the property right to the contributed share.
The contribution of the participants to the authorized capital of the company can be monetary funds, buildings, structures, equipment, land and other material values. As a contribution to the property of a limited liability company, property rights or other rights, but having a monetary value, can be made. In this regard, such a contribution cannot be an object of intellectual property (patent, object of copyright, including a computer program, etc.) or know-how. However, the right to use such an object transferred to the company in accordance with a license agreement, which must be registered in the manner prescribed by law, can be recognized as a contribution.
The monetary assessment of non-monetary contributions to the charter capital of the company made by the company's participants and third parties accepted into the company is approved by the decision of the general meeting of the company's participants, adopted unanimously by all the company's participants. If the nominal value (increase in the nominal value) of the share of a company participant in the charter capital of the company, paid for with a non-monetary contribution, exceeds 200 minimum wages established by federal law as of the date of submission of documents for state registration of the company or the corresponding amendments to the charter of the company, such a contribution must be assessed independently an appraiser. The charter of the company establishes the types of property that cannot be a contribution to the charter capital of the company.
The authorized capital of a limited liability company must be paid by its participants at least in half at the time of registration. The remaining unpaid part of the authorized capital of the company is subject to payment by its participants during the first year of the company's activity. In case of violation of this obligation, the company must either declare a decrease in its charter capital and register its decrease in accordance with the established procedure, or terminate its activities by liquidation. It is not allowed to release a participant in a limited liability company from the obligation to make a contribution to the charter capital of the company, including by offsetting claims against the company.
In Art. 90 of the Civil Code of the Russian Federation and in Art. 20 of the Federal Law "On Limited Liability Companies" provides that if at the end of the second or each subsequent financial year, the value of the net assets of a limited liability company is less than the authorized capital, the company is obliged to declare a decrease in its authorized capital and register its reduction in the prescribed manner. If the value of the said assets of the company becomes less than the minimum amount of the authorized capital determined by law, the company is subject to liquidation.
In order to protect the interests of the company's creditors and guarantee their rights, Art. 90 of the Civil Code of the Russian Federation established that a reduction in the authorized capital of a limited liability company is allowed after notification of all its creditors. In this case, creditors have the right to demand early termination or fulfillment of the company's corresponding obligations and compensation for losses. An increase in the authorized capital of a company is allowed only after all its participants have made contributions in full.
Despite the fact that this business company is called a limited liability company, its participants are not liable for its debts, and only “the risk of losses associated with the activities of the company, within the value of the contributions made by them” (clause 1 of Art. 87 of the Civil Code of the Russian Federation and clause 1 of article 2 of the Federal Law "On limited liability companies").
It should be noted that 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.
Each participant has the right to leave the company at any time, regardless of the consent of its other participants. Upon exiting, he is paid the actual value of a part of the property corresponding to his share in the authorized capital of the company, in the manner, manner and within the time frame provided for by the Federal Law "On Limited Liability Companies" and the constituent documents of the company (Article 94 of the Civil Code of the Russian Federation, Article 26 of the Federal Law ). A participant leaving the company is paid a share of the profit due to him based on the results of the company's work, the value of his contribution to the authorized capital of the company and the value of a part of the property, proportional to this contribution. The size of the share is determined on the basis of the balance sheet compiled for the year in which the participant left the company.
Provided by art. 94 of the Civil Code of the Russian Federation and Art. 26 of the specified Federal Law, the provision on the right of a participant at any time to leave the company, regardless of the consent of its other participants, is a peremptory norm. Therefore, the conditions of the constituent documents that deprive the participant of this right or limit it should be considered null and void, i.e. not giving rise to legal consequences.
According to Art. 93 of the Civil Code of the Russian Federation and Art. 21 of the Federal Law "On Limited Liability Companies", a company participant has the right to sell or otherwise cede his share in the charter capital of the company or a part of it to one or several participants of this company. As a general rule, such a transaction does not require the consent of the company or other members of the company. However, the charter of the company may provide that other participants must agree (for example, unanimously) to sell or otherwise transfer the specified share. Sale or other assignment by a participant of his share or part of it to a third party, i.e. not to a member of the society and not to the society itself, is possible, if it is not prohibited by the charter of the society. For example, the charter of a company may stipulate that the sale or other assignment of a share (part of a share) to third parties is not allowed, or that a share in the authorized capital of the company may be transferred to third parties by a decision adopted by all members of the company unanimously.
In accordance with Art. 93 of the Civil Code of the Russian Federation and Art. 21 of the specified Federal Law, the participants in the company enjoy the pre-emptive right to acquire a share (part of the share) of a participant in the company at the offer price to a third party in proportion to the size of their shares. The charter of the company or an agreement of the participants in the company may provide for a different procedure for exercising this right, for example, disproportionate to the size of the shares of the participants in the company.
If the members of the company do not exercise their preemptive right within one month from the date of notification or at another time determined by the charter of the company or by agreement of its participants, the share of the participant may be alienated to a third party. If this is not possible, and other members of the company refuse to purchase the specified share, the company is obliged to pay the participant its actual value or give him in kind property corresponding to such value.
The company's charter may provide for the company's preemptive right to acquire a share (part of a share) sold by its participant, if other members of the company have not used their preemptive right to purchase a share (part of a share). In this case, the company is obliged to sell it to other participants or third parties within a year, for example, to distribute it among all the company's participants in proportion to their shares in the authorized capital of the company; sell to all or some of the company's members and / or third parties, unless prohibited by the company's charter. The unallocated or unsold part of the share must be redeemed with a corresponding decrease in the authorized capital of the company.
Shares in the authorized capital of a limited liability company are transferred to the heirs of citizens and legal successors of legal entities who are participants in the company, unless the constituent documents of the company provide that such a transfer is allowed only with the consent of the other participants in the company. Refusal to consent to the transfer of a share entails the obligation of the company to pay the heirs (successors) of the participant its actual value or to give them property in kind at such a value in the manner and under the conditions stipulated by the Federal Law "On Limited Liability Companies" and the constituent documents of the company.
Joint responsibility means responsibility according to the principle “one for all, all for one” (Article 323 of the Civil Code of the Russian Federation).
The joint stock company is determinedThe Civil Code of the Russian Federation (Art. 96) and the Federal Law “On Joint Stock Companies” (Art. 2) as a business 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 company's activities. Within the value of the shares they own.
The main legal acts that govern the activities of joint stock companies areCivil Code of the Russian Federation (Art. 96-104), Federal Law "On Joint Stock Companies", other laws and regulations. The specifics of the creation and legal status of joint stock companies in some property areas (for example, banking, investment and insurance activities) are determined by federal laws, for example, the Federal Law “On Banks and Banking Activities”.
A joint stock company, like a limited liability company, is a capital pool. The authorized capital of a company is made up of the par value of the company's shares.
According to Art. 25 of the Federal Law "On Joint Stock Companies", all shares of the company are registered. The company is entitled to place ordinary shares, as well as one or several types of preferred shares.
A public joint-stock company is obliged to submit for entry into the Unified State Register of Legal Entities (USRLE) information about the company name of the company, which contains an indication that such a company is public.
The joint-stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, from the date of entering into the Unified State Register of Legal Entities the information on the company's corporate name containing an indication that the company is public. Shareholders of an open company may alienate their shares without the consent of other shareholders of this company.
The authorized capital of a joint-stock company is made up of the par value of the company's shares acquired by shareholders. The par value of all ordinary shares of the company must be the same. The main purpose of the authorized capital of a joint-stock company is that it determines the minimum size of the company's property that guarantees the interests of its creditors. The minimum authorized capital of an open company must be at least 1000 times the amount of the minimum wage established by federal law on the date of registration of companies. After payment for the shares in full, the authorized capital can be increased by issuing additional shares or increasing their par value. The authorized capital can be reduced by redeeming a certain number of shares or reducing their par value (in compliance with the procedure and conditions determined by the Federal Law “On Joint Stock Companies”).
When creating a company, the founders conclude an agreement in which they determine the procedure for their joint activities to create a company, the size of the authorized capital of the company, the categories of issued shares and the procedure for their placement, as well as other conditions. The agreement on the creation of a joint stock company is concluded in writing by drawing up one document signed by the parties. However, it is not a constituent document. The only constituent document of a joint-stock company is its charter, approved by the founders.
The charter of a joint stock company, in accordance with clause 3 of Art. 98 of the Civil Code of the Russian Federation, must contain information about the firm name of the company and its location, conditions on the categories of shares issued by the company, their nominal value and quantity, and the size of the authorized capital of the company; the rights of shareholders; on the composition and competence of the company's bodies and the procedure for their decision-making, including on issues, decisions on which are taken unanimously or by a qualified majority of votes. The charter of a joint-stock company must also contain other information provided by law.
According to the Federal Law "On Banks and Banking Activities", the charter of a credit institution must contain its corporate name, which implies an indication of the nature of the activity of this legal entity through the use of the words "bank" or "non-bank credit institution", a list of banking operations and transactions that the credit the organization has the right to perform in accordance with the issued license and art. 5 named FZ.
A joint-stock company must have a register of shareholders, which contains information about each registered person (shareholder or nominee holder of shares), the number and categories (types) of shares registered in the name of each registered person, and other information provided for by legal acts of Russia.
A production cooperative is a voluntary association of individuals on the basis of membership for joint production or other economic activities based on their personal labor and other participation and the consolidation of property shares by its members (participants) (Article 107-112 of the Civil Code of the Russian Federation; Federal Law "On production cooperatives ").
The founders (at least five) can be citizens who have made the share contribution established by the charter of the production cooperative, as well as foreign citizens and stateless persons. Legal entities may take part in the activities of a production cooperative on the conditions provided for by the charter, and it is allowed to employ hired workers not exceeding 30% of the number of members of the cooperative.
The only constituent document is the charter, approved by the general meeting of the members of the cooperative. The content of the charter is determined in Art. 5 Federal Law "On production cooperatives".
The supreme governing body is the general meeting of the members of the production cooperative. When making a decision, each member of the production cooperative has one vote. If there are more than 50 members, then a supervisory board can be created.
The executive bodies include the board and (or) the chairman of the production cooperative. The chairman heads the board.
The property of a production cooperative is formed from the share contributions of the members of the production cooperative, provided for by its charter, as well as profits from the activities of the production cooperative.
The share fund of a production cooperative determines the minimum size of the property of a production cooperative that guarantees the interests of its creditors. The property owned by a production cooperative is divided into shares of its members.
A share consists of a share contribution and the corresponding part of the net assets of a production cooperative, with the exception of an indivisible fund that can be created in a production cooperative (Article 11 of the Federal Law "On Production Cooperatives").
Profit is distributed among the members of the production cooperative in accordance with their personal labor and (or) other participation, the size of the share contribution. This is where the problem of inequality arises. So, the members of the production cooperative participating in its creation worked in it so that the second part of the share was large (that is, they earned it with their own labor), and those members who joined the production cooperative later (for example, later several years), by making the same share contribution as the initial ones, they immediately receive a part of the net assets, without yet investing personal labor in a production cooperative. Of course, such legal regulation is unreasonable. In this regard, paragraph 3 of Art. 9 of the Federal Law "On Production Cooperatives" reads: "the composition and procedure for determining the size of the share of a member of a production cooperative are determined by the charter of the production cooperative." This wording allows for the protection of the interests of members of a production cooperative to fix the length of service in the charter as a criterion for determining the part of net assets included in the size of the share.
By decision of the general meeting of members of the cooperative, part of the profits can be distributed among its employees. The procedure for distribution of profits is provided for by the charter of the production cooperative.
A production cooperative is responsible for its obligations with all property belonging to it by right of ownership. The subsidiary liability of the members of the cooperative for its obligations is determined in the manner prescribed by the charter of the cooperative (Article 13 of the Federal Law "On the production cooperative"). The creation, operation and liquidation of agricultural production cooperatives is regulated by the Federal Law "On Agricultural Cooperation".
A unitary enterprise isa commercial organization not endowed with the ownership right to the property assigned to it by the owner. Legal regulation is provided by the Civil Code of the Russian Federation (Art. 113-115), as well as by the Federal Law of November 14, 2002 No. 161-FZ "On State and Municipal Unitary Enterprises."
The following types of unitary enterprises can be created and operate in the Russian Federation:
1) based on the right of economic management:
federal state enterprise (owned by the Russian Federation);
state enterprise of a constituent entity of the Russian Federation (owned by a constituent entity of the Russian Federation);
municipal enterprise (owned by the municipal formation);
2) based on the right of operational management:
federal government enterprise;
state enterprise of a constituent entity of the Russian Federation;
municipal government enterprise.
Before the adoption of this special law, state-owned enterprises could be unitary enterprises created at the expense of property owned by the Russian Federation, i.e. in federal ownership.
The legislation establishes the following restrictions related to the creation of a unitary enterprise:
Unitary enterprises are not entitled to create another unitary enterprise as a legal entity by transferring part of their property (subsidiary enterprise) to it, but before the adoption of this Law it could (Article 2 of the Federal Law of 14.11.2002);
it is not allowed to create a unitary enterprise on the basis of combining property owned by the Russian Federation, constituent entities of the Russian Federation and municipalities;
for unitary enterprises, only special legal capacity has been established. A unitary enterprise may have civil rights that correspond to the subject matter and objectives of its activities, as provided for in the charter (Article 3 of the Federal Law of November 14, 2002).
The full corporate name of a unitary enterprise must contain the following words: "federal state enterprise", "state enterprise" or "municipal enterprise" and an indication of the owner of the property - the Russian Federation, a constituent entity of the Russian Federation, a municipal entity.
The property of a unitary enterprise belongs to it on the basis of the right of economic management (Article 294 of the Civil Code of the Russian Federation) or the right of operational management (Article 296 of the Civil Code of the Russian Federation). The property of a unitary enterprise is indivisible and cannot be distributed according to contributions (shares, shares), including among the employees of the unitary enterprise.
The property of a unitary enterprise is formed at the expense of (Article 11 of the Federal Law of November 14, 2002):
property assigned to a unitary enterprise on the basis of the right of economic management or the right of operational management;
income of a unitary enterprise from its activities;
other sources that do not contradict the legislation.
Issues related to the exercise of the right of economic management or the right of operational management are regulated by Ch. 19 of the Civil Code of the Russian Federation. As for the disposal of property, fixed on the right of economic management, then:
a unitary enterprise independently disposes of movable property belonging to it on the basis of the right of economic management (clause 1 of article 18 of the Federal Law of November 14, 2002);
a unitary enterprise disposes of immovable property belonging to it on the basis of the right of economic management, only with the consent of the owner of this property (however, it is not specified, only prior consent is required or the subsequent one is also allowed);
the owner has the right to receive a part of the profit from the use of the property that is in the economic jurisdiction of the enterprise.
The disposal of property, secured on the basis of the right of operational management, is characterized by the following points:
a state-owned enterprise has the right to dispose of any property belonging to it on the basis of the right of operational management only with the consent of the owner;
a state-owned enterprise independently sells its products (work, services), unless otherwise provided by law or other regulatory legal acts;
the owner of a state-owned enterprise has the right to seize from the state-owned enterprise excess, unused or misused property, to dispose of it at its own discretion.
The law establishes a general rule: a state or municipal enterprise disposes of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, goals, subject, the types of which are determined by the charter of such an enterprise. Transactions made by a state or municipal enterprise in violation of this requirement are void.
A unitary enterprise bears independent responsibility for its obligations with all property belonging to it, but is not responsible for the obligations of the owner of its property.
The owner of the property may be assigned subsidiary liability for the debts of a unitary enterprise if the insolvency (bankruptcy) of such an enterprise is caused by the owner of the property. The Russian Federation, a constituent entity of the Russian Federation, a municipal formation bear subsidiary responsibility for the obligations of their state enterprises in the event of insufficient property.
The founders of a unitary enterprise can be the Russian Federation, constituent entities of the Russian Federation and municipalities. A unitary enterprise is established, respectively, by a decision of the Government of the Russian Federation, a state authority of the constituent entities of the Russian Federation or a local self-government body.
A unitary enterprise is subject to state registration in accordance with the Federal Law “On state registration of legal entities and individual entrepreneurs”.
For state registration of the creation of a unitary enterprise, the following documents are provided: decision of an authorized state or municipal body; the charter of a unitary enterprise; information about the composition and value of the property.
The constituent document of a unitary enterprise is its charter, approved by the authorized body of the state or local government.
The authorized capital of a unitary enterprise must be fully formed by the owner of its property within 3 months from the date of state registration of such an enterprise.
The following entities are endowed with the functions of managing unitary enterprises.
Firstly, the owner of the property of a unitary enterprise, who is endowed with a set of rights in relation to the enterprise (Article 20 of the Law on GUP and MUP). The owner of the property of a state-owned enterprise, in addition, has the right:
to confiscate from a state-owned enterprise unnecessary, unused or misused property;
to bring to the state enterprise the orders for the delivery of goods, performance of work, provision of services for state or municipal needs;
to approve the estimate of income and expenses of the state enterprise.
With regard to the powers of the owner of the property of a federal state unitary enterprise, it is necessary to be guided by the Decree of the Government of the Russian Federation of December 30, 2002 No. 940 "On the powers of federal executive bodies to exercise the rights of the owner of the property of a federal state unitary enterprise."
Secondly, the head of the enterprise (director, general director), who is the sole executive body of the unitary enterprise. The manager is appointed by the owner of the property of the unitary enterprise and is accountable to him. The head of the unitary enterprise organizes the implementation of the decisions of the owner of the property of the unitary enterprise.