Who are business entities? Specialized business entities are
The concept of a business entity
Business entities are persons who directly carry out professional business activities on an ongoing basis.
Definition 1
A business entity is an officially registered person who owns property on the basis of which he conducts business activities, is a bearer of rights established by law, and bears independent property liability. Also, some types of activities can only be carried out by a business entity with a license.
Like any other economic unit, a business entity is characterized by a number of key elements, the characteristics of which are given directly in the definition: separate property, registration carried out in the prescribed manner, direct management of activities, economic competence, property liability of an independent nature.
Types of subjects - individual entrepreneurs and legal entities
Individual entrepreneurs carry out business activities without forming a legal entity. Information on the acquisition or termination of the status of an individual entrepreneur is recorded in a special state register. To register, an individual must submit a certain list of documents and an application to a special registration authority. Registration is carried out within 5 days from the date of application and submission of the application.
Legal entities are organizations with separate property that can acquire civil rights and obligations on their own behalf, as well as act as a plaintiff or defendant in an arbitration court. Legal entities, in turn, are divided into commercial and non-profit organizations.
The activities of commercial organizations are aimed at generating profit and distributing it, while non-profit organizations do not pursue such a goal. Non-profit organizations are divided into charitable, public and religious organizations, as well as consumer cooperatives.
Types of commercial organizations
Commercial organizations are divided into:
- State and municipal enterprises are divided into unitary and state-owned enterprises. Unitary enterprises are organizations that are not vested with ownership rights over the property assigned to them.
Business partnerships are divided into general and team partnerships, whose authorized capital is divided between the participants into shares.
Participants in general partnerships engage in entrepreneurial activities on the basis of an agreement concluded between them and bear full responsibility for the obligations of the partnership with the property belonging to them.
In addition to the participants engaged in entrepreneurial activities and bearing full responsibility for their property, command partnerships (on faith) include so-called investors who do not carry out activities and are liable only to the extent of the treasures contributed by them.
Business companies are divided into joint stock, limited and additional liability.
The founding (authorized capital) of limited and additional liability companies is divided among the participants into shares (the size is determined by the constituent document). The difference is that additional liability implies incurring liability for the risks of the enterprise in an amount that is a multiple of the value of the contribution made.
The authorized capital of joint stock companies is divided among the participants into a certain number of shares, while the participants themselves are not liable for the obligations of the company and bear the loss risk only within the limits of the value of the shares they own.
Production cooperatives are voluntary associations of citizens for joint activities (production or other economic), based on their personal labor participation and the pooling of their property shares;
Entrepreneurial business: subjects and forms
Business entities.
Business entities in the Russian Federation.
Organizational and legal forms of entrepreneurship in Russia.
1. Business entities
Business entity is an active party to any transaction, a bearer of rights and obligations arising during the preparation and implementation of the transaction.
Business entities, guided by business interests, can engage in any types and types of business activities not prohibited by law.
The activities of business entities are extraterritorial, that is, no differences in the laws of states can cancel the ability of business entities to enter into business relations.
Under business entity the functional affiliation of a given subject and the functional specialization of its activities are understood.
Based on functional specialization, business entities are divided into:
Entrepreneurs who carry out proactive activities at their own risk and under their individual economic and legal responsibility (collectives of entrepreneurs and business associations);
Workers carry out labor activities for hire, as well as trade unions;
Individual and collective consumers of products;
State and municipal authorities and management are business entities in cases where they act directly as participants in a transaction, as well as government officials.
2. Business entities in the Russian Federation
Entrepreneurial activity is carried out in two forms:
1) individual, i.e. individual entrepreneurs
2) by creating an organization, when other persons are involved, i.e. entity.
Thus, the subjects of entrepreneurial activity in the Russian Federation are: citizen entrepreneurs and legal entities.
Citizens have the right to engage in entrepreneurial activity from the moment of state registration, and have the right to choose any type of activity not prohibited by law.
In some cases, a license or permit is required to run an individual business.
Individual entrepreneurs are individuals who conduct business at their own expense and are personally involved in management; they are also responsible for the obligations of all the property they own, thus, all the risk rests with them.
Means of individualization of citizens - entrepreneurs:
2) Place of residence, which is determined by the place of permanent or primary residence on the basis of registration.
Acquiring rights and obligations on behalf of another person is prohibited.
Legal requirements for running an individual business:
1) Registration requirement
2) Obtaining a license (permission for a specific type of activity)
3) Providing a declaration and tax documentation on the status of income and turnover for paying taxes.
4) Compliance with tax laws regarding the employment of third parties.
5) Compliance with laws or regulations for a specific type of activity that may limit it or serve to control it.
Individual entrepreneurship has a number of positive aspects:
The client often knows the entrepreneur personally. Consequently, the entrepreneur can quickly respond to changes in consumer tastes.
Flexibility and the ability to make quick decisions, because there is no interference from partners.
The existence of a psychological incentive for hard work.
Disadvantages of individual entrepreneurship:
1) Limited financial resources.
2) Limited business scale.
3) The impossibility of large supplies and the development of large-scale production.
4) The limitations of human abilities and problems with the use of vacations and sick leave.
The Civil Code of the Russian Federation says: entity- an organization that has separate property in ownership, economic management and operational management and is liable for its obligations with this property, can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, and be a plaintiff or defendant in court.
Signs of a legal entity:
1) Organizational unity is a coordinated structure and the presence of governing bodies.
2) Property isolation, i.e. Property is assigned to a legal entity on the basis of various rights.
3) Legal entities have an independent balance sheet or budget.
4) The ability to sue and act as a defendant in court on your own behalf.
5) Independent property liability presupposes that a legal entity is liable for its obligations with all the property belonging to it.
Legal entities differ in a number of ways:
1) According to the form of ownership, legal entities can be private or public
2) By the nature of the raw materials consumed:
a) mining industry enterprises
b) processing industry enterprises
3) Depending on the size:
a) large
b) average
Also, legal entities differ in their industry and type of main activity, etc.
In accordance with the Civil Code of the Russian Federation, legal entities are classified:
1. Depending on what rights the founders (participants) retain in relation to legal entities or their property
1.1. Legal entities in respect of which their participants have rights of obligations (business partnerships and societies, production and consumer cooperatives)
1.2. Legal entities on property of which their founders have ownership rights (state municipal unitary enterprises)
1.3.Legal entities in respect of which their founders do not have any property rights (religious and public foundations, charitable organizations)
2. Depending on the goals of the activity, every legal entity belongs to one of two categories:
2.1.Commercial, pursue profit as the main goal of their activities.
2.2. Non-profits that pursue other goals.
3.by organizational and legal form: (see clause 3)
3. Organizational and legal forms of doing business in the Russian Federation
Business partnerships and societies
General partnerships
Institutions
Organizational and legal forms of entrepreneurship
Religious and public organizations
With the right of operational management
Limited Liability Companies
Additional liability company
According to the Civil Code, business partnerships and companies are recognized as commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). Business partnerships and societies have similar features:
Property created through the contributions of participants, as well as acquired or produced in the process of activity, belongs to these enterprises by right of ownership.
Business partnerships and companies as legal entities can be participants in other partnerships and companies.
The founders have obligations in relation to the company.
Partnership – This is an association of persons who are engaged in entrepreneurial activities; only individual entrepreneurs or commercial organizations can participate in them.
Full A partnership is recognized, the participants of which (general partners), in accordance with the concluded agreement, are engaged in entrepreneurial activities on behalf of the partnership and are liable for their obligations with the property belonging to them.
The corporate name of a general partnership must contain the names (titles) of all its participants and the words “full partnership”.
A general partnership is created and operates on the basis of a constituent agreement signed by all participants; management is carried out by common consent, each participant has one vote, unless otherwise provided by the agreement.
Features of a general partnership:
The entrepreneurial activity of its participants is recognized as the activity of the partnership itself as a legal entity.
If there is insufficient partnership property to pay off debts, creditors have the right to demand that they be covered from the personal property of any of the participants.
Any of the participants is engaged in business activities on behalf of the partnership as a whole, therefore a charter establishing the competence of the management bodies is not required.
Limited partnership consists of two groups of participants: full participants and contributors. The activities of general partners are carried out in the same way as in a general partnership.
Investors only make contributions to the property of the partnership, but are not liable for obligations with personal property. By attracting investors, it becomes possible to obtain additional funds not at the expense of the property of general partners.
Investors do not have the right to participate in the management of the limited partnership and act on its behalf. Investors have the right to receive a portion of the profit in accordance with the contributed share. The investor has the right to transfer his share to a third party, and the consent of his partners is not required.
Business societies.
Limited Liability Company An institution with one or more persons is recognized. A company whose authorized capital is divided into shares in amounts determined by the constituent documents. Participants in 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 limits of the amounts of contributions made by them. The constituent documents of an LLC are: the constituent agreement signed by the founders, the charter; the supreme body is the general meeting of participants.
LLC Features:
It is a type of capital association that does not require the mandatory personal participation of its members in economic activities.
The law determines the minimum size of the authorized capital, thus ensuring certain guarantees for creditors.
Additional liability company differs from an LLC only in that if the company’s property is insufficient to satisfy the claims of creditors, the participants can be held administratively liable, and jointly and severally.
Joint stock company A company is recognized whose authorized capital is divided into a certain number of shares. Shareholders are not liable for the obligations of the joint stock company, but bear the risk of losses up to the value of their shares.
When organizing the authorized capital, complete equality of shares is maintained, with the mandatory registration of their shares. Upon exit, the shareholder cannot demand any payments, because it can be accomplished only in one way by selling (or otherwise transferring) your shares to another person.
Organizing the authorized capital with the help of securities makes it possible to concentrate large capital, as well as quickly alienate and acquire shares. However, with this form of enterprise organization, abuses most often occur.
The main difference between open joint stock companies is that its participants can alienate their shares without the consent of other shareholders. Whereas in a closed joint stock company, shareholders have a preemptive right to purchase shares sold by other shareholders of this company. In addition, in an OJSC, upon creation, it is necessary to carry out an open subscription to the issued shares and their free sale. To control the activities of the JSC, it is obliged to annually publish an annual report, balance sheet, and profit and loss account in the media.
When a closed joint-stock company is created, it distributes shares only among the founders, or a predetermined circle of persons.
According to the Civil Code, business companies include subsidiaries and dependent companies.
A subsidiary company is recognized as such if another main business company, due to its predominant participation in its authorized capital, or otherwise, has the opportunity to influence decisions made by such company. The subsidiary is not liable for the obligations of the parent. At the same time, the main company is jointly and severally liable for transactions concluded by the subsidiary company in execution of its orders.
A dependent business company is recognized as such if another, dominant or participating company has more than 20% of the voting shares or 20% of the authorized capital of the LLC.
Production cooperatives or artels - These are voluntary associations of citizens for joint economic activities based on their personal labor and other participation. The capital of a production cooperative is formed by combining the property share contributions of the cooperative participants. The founding document is the charter. The number of members of the cooperative must be at least five. The profit of the cooperative is divided among its members in accordance with labor participation, unless a different procedure is provided for by the charter. The highest governing body is the general meeting of members of the cooperative. Each member of the cooperative has one vote. When leaving the cooperative, the participant must be paid the value of the share or the corresponding property must be transferred.
A production cooperative is based on a voluntary association of individuals who are not individual entrepreneurs.
State and municipal unitary enterprises stand in a special category among commercial enterprises.
A unitary enterprise is a commercial organization that is not endowed with property rights and does not have property assigned to it.
The charter of a unitary enterprise, in addition to general information, information about the purpose and subject of activity, must contain information about the size of the authorized capital, the procedure and sources of its formation, i.e. information about the owners.
Features of unitary enterprises:
The basis of the business is the principle of unitarity, in contrast to other commercial enterprises, which are based on the principle of corporatism. The principle of unitarity is that the founder is considered the owner of the property.
The property of a unitary enterprise is indivisible, and under no circumstances can it be divided according to salaries, shares, shares, even between employees.
The property of a unitary enterprise is assigned to a limited right: economic management or operational management.
The manager is appointed by the owner, to whom he is accountable.
The right of economic management is broader than the right of operational management, i.e. Enterprises of the 1st group have greater independence in management. They bear independent property liability for their debts, and the founders are not liable for their obligations, except in cases where the founder himself is to blame for bankruptcy.
In case of insolvency of enterprises based on the right of operational management (treasury), the Russian Federation bears subsidiary liability for obligations in the event of insufficient property of the enterprise. Thus, such an enterprise, in principle, cannot be bankrupt.
Non-profit organizations.
Associations of legal entities are created by commercial organizations for the purpose of coordinating business activities, as well as representing and protecting common property interests.
Associations of legal entities include:
1) Holdings.
2) Financial and industrial groups.
3) Intersectoral and regional business unions (associations).
The organization and activities of enterprise associations of any form are based on the following principles:
Voluntary association based on common economic interests.
Equality of participants in joint activities.
Freedom to choose the organizational form of the association.
Self-government of participants and associations as a whole.
Organization of relations on a contractual basis.
Legal entities that are part of the association retain the independence and rights of a legal entity; the governing bodies of the association are not replaced by administrative authority in relation to the enterprises included in the association; they perform their functions on the basis of contracts.
Holding is an organization characterized by a joint stock form that uses its capital to acquire shares of other companies. The holding's assets include controlling stakes in subsidiaries. At the same time, subsidiaries cannot own shares of the holding.
The holding system includes subsidiaries or grandson companies within the parent or parent company. At the same time, the parent company has a small percentage of shares in subsidiaries and can effectively control their activities.
The positive aspects of the activity are due to the following capabilities of the holding structure:
Taking advantage of the opportunities provided by increased production and sales volumes
High efficiency in international capital flows
Amortization of negative impacts of the state on enterprises.
Financial and industrial groups offer 3 education options:
1) Based on a contractual association of private legal entities.
2) By decision of the government, with the participation of state-owned enterprises.
3) By intergovernmental agreement.
Distinctive features of FIG (financial-industrial group):
The core of the group is a financial company.
Often based on the structure of the trading house.
The participation of industrial enterprises and various sectors of the economy plays an important role.
Financial and industrial groups include 3 types of organizations:
Trading (trading houses; wholesale trade enterprises; retail stores, as well as intermediary and transport organizations)
Credit and financial organizations (commercial banks; state banks; pension funds; insurance and investment companies)
Industrial enterprises
Advantages of FIG:
1) The possibility of effective interaction between financial and industrial capital.
2) Unified pricing policy.
3) Development of production cooperation processes.
Flaw: the possibility of market monopolization.
Business unions are groups of independent companies connected by common goals. What is characteristic of an entrepreneurial union is that participation in the union does not exclude participation in other types of association; within the framework of the union, long-term relationships are established between the participants. More often, business unions are created by companies that are engaged in similar types of activities. However, it is possible to create large associations representing entrepreneurs in general.
In accordance with the civil legislation of the Russian Federation, subjects of entrepreneurial activity can be capable individuals, legal entities - commercial organizations, foreign citizens, stateless persons, foreign organizations. Non-profit organizations, fulfilling their statutory provisions, can engage in entrepreneurial activities.
Individuals - business entities In accordance with Art. 34 of the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. For the first time in the history of the country, this constitutional principle is enshrined in the Basic Law, which serves as a guarantee for citizens to engage in legal business and at the same time is a factor in the manifestation of economic freedom. However, in accordance with Art. 60 of the Constitution of the Russian Federation, a citizen of the Russian Federation can independently exercise in full his rights and obligations only from the age of 18. Consequently, from a legal point of view, legal capacity to engage in entrepreneurial activity is acquired by individuals who have reached 18 years of age at the time of state registration of their business.
Article 21 of the Civil Code of the Russian Federation states that the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them (civil capacity) arises in full with the onset of adulthood, i.e. upon reaching 18 years of age. However, the legal capacity of a citizen (the ability to have civil rights and bear responsibilities) arises at the moment of his birth and ends with death (clause 2 of article 17 of the Civil Code of the Russian Federation).
The established art. is important for the participation of citizens in business activities. 18 PS of the Russian Federation the content of their legal capacity. Thus, “citizens can have property by right of ownership; inherit and bequeath property..” Thus, an individual who has reached the age of 18 has the right to engage in entrepreneurial activities in the manner prescribed by law individually or to create legal entities. But to engage in certain types of entrepreneurial activity, a citizen must have a special higher education, receive a qualification (professional) certificate in the prescribed manner and have certain professional skills, i.e. experience gained previously over a period of time. To engage in certain types of activities, a citizen must have a document confirming the required level of physical health, not have a criminal record, and not be prohibited from engaging in certain types of activities for a period of time determined by the court.
In accordance with part one of the Civil Code of the Russian Federation, individuals under 18 years of age can enter into certain types of transactions. Thus, minors aged 14 to 18 years have the right to independently, without the consent of parents, adoptive parents and guardians:
1) manage your earnings, scholarships and other income;
3) in accordance with the law, make deposits in credit organizations and manage them;
4) make small household transactions; transactions aimed at obtaining benefits free of charge and not requiring notarization or state registration;
5) independently carry out transactions to dispose of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.
In accordance with paragraph 3 of Art. 28 of the Labor Code of the Russian Federation, property liability for transactions of a minor, including transactions made by him independently, is borne by his parents, adoptive parents or guardians, unless they prove that the obligation
was violated through no fault of theirs.
A minor who has reached the age of 16 can be declared fully capable if he works under an employment contract, including a contract, or, with the consent of his parents, adoptive parents or guardian, is engaged in entrepreneurial activities (Article 27 of the Civil Code of the Russian Federation). A minor is declared fully capable by decision of the guardianship and trusteeship authority - with the consent of both parents, adoptive parents and trustee, or in the absence of such consent - by a court decision. Parents, adoptive parents and guardians are not liable for obligations, in particular for obligations arising as a result of harm caused to them.
Minors who have reached the age of 16 can be members of production cooperatives, agricultural cooperatives, and peasant farms.
In accordance with Art. 1195 PS RF personal law of an individual is considered to be the Russian law of the country of which that person has citizenship. If a person, along with Russian citizenship, also has foreign citizenship, his personal law is Russian law. If a foreign citizen has a place of residence in the Russian Federation, his personal law is Russian law.
Civil legal capacity of an individual is determined by his personal law. In accordance with civil law, certain categories of capable citizens do not have the right to engage in entrepreneurial activities. Thus, officials of state authorities and public administration are prohibited from: engaging in independent entrepreneurial activities; own an enterprise; independently or through representatives to vote through their shares, deposits, shares, shares when making decisions at the general meeting of a business partnership and company; hold positions in the management bodies of an economic entity. Military personnel, employees of law enforcement ministries and services, such as police officers, tax authorities, and other categories of citizens do not have the right to engage in entrepreneurial activities.
A citizen (capable individual) is liable for his obligations with all the property belonging to him, with the exception of property that, in accordance with the Civil Procedure Code of the Russian Federation (Article 446), cannot be foreclosed on.
Capable individuals to carry out entrepreneurial activities can create legal entities in organizational and legal forms: limited liability companies, additional liability companies, open or closed joint-stock companies, production cooperatives (artels).
Capable individuals may engage in individual entrepreneurial activities in accordance with the procedure established by law, without creating a legal entity. v
To engage in entrepreneurial activity without forming a legal entity, a citizen must, in accordance with the procedure established by law, carry out state registration as an individual entrepreneur, obtain a certificate of inclusion in the unified state register of individual entrepreneurs and carry out other procedures (see Chapter 6).
In accordance with Art. 285 of the Criminal Code of the Russian Federation, the establishment by an official of an organization carrying out entrepreneurial activities, or participation in the management of such an organization personally or through a proxy, contrary to the prohibition established by law, if these acts are accompanied by the provision of benefits and advantages to such an organization or patronage in another form, are punishable by deprivation of the right to occupy certain positions. positions or engage in certain activities for a period of up to five years with a fine of up to 80 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to six months, or compulsory labor for a period of 180 to 240 hours, or arrest for a term of three to six months, or imprisonment for a term of up to two years
Legal entities - business entities
In accordance with Art. 48 Civil Code of the Russian Federation legal entity An organization is recognized that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, and be a plaintiff and defendant in court. Legal entities must have an independent balance sheet or estimate. A legal entity is considered created from the moment of its state registration in the prescribed manner; it 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 a charter, or a constituent agreement and charter, or only a constituent agreement.
In accordance with Art. 50 of the Civil Code of the Russian Federation, legal entities are divided into two types: commercial and non-profit organizations. Commercial is considered an organization that sets profit as the main goal of its activities. In accordance with the procedure established by law and the constituent documents, a commercial organization distributes net profit among the founders (participants). Consequently, in accordance with civil law, all commercial organizations (except for state-owned enterprises) can be considered entrepreneurial. Commercial organizations can be created in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises (for more details, see Chapter 7).
Non-profit are organizations that do not have the goal of their activities to make a profit and cannot distribute the profits received among the participants (founders). However, non-profit organizations can carry out business activities only insofar as it serves the goals for which they were created and is consistent with these goals. According to the Federal Law “On Non-Profit Organizations” dated January 12, 1996 No. 7-FZ, non-profit organizations can be created in the form of public or religious organizations (associations), non-profit partnerships, institutions, autonomous non-profit organizations, social, charitable and other funds, associations and unions, as well as in other forms provided for by federal laws. Non-profit organizations can be established to achieve social, charitable, cultural, educational, scientific and managerial goals, to protect the health of citizens, develop physical culture and sports, satisfy the spiritual and other non-material needs of citizens, protect the rights and legitimate interests of citizens and organizations, resolve disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits.
Legal organizations can create branches and representative offices that are not legal entities. They are endowed with property by the legal entity that founded them and act on the basis of the provisions approved by it. A branch is a separate division of a legal entity located outside its location and performing all of its functions, or part of them, including the functions of a representative office. The heads of branches and representative offices are appointed by the legal entity and act on the basis of its power of attorney. Representative offices and branches are indicated in the constituent documents of the legal entity that created them.
Legal entities have civil rights corresponding to the goals of their activities provided for in their constituent documents, and bear responsibilities associated with these activities. Commercial organizations, with the exception of unitary enterprises, may have civil rights and bear civil responsibilities necessary to carry out any type of activity not prohibited by law. Legal entities receive status as such from the moment of their state registration (in the prescribed manner) and entry into the unified state register of legal entities.
In accordance with Art. 1202 Civil Code of the Russian Federation personal law of a legal entity is the law of the country where the legal entity is established. Based on the personal law of a legal entity, the following are determined, in particular:
1) the status of the organization as a legal organization;
2) organizational and legal form of the legal entity;
Requirements for the name of a legal entity;
4) issues of creation, reorganization and liquidation of a legal entity, including issues of legal succession;
6) the procedure for a legal entity to acquire civil rights and assume civil responsibilities;
7) internal relations, including relations of a legal entity with its participants;
8) the ability of a legal entity to meet its obligations.
Entrepreneurs' rights
The rights of entrepreneurs, as a rule, are regulated (established) by legislation and business customs. Thus, the civil rights and obligations of entrepreneurs arise:
From contracts and other transactions provided for by law, as well as from contracts and other transactions, although not provided for by law, but not contrary to it;
From acts of state bodies and local governments, which are provided by law as the emergence of civil rights and obligations;
From a court decision establishing civil rights and obligations;
As a result of the acquisition of property on grounds permitted by law;
As a result of the creation of works of science, literature, art,
inventions and other results of intellectual activity;
Due to harm caused to another person;
Due to unjust enrichment;
Due to other actions of citizens and legal entities;
As a result of events with which the law or other legal act associates the onset of civil consequences.
Under business custom a rule of conduct that is established and widely used in any area of business activity, not provided for by law, is recognized, regardless of whether it is recorded in any document.
Under current legislation, entrepreneurs have the following rights:
Engage in any type of activity permitted by law;
Create your own business in any organizational and legal form;
Own (economically manage) any property necessary for carrying out business activities. The size of the acquired property is not limited by law. The burden of maintaining the property is borne by the owner himself;
> independently plan your activities, develop a business plan and other forms and types of planning;
Independently select consumers of products, suppliers of all factors of production;
Independently establish forms and systems of remuneration for employees, various additional forms of material incentives, but these rights must be established in the constituent documents and not contradict labor legislation;
Establish additional holidays for hired workers;
Independently involve workers in labor activities by concluding civil and labor agreements with them
contracts in accordance with labor legislation; >
Engage in foreign economic and foreign trade activities in accordance with the established procedure;
Open accounts in any banks;
Use financial and credit, property and material support and other forms of state support in accordance with the current federal legislation and laws adopted by the representative authorities of the constituent entities of the Russian Federation;
Receive state orders for the manufacture of products, performance of work and provision of services; for pension, medical and social insurance; to protect their legal rights from unlawful decisions of government bodies and officials.
Entrepreneurs as citizens have all personal property and non-property rights established by the Constitution of the Russian Federation, the Civil Code of the Russian Federation and other legislative acts.
In accordance with Art. 21 parts of the first Tax Code of the Russian Federation, entrepreneurs as taxpayers have the following rights:
Receive free information from tax authorities about current taxes and fees, legislation on taxes and fees;
Receive written clarifications from tax authorities on the application of legislation on taxes and fees;
» use tax benefits if there are grounds and in the manner prescribed by law;
Receive a deferment, installment plan, tax credit or investment tax credit in the prescribed manner;
For timely offset or refund of amounts of overpaid or overcharged taxes;
Require tax officials to comply with legislation on taxes and fees;
Do not comply with unlawful acts and demands of tax authorities and their officials that do not comply with tax legislation;
Appeal, in accordance with the established procedure, decisions of tax authorities and actions (inaction) of their officials;
Require compliance with tax secrecy;
Demand, in accordance with the established procedure, full compensation for losses caused by illegal decisions of tax authorities or illegal actions (inaction) of their officials.
Individuals as individual entrepreneurs, along with the above, have the following rights: ^ to be participants in general partnerships and general partners in limited partnerships;
Be the sole executive bodies of a joint stock company;
Be an arbitration manager in accordance with the established procedure;
Act on the organized securities market as a broker;
! ■■ engage in auditing activities;
Responsibilities of entrepreneurs
The responsibilities of entrepreneurs “■as economic entities are established by the current civil legislation, other federal laws and regulations. Entrepreneurs are obliged to:
Within the established time limits, register with the tax authority and register with the authorized bodies of state extra-budgetary social funds;
Pay taxes on time and in the amount established by law;
Timely submit to the tax authority a declaration of income, other documents and information necessary for the calculation and payment of taxes and other obligatory payments;
Maintain accounting records, prepare reports on financial and economic activities in accordance with laws and regulations, ensuring their safety for four years;
Make corrections to the financial statements in the amount of hidden or understated income identified by tax authorities;
Comply with the requirements of the tax authority to eliminate identified violations of tax legislation;
In accordance with the established procedure, obtain licenses for those video| activities, the implementation of which is possible only upon obtaining a license in accordance with federal law;
Produce products, perform work, provide services in accordance with current standards or certified;
Do not harm the environment with your activities. life and public health and consumers goods, works and services;
Create the necessary sanitary, hygienic and safe working conditions for hired workers;
In accordance with the established procedure, conclude collective agreements (agreements) with professional (worker) organizations and implement them in a timely manner;
Do not allow monopolistic activities in product markets, unfair competition, abuse of a dominant position in the market, do not enter into agreements that restrict competition;
Do not set monopolistically high or monopolistically low prices,
comply with legislation on pricing regulation;
In accordance with the established procedure, keep records of income and expenses, costs of production and sale of goods, works, services,
Conduct transactions, enter into and execute business agreements in accordance with the law;
Provide statistical reporting on the results of economic and financial activities to government agencies in a timely manner and in full.
Personal qualities of entrepreneurs
The question of what set of personal qualities an individual must have in order to become a successful entrepreneur cannot be answered unambiguously, however, the historical experience of the development of civilized entrepreneurship allows us to make some generalizations. Thus, civilized and successful entrepreneurs must have the following traits: to be honest, competent, purposeful, proactive, show leadership, respect the opinions of others, have a positive attitude towards people, constantly learn, be ready to take risks, be able to overcome environmental resistance, show persistence in achieving a goal, have a sense of responsibility and perseverance , great willpower, have a creative beginning, be hardworking and have a high efficiency, be able to attract the necessary partners, have a commercial and financial mindset, be able to legally receive what is due to him.
It is characteristic that in developed countries even government bodies give their recommendations on this problem. Thus, the US Small Business Administration believes that an entrepreneur should have
the following five most important characteristics that guarantee his success in the most risky undertaking:
1) energy, the ability to make it work;
2) the ability to think;
3) the ability to build relationships with people;
4) communication skills;
5) knowledge of engineering and technology.
The US Small Business Administration recommends that aspiring entrepreneurs, before starting their own business, give an objective assessment of their qualities and answer the following questions:
Am I starting a business myself?
How good am I with people? ,
Do I have sufficient physical strength and emotional potential to successfully conduct business?
How well do I plan and organize my affairs?
Is my desire to stick to my goal strong enough?
How will running a business affect my family? Of practical interest are studies conducted by the American firm McBer and Company with the support of the American Agency for International Development and the US National Science Foundation, which made it possible to identify 21 personal qualities that are constantly demonstrated by successful entrepreneurs. Here are the most important personal qualitative characteristics of entrepreneurs:
Search for opportunities and initiative;
Tenacity and perseverance (willing to make repeated efforts to meet a challenge or overcome an obstacle; changes strategies to achieve a goal);
Risk taking (prefers challenging or moderate risk situations; weighs risk; takes action to reduce risk or control outcomes);
Focus on efficiency and quality (finds ways to do things better, faster and cheaper; strives to achieve excellence, improve efficiency standards);
Involvement in work contacts (accepts responsibility and makes personal sacrifices to get the job done; gets to work with or instead of employees);
Determination (forms goals; has a long-term vision; sets and adjusts short-term goals);
The desire to be informed (personally summarizes information about clients, suppliers, competitors, using personal and business contacts for these purposes to keep oneself informed); *
Systematic planning and monitoring (plans by breaking large tasks into subtasks; monitors financial results and uses procedures to track work progress);
Ability to persuade and establish connections (uses careful strategies to accomplish and persuade people, as well as business contacts as a means to achieve their goals);
Independence and self-confidence (strives to be independent of the rules and control of others; relies on oneself in the face of opposition or failure; believes in one's ability to perform difficult tasks).
Of course, the above personal characteristics are not genetically acquired; they are developed by a person in the process of entrepreneurial activity and are largely determined by the personality of the individual, his aspirations, and the business environment.
Entrepreneurs are people who are able to work constantly and hard, learn from the mistakes of others, and learn lessons from their own mistakes. These are people who are confident in their abilities, so they are constantly learning, studying all the problems related to their business. Successful entrepreneurs understand that constantly expanding knowledge is the basis of entrepreneurship.
The tool, the main lever for the development of entrepreneurship, is innovation. These are brave people, but their courage is limited by the level of reasonable aspirations.
What difficulties do they face? This is a constant restructuring of your business, making changes and improvements, the ability to start over, learning to overcome the inertia and routine of the environment and other difficulties. The ability to overcome the resistance of an aggressive external environment is especially characteristic of Russian civilized entrepreneurs, which is objectively connected with the past social mentality, the underdevelopment of market relations and the vulnerability of Russian citizens from a host of officials, racketeers and robbers.
Participants at a conference on entrepreneurship, which took place in the 1990s. conducted by Stanford University, they came to the conclusion that the key role for successful entrepreneurial activity is played by the desire for perfection, as well as such qualities of an entrepreneur as impatience, reluctance to delegate anything to someone
to another, energy, the desire to work hard and also fully indulge in entertainment, the ability to highlight the essence of the problem. As we see, these are not so much qualities as the motives of behavior of entrepreneurs, which are largely related to personal characteristics.
M. Storey, assessing the traits of successful entrepreneurs heading fast-growing companies, writes that entrepreneurs work when others are sleeping, travel when others are sitting at
lunch, plan while others are having fun. They find it difficult to tell the difference between Saturday night and Tuesday afternoon. The common characteristics of all successful entrepreneurs are persistence and determination. An entrepreneur is very rarely a timid and shy person. His integral feature is the ability to take reasonable risks, but at the same time he must remember that money is not the main motivating factor of an entrepreneur. The person who sets his goal to achieve only large profits will certainly bring his company to financial collapse.
The principles that developed in Russian entrepreneurship by the beginning of the 20th century:
1Respect authority. Power is a necessary condition for effective business management. There must be order in everything. In this regard, show respect to the guardians of order in the legalized echelons of power.
Be honest and truthful. Honesty and truthfulness are the foundation of entrepreneurship, a prerequisite for healthy profits and harmonious business relationships. Respect property rights. A Russian entrepreneur is obliged to work hard for the benefit of his company. Such zeal can only be demonstrated by relying on private property.
3 Love and respect the person. Love and respect for a working person on the part of an entrepreneur generates reciprocal love and respect.
4. Be true to your word. A business man must be true to his word. “Once you lie once, who will believe you.” The success of a business largely depends on the extent to which those around you trust you.
5. Live within your means. Don't get carried away. Choose something you can handle. Always evaluate your capabilities. Act according to your means. 6. Be purposeful. Always have a clear goal in front of you. An entrepreneur needs such a goal like air. Don't get distracted by other goals. Serving “two masters” is unnatural. In an effort to achieve a cherished goal, one should not cross the boundaries of what is permitted. No value can replace moral values.
Of course, modern Russian entrepreneurs do not adhere to the above principles in their business activities, but a significant part of them are civilized and law-abiding subjects of economic relations.
The category “entrepreneurial entities” appeared in scientific circulation relatively recently. Its birth is largely due to the Law of the RSFSR of December 25, 1990 No. 445-1 “On Enterprises and Entrepreneurial Activities” (hereinafter referred to as the Law on Enterprises), in the preamble of which it was written: “The provisions of this Law are valid throughout the territory of the RSFSR in relation to to all business entities and enterprises, regardless of the form of ownership and field of activity.”
However, the said Law does not contain a definition of the concept of “business entities”. In Art. 2 provides only a list of business entities, and Art. 3 is devoted to forms of entrepreneurship. This situation is hardly accidental. The fact is that the category under consideration, despite the abundance of publications, has been studied insufficiently and even superficially.
Civil scientists (for obvious reasons) avoid using this concept in their scientific research. The science of civil law operates with such categories as “subjects of civil law”, “citizens”, “legal entity”. The question of the relationship between the concepts of “subject of civil law” and “subject of civil legal relations” is still controversial. Likewise, there is no unity of views among scientists regarding the content of the category “subject of law”.
Representatives of the science of economic (entrepreneurial) law propose to distinguish between the concepts of “subjects of entrepreneurial law” and “subjects of entrepreneurial activity”. Subjects of business law are bearers of rights and obligations in the field of implementation and regulation of business activities2. These include: individual entrepreneurs; commercial organizations; non-profit organizations engaged in business activities; public entities (state, constituent entities of the Russian Federation, municipalities). Subjects of business law are also government bodies that carry out the functions of management and regulation of business activities.
According to supporters of the concept of business law, divisions of enterprises occupy a special place among the subjects of business law. These are internal divisions (workshop, department, etc.), as well as external (separate) - representative offices and branches. This conclusion is based on the assertion that intra-company (corporate) relations are included, along with horizontal and vertical relations, in the subject matter of business law. This opinion is far from indisputable.
Among the subjects of business law are holdings, financial and industrial groups (FIGs) and other integrated structures. The latter also do not have the status of a legal entity.
Those scientists who profess the ideas of commercial law (V.F. Popondopulo, B.I. Putinsky, V.V. Rovny) base their views on the civil doctrine of persons. Thus, V.F. Popondopulo writes: “an entrepreneur is a person engaged in entrepreneurial activity. The fact that a person carries out entrepreneurial activity is the basis for recognizing him as a subject of civil law - an entrepreneur and determines the need for special requirements to be presented to him and his activities by the legislator.” The circle of entrepreneurs is strictly limited: these are individuals and legal entities (primarily commercial organizations).
In our opinion, business entities- these are, first of all, individual entrepreneurs and commercial organizations whose main goal is to make a profit. Further, among them it is necessary to name non-profit organizations that carry out entrepreneurial activities only insofar as this serves to achieve the goals for which they were created (clause 3 of Article 50 of the Civil Code).
At the same time, we note that the specified classification of legal entities into commercial and non-profit organizations, taking into account such criteria as commercial orientation, causes significant difficulties in practice. In reality, it is sometimes impossible to distinguish between the main purpose of an activity and the non-main one. Thus, many non-profit organizations do not formally pursue profit-making as their main goal, but in fact strive and receive huge income from entrepreneurial activities.
Business entities are collective entities that do not have the status of a legal entity. These include financial and industrial groups, holdings, etc.
The status of financial industrial groups (holdings) is very indicative: it is unacceptable to reduce all collective entities to the civil legal category of “legal entity”. Subjects of law, including civil law, can be entities that do not have the characteristics of a legal entity.
From the point of view of civil legislation (Article 55 of the Civil Code), representative offices and branches are not legal entities, and therefore cannot act as bearers of the corresponding rights and obligations. The heads of representative offices and branches act on behalf of a legal entity on the basis of its power of attorney.
At the same time, representative offices and branches are endowed with the property of the legal entity that created them. Moreover, the property of representative offices and branches is reflected on a separate (separate) balance sheet. The problem of proprietary ownership of the property assigned to the representative office and branch arises. The Civil Code maintains a “vow of silence” on this matter.
Article 216 provides a non-exhaustive list of real rights. In particular, the Code lists (in addition to real rights associated with the ownership of land plots, rights of economic management and operational management) other real rights, for example, the right to use residential premises of members of the owner’s family.
Another question: representative offices and branches have the right to have current, settlement and other accounts with credit institutions. In this case, the head of the representative office (branch) exercises the functions of managing funds on the basis of the issued power of attorney.
And finally, by virtue of paragraph 5 of Art. 36 of the APC “a claim against a legal entity arising from the activities of its separate division is brought at the location of the separate division.” However, in these cases, a party to the case is a legal entity, the recovery is made by the court from it or in favor of it. A representative office and a branch, not having the characteristics of a legal entity (Article 48 of the Civil Code), are not a procedural party in court.
Previous tax legislation considered representative offices and branches as payers of income taxes, i.e., subjects of tax law. With the adoption of the new Tax Code of the Russian Federation (Article 19), the situation has changed: branches and representative offices of Russian organizations fulfill the latter’s responsibilities for paying taxes and fees at the location of the branches (representative offices).
The legal status of representative offices and branches in the context of the Tax Code of the Russian Federation creates additional difficulties in the interpretation and application of Art. 19 NK. On the one hand, the Tax Code establishes that branches and other separate divisions of Russian organizations fulfill, in the manner prescribed by the Code, the duties of these organizations; on the other hand, the Code does not contain any rules regarding such an order. There are other practical difficulties.
So, branches and representative offices are business entities. However, we do not share the opinion that internal structural units (workshop, department) of a commercial organization can also be classified as business entities.
Public entities, as well as state and local authorities, cannot engage in entrepreneurial activities. This statement is sometimes disputed in the legal literature. Thus, S. E. Zhilinsky considers public entities as subjects of civil law and subjects of entrepreneurial activity.
In his opinion, there are three areas of entrepreneurial activity with the participation of public entities:
- participation in entrepreneurship through created commercial and non-profit organizations (for example, unitary enterprises);
- participation in the affairs of privatized state and municipal property;
- engaging in entrepreneurial activities directly by state and local government bodies themselves.
In the latter case, an example is given: by virtue of Art. 7 of the Federal Law of July 21, 1997 No. 12E-FZ “On the privatization of state property and on the principles of privatization of state property in the Russian Federation”, the body for managing state property on behalf of the Russian Federation is the founder of open joint-stock companies created in the process of privatization and carries out rights of a shareholder (participant) of business companies whose shares (shares in the authorized capital) are in federal ownership. We cannot agree with such conclusions.
Here there is a confusion of two different but intersecting concepts - “subjects of civil law” and “subjects of business activity”. Public entities are indeed subjects of civil law (Chapter 5 of the Civil Code). In accordance with sp. 2 tbsp. 124 of the Civil Code, public entities are subject to the rules defining the participation of legal entities in relations regulated by civil law, unless otherwise follows from the law or the characteristics of these entities. In this case, the relevant state authorities and local governments act on behalf of public entities (Article 125 of the Civil Code).
To be a subject of entrepreneurial activity means that the state, constituent entities of the Federation and municipalities must engage in entrepreneurial activity on a professional and permanent basis in order to systematically receive profit from the sale of products (performance of work, provision of services). The participation of public entities in economic activity through the creation of commercial and non-profit organizations (as well as participation in the affairs of privatized state and municipal property) cannot, in our opinion, be assessed as participation in entrepreneurship.
Shareholders, while participating in the general meeting of the company and receiving dividends on shares, do not directly carry out entrepreneurial activities. The status of a shareholder, his rights and obligations are defined in the Law on Joint Stock Companies.
The above equally applies to the founders (participants) of limited liability companies (LLC). A member of an LLC and an entrepreneur are not the same thing.
The conclusion about the impossibility of public entities to engage in entrepreneurial activities follows from the provisions of the Constitution of the Russian Federation. Thus, in the ruling of the Constitutional Court of the Russian Federation dated October 1, 1998 No. 145-0 “At the request of the Legislative Assembly of the Nizhny Novgorod Region to verify the constitutionality of part one of Article 6 of the RSFSR Code of Administrative Offenses” the following legal position is formulated: “Within the meaning of the Constitution of the Russian Federation (Article 34, part 1) one and the same person cannot combine power activities in the sphere of state and municipal administration and entrepreneurial activities aimed at systematically generating profit.”
The definition also notes that constitutional norms predetermine the special nature of the legal capacity of public legal entities: the Russian Federation, its subjects, municipalities participate in civil legal relations as subjects with special legal capacity, which, due to their public legal nature, does not coincide with the legal capacity of others subjects of civil law - citizens and legal entities.
Therefore, they (public entities) cannot, in the opinion of the Constitutional Court of the Russian Federation, act as trustees, since such activities involve receiving remuneration and submitting reports to the founder of the trust management (Articles 1018 and 1023 of the Civil Code), which contradicts the public legal nature of these formations.
The public legal nature of the state, subjects of the Federation and municipalities is stated in the ruling of the Constitutional Court of the Russian Federation dated December 4, 1997 No. 139-0 “On the refusal to accept for consideration the request of the Federation Council to verify the constitutionality of the Federal Law “On Bills of Exchange and Promissory Notes” .
This constitutional provision has been developed in current legislation. In particular, Federal Law No. 135-FZ of July 26, 2006 “On the Protection of Competition” (clause 3 of Article 15) prohibits combining the functions of federal executive authorities, executive authorities of constituent entities of the Federation, local governments with the functions of economic entities, as well as vesting economic entities with the functions and rights of these bodies.
Russian legislation prohibits state authorities and local governments from engaging in entrepreneurial activities, i.e., being subjects of entrepreneurial activity. Moreover, a number of federal laws on business entities contain a ban on the participation of state bodies and local governments as founders of a company, unless otherwise provided by federal laws.
There is a ban on combining entrepreneurship with the functions of civil servants. Law of the Russian Federation of July 31, 1995 No. 119-FZ “On the Fundamentals of the Civil Service of the Russian Federation” (Article 11) provides that a civil servant does not have the right to engage in business activities personally or through proxies. The corresponding legal prohibitions are contained, for example, in federal laws of January 10, 1996 No. 5-FZ “On Foreign Intelligence” (Article 18) (as amended on August 22, 2004 No. 122-FZ), dated April 18, 1991 No. 1026-1 “On the Police” (Article 20) (as amended on December 18, 2006 No. 232-FZ), etc.
And in conclusion, a few words about the relationship between the concepts of “entrepreneurial entities” and “economic entities”. In our opinion, these are not coinciding concepts. They relate to each other in the same way as economic (economic) and entrepreneurial activities relate. Business entities do not always acquire the status of entrepreneurs. For example, non-profit organizations, as a rule, do not engage in entrepreneurship, although they carry out economic activities.
As already noted, in accordance with Art. 11 of the Law on the Securities Market, a stock exchange can be created in the form of a non-profit partnership and does not pursue the goal of generating its own profit. Exchange activities cannot be classified as either charitable, socio-cultural, etc. Therefore, the term “economic activity” should be used here.
In the process of entrepreneurial activity, people and organizations inevitably enter into some kind of relationship with each other. If the rules of behavior (“game”) in these relations are regulated (established) by the rules of law, then these relations are called legal relations. The largest set of legal norms regulating entrepreneurship is civil law. But entrepreneurship is regulated by tax, administrative, criminal, and other branches of law. Civil legal relations are when they are relations between equal entities that are not subordinate to one another, and the relations arise regarding property and related objects (see for more details Shevchuk D.A. Creating your own company: A professional approach. - M.: GrossMedia: ROSBUKH , 2007).
Participants and subjects of civil legal relations are:
· individuals (citizens);
· legal entities;
· state – Russian Federation, constituent entities of the Russian Federation (republics, territories, regions), municipalities.
Let us make some classification of these subjects from the point of view of entrepreneurship problems.
1. Citizens can be divided into two groups:
a) just citizens;
b) citizens – individual entrepreneurs:
2. Legal entities, i.e. ORGANIZATIONS WITH CERTAIN CHARACTERISTICS (property, liability, rights, etc.), can be divided into two large groups:
a) commercial organizations;
b) non-profit organizations.
You should immediately dot the “i”: both commercial and almost all non-profit organizations have the RIGHT to engage in entrepreneurial activities.
Unfortunately, the term “Organization” does not have a legally defined definition. It is important for us to note that not all organizations can engage in entrepreneurial activities, enter into transactions and enter into contracts.
Any legal entity has the right to create branches, divisions, and representative offices. These are also organizations, but they are not legal entities and do not have the right to enter into transactions with anyone. They can enter into transactions only on behalf of a legal entity or citizen under their power of attorney. Public non-profit organizations can also be created without the status of a legal entity, and also cannot enter into transactions on their own behalf.
In practice, this must be taken very seriously, since any transaction, any agreement concluded with a non-legal entity is invalid.
The classification of state entities is indicated above and it remains to be noted that the possibility of engaging in entrepreneurial activity is determined by the laws and charters (regulations) of these entities.
It is characteristic, for example, that the Government of the Russian Federation is not a legal entity and cannot act as a defendant in court, i.e., it is not subject to jurisdiction.
Thus, business entities are:
· citizen-entrepreneurs;
· organizations – legal entities;
· sometimes the state, represented by its bodies.
The main legal requirements for a business organization are as follows.
With the adoption of the Law “On Enterprises and Entrepreneurial Activities” in 1991, the term “enterprise” became synonymous with an economic entity of any organizational and legal form. The new Civil Code, in force since 1994, clarified this concept. Now the term “enterprise” is understood either as a generalized concept, which includes, for example, a plant, factory, poultry farm (i.e., a complex of property, intellectual, human resources), or as economic entities of specific organizational and legal forms, having the right of economic management or operational management of the property they own (state and municipal enterprises, state-owned enterprises).
The general term denoting an independent economic entity is a legal entity. Article 48 of the Civil Code of the Russian Federation defines a legal entity:
“A legal entity is recognized as an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and defendant in court.”
Let's take a closer look at this definition.
As is clear from the text of this article, a legal entity is something that has four characteristics:
· organizational structure;
· presence of separate property;
· able to acquire and exercise rights on its own behalf;
· able to be a defendant and plaintiff in court.
Typically, the concept of a legal entity is depicted as follows:
But the question arises - where does everything come from?
For example. If I and two comrades have decided that we are creating an organization in which I will be the main one and I have 100 rubles for the organization’s expenses, then who and how will decide whether this organization will be responsible for their obligations? Can she speak in court? Can she make deals?
Who gives the answers to these questions? Who decides all this? How and in what way?
The whole point is that organizations A) wishing to become a legal entity must of their own free will acquire the first two features: organizational unity (it follows and is determined by what the founders write down in the charter) + property independence (through the authorized capital, fund, estimate or obligation, the presence of which is proven by the decision and actions of the founders on their formation), B) becoming legal person as a result of state registration of an organization by the will of the law acquires the remaining signs: the right to enter into transactions, the right to be a plaintiff...
Therefore, the process of the emergence of a legal entity can be depicted by the following more visual diagram:
The term “organization” assumes that a legal entity has a certain structure, and this, in turn, provides for the presence of an authorized management body with one or another competence, established rules for relationships within the organization and interaction of the organization with external entities. That is why the law provides for clearly defined forms of organizations and the content of their constituent documents.
An organization will acquire the status of a legal entity if it has property independence and isolation. On the one hand, it is not liable for the debts of its founders (participants); on the other hand, the founders (as a rule) are not liable for the debts of a legal entity (subsidiary, additional liability of the founders for the debts of the organization arises only if they are guilty of bankruptcy, and this special conversation).
An organization, as a legal entity, must be liable for its debts with its own property. And the more any form of organization is connected with property activities, the more strictly property independence must be defined. If for a public organization the law simply provides for the ownership of property, then for commercial organizations the minimum amount of compulsory property - the authorized capital - and the procedure for its regular restoration are determined.
And, finally, if an organization has the indicated characteristics, it, as a legal entity, acquires the opportunity on its own behalf to act in the field of civil transactions, that is, to enter into transactions, to be a plaintiff and defendant in court.
Naturally, the organization must undergo state registration, during which the presence of the necessary signs is identified and confirmed, including seemingly secondary ones (the presence of its own name, the presence of an address, etc.). After all, for example, a public organization can be created and function without state registration, but it will receive the rights of a legal entity only after state registration.
Thus, the definition of a legal entity contains two requirements for an organization, one procedural requirement (registration) and the rights arising from its status - the last two features (see more details Shevchuk D.A. Creating your own company: A professional approach. - M.: GrossMedia : ROSBUKH, 2007).
The presence of all these signs of a legal entity in an organization must be enshrined in the constituent documents (constituent agreement, charter).
According to Deputy General Director of INTERFINANCE Denis Shevchuk, despite the edifying insistence with which we prove the difference between the term “enterprise” and the concept of “legal entity,” most legal documents still widely use the list of “enterprises, organizations, institutions” in cases where refers to a legal entity. Therefore, we will use the terms synonymously: enterprise, organization, firm (depending on the terms used in the relevant regulatory documents), meaning by them an organization as a legal entity (see more details Shevchuk D.A. Creating your own company: A professional approach . – M.: GrossMedia: ROSBUKH, 2007).
Memo: all issues discussed in this chapter are regulated by the Civil Code of the Russian Federation, Chapter 2, paragraphs 1–5.
Classification, that is, dividing a certain mass of objects or phenomena into parts, must, as is known, be carried out in compliance with three rules:
· unity of the basis of division (it is impossible to divide films into interesting, color and foreign ones);
· completeness of division (you cannot divide people into blondes and brunettes - brown-haired and bald people will remain “restless”);
· the significance of the basis of division (if we are interested in the carrying capacity of the vessel, then we should not classify ships according to whether their captain is single or married).
Remembering these rules, let us classify organizations of legal entities on three grounds.
A) Based on whether the main goal of creating and operating a legal entity is the intention to make a profit, they are all divided into two groups:
· commercial organizations that can be created in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises;
· non-profit organizations that can be created in the form of consumer cooperatives, public or religious organizations (associations), owner-financed institutions, charitable and other funds, as well as in other forms provided by law.
B) By the type of rights that the founders (participants, shareholders) have in relation to the legal entity, all legal entities are divided into three groups:
· legal entities in respect of which their participants have rights of obligations (business partnerships and societies, production and consumer cooperatives, non-profit partnerships, autonomous non-profit organizations);
· legal entities to whose property their founders have ownership or other proprietary rights (state and municipal unitary enterprises, including subsidiaries, as well as owner-financed institutions);
· legal entities in respect of which their founders (participants) do not have property rights (public and religious organizations (associations), charitable and other foundations, associations of legal entities (associations and unions).
For clarity, we present the second classification in the form of a diagram:
It should be remembered: the founders of business companies and partnerships are not their owners or owners. This is their brainchild, but not part of them! The presence of a share in the authorized capital only determines that a legal entity owes something to its founder. The founder cannot arbitrarily take away property from a legal entity.
The Law of the RSFSR “On Enterprises and Entrepreneurial Activities” contained a certain paradox: the enterprise, on the one hand, was the owner of its property, but its founders were considered the owner of the enterprise. Therefore, the property of the enterprise had, as it were, two owners at two levels: the enterprise itself and its founders.
This paradox was eliminated by the Civil Code of the Russian Federation.
B) According to the organizational and legal form (OPF) legal entities are divided into:
commercial organizations
1. Business partnerships and companies, including:
· general partnerships;
limited partnerships;
· limited liability companies;
· additional liability companies;
· joint-stock (closed and open) companies.
2. Production cooperatives.
3. Unitary enterprises:
· state;
· municipal;
· state-owned.
non-profit organizations
1. Public associations:
· organizations;
· institutions;
· movements;
· public initiative bodies;
· unions of public associations.
2. Religious organizations.
4. Non-profit partnerships.
5. Institutions.
6. Autonomous non-profit organizations.
7. Associations (unions).
8. Consumer cooperatives.
9. Homeowners' associations.
Unlike commercial organizations, the list of non-profit organizations is open, i.e. federal laws may provide for their other organizational and legal forms.
It is impossible, in our opinion, to classify subsidiaries and dependent business companies as a special organizational and legal form, since they are created in one of the specified OPFs and differ only in the degree of dependence on other organizations.
It should also be recalled once again that any legal entity has the right to form representative offices, branches, branches, workshops, but without the status of a legal entity and without the right to be a party to a transaction on its own behalf.
General remarks
To understand the essence and basis of the differences between commercial organizations, one should recall the history of the emergence and development of entrepreneurial activity.
At first, the artisan, the merchant, relying on his subsistence economy and property, using his abilities, produced goods.
Then, due to the expansion of market needs and the need for cooperation, the artisan and trader began to unite with their colleagues, combining not so much capital as labor resources (personal and hired).
As such associations developed and their size increased, they began to unite not so much labor as capital.
This process can be characterized by the following graph:
This graph shows the ratio of labor and capital combined in various forms of business organizations. Obviously, the less importance is attached to the labor contributions of the participants, the more developed the form of association that the participants can use.
From the graph it becomes clear why the participants in a general partnership only enter into an agreement, and the shareholders only approve the charter: in a joint stock company, only capital is pooled and there is no particular need to regulate the relations of shareholders among themselves.
This schedule also reflects the responsibility of the participants for the debts (obligations) of the organization they created.
Business partnerships differ from business societies in that partnerships unite persons (individuals and/or legal entities), and companies unite capital. This means that participants in societies MAY not participate in its activities, but participants in partnerships MUST participate.
From this, as well as from the fact that participants in partnerships bear full responsibility for the debts (obligations) of the partnership, it follows that there is a prohibition on the participation of one person in several partnerships.
Only individual entrepreneurs can be citizens-participants of partnerships.
It should be noted that the legislation uses three terms to define participants in partnerships and companies: founder, participant, shareholder. The founder is a participant recorded in the constituent documents during the state registration of the organization, and the features of his status, as a rule, disappear after registration. Participant - an individual or legal entity that has a share, a share of the authorized capital of a partnership or company. A shareholder is a participant in a joint stock company.
Basic rights and obligations of participants in partnerships and companies
Essential characteristics of organizational and legal forms of commercial organizations.
General partnership
A form that is practically not used in Russia. A general partnership assumes full joint liability of the founders (participants) for the obligations of the partnership with ALL their property and belongings. With joint and several liability of debtors, any creditor has the right to collect debts from any debtor in full (and the joint and several debtors will then deal with each other).
But in conditions of legal instability, tax and administrative lawlessness, it is undesirable to put all your property at risk of bankruptcy.
If you encounter a general partnership as a counterparty, then this should alert you! Most quickly, when you check, you will find a fictitious partnership that is trying to tempt you into a dubious deal with the form of such serious responsibility.
Participants in a general partnership are individual entrepreneurs or legal entities who have pooled their efforts and capital to conduct joint business activities.
The law does not establish a minimum amount of the share capital of a general partnership, since creditors, if this capital is insufficient, foreclose on all the property of the partnership participants.
Conducting partnership affairs (management, concluding transactions) is possible in several options:
· each participant himself enters into transactions for which everyone is responsible;
· all transactions are concluded by unanimous decision of the participants;
· all transactions are concluded by decision of the participants, adopted by a majority of votes;
· one or some participants can enter into transactions;
· a combination of these methods depending on the type and scale of the transaction.
Limited partnership
The main external difference between this form of organization and a general partnership is that it has two types of participants.
Some participants bear full (unlimited) liability and have the right to manage the partnership, other participants-investors (limited partners) simply invest their capital in the partnership, have the right to receive profits, but are not liable for the obligations of the partnership (except for the risk of loss of investment) and do not participate in business management. The investors do not even sign the memorandum of association creating this partnership. The investor may not be an individual entrepreneur.
This form is transitional from partnerships to companies, firstly, in terms of the degree of responsibility: from full liability for the first type of participants to the limited liability of participant-investors, and, secondly, in terms of the degree of participation: from personal participation to capital participation (see. more details Shevchuk D.A. Creating your own company: A professional approach. - M.: GrossMedia: ROSBUKH, 2007).
It also combines the serious advantages of partnerships and societies. The issuer - the capital investor - takes less risk if the manager(s) bear full responsibility.
Limited Liability Company (LLC)
A form of capital pooling, combined with the possibility of personal participation in the activities of the organization. That is why LLC is the most common form.
This organizational form requires the creation of management bodies, and therefore the development of a charter regulating the internal and external activities of the company.
The management system is at least two-level: the general meeting of participants and the executive body. A collective executive body (board, directorate) is possible, but there must be an official acting on behalf of the organization without a power of attorney, on the basis of official authority.
Participants are liable to the extent of their contributions to the authorized capital, but there is an exception to this rule.
According to Article 56 of the Civil Code, “if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions, on such persons in case of insufficiency of the legal entity’s property, subsidiary liability for its obligations may be imposed.” Vicarious liability is one in which, in the absence of sufficient property of a legal entity, the debtors' claims are made against the participants, and they pay with their property (see more details Shevchuk D.A. Creating your own company: A professional approach. - M.: GrossMedia: ROSBUKH, 2007).
Additional liability company (ALC)
It differs from a limited liability company in that the participants are liable not only within the authorized capital, but also in addition to a certain amount that is a multiple of the authorized capital. For example, the authorized capital of an ALC is 10 million rubles. The charter stipulates that the company bears additional liability in the amount of five times. This means that if the company’s property is insufficient, creditors can receive 50 million rubles from the participants, and from any of them, since the participants are jointly and severally liable.
Joint Stock Company (JSC)
The most detailed legislatively regulated form of organization, since in addition to the Civil Code, the Law of the Russian Federation “On Joint-Stock Companies” is in force.
The essence of creating a joint-stock company is the founder’s announcement of the creation of a joint-stock company, i.e. the issuance of securities (shares) for sale, and an offer to a certain or indefinite circle of persons to buy these securities, thereby forming the authorized capital.
This is how a joint stock company differs from an LLC, during the creation of which the contributions (contributions) of all founders are clearly defined and there is no assumption in the charter that the authorized capital CAN increase to a certain amount.
The next difference from an LLC is that in a limited liability company there is the possibility of “withdrawing” from the membership with the withdrawal of one’s share of the property. In a joint-stock company, this cannot be possible, because when “entering” the company, the participant (shareholder) did not contribute property, but bought shares. Accordingly, he, as the owner of the securities, has the right to sell them to someone who wants to buy them, but does not have the right to demand that the company return to him the property (or its value) of the company. This provision prevents the risk of undermining the viability and capacity of the society if participants leave.
Another difference between an LLC and a JSC is that in a joint-stock company there is always the possibility of alienating shares to third parties (not shareholders), and the charter of an LLC may contain a ban on the alienation of shares to third parties. To compensate for this limitation, as already noted, a participant in an LLC may, upon exit, demand the value of his share of property from the company.
The Law of the Russian Federation “On Joint-Stock Companies” has quite seriously changed the legislation regulating this form of organization.
On the one hand, the law quite thoroughly spells out guarantees and mechanisms for protecting the rights of shareholders, regardless of the size of the block of shares they own (For example, the right of a shareholder to sell his shares to the company if he disagrees with the decision of the general meeting, detailed regulation of the procedure for preparing and holding a general meeting, etc. .d.).
According to the Deputy General Director of INTERFINANCE Shevchuk Denis, measures are provided to protect the management of the organization from the interference of incompetent shareholders when resolving private production issues, from the possibility of making decisions that bring short-term income and undermine the development of production (For example, limiting the competence of the general meeting to a range of strategic issues, restrictions on payment of dividends, consideration at a meeting of a number of issues only on the recommendation of the Board of Directors, etc.).
Producer cooperatives
A production cooperative is recognized as a voluntary association of citizens (participation of legal entities is also allowed) on the basis of membership for joint production or other economic activities based on their personal labor and other participation and the association of property shares by its members (participants).
As a rule, membership in a cooperative is based on personal labor, the payment of a property contribution determined by the charter, the equality of each member (each has only one vote), and the dependence of income on labor participation. Members of a cooperative are not entrepreneurs (as in partnerships).
Members of a cooperative bear subsidiary liability for the obligations of the cooperative in the amount and in the manner prescribed by the law on production cooperatives and the charter of the cooperative (Article 107 of the Civil Code of the Russian Federation).
State and municipal unitary enterprises
The main feature of these forms is that they are not the owners of their property. The state or municipalities transfer property to these enterprises on the right of economic management, i.e., with restrictions on the right to dispose (transfer, alienate) property. Therefore, when determining the status of these enterprises and their powers when concluding transactions, it is necessary to take into account the rules (standards) of Article 294–300 of the Civil Code of the Russian Federation.
The term “unitary” in the name of these enterprises determines the indivisibility of their property, i.e., the complete absence of the possibility of dividing the authorized capital into shares, shares, etc. Therefore, it is impossible for other legal entities or individuals to “take part” or receive a share in such an enterprise. By the way, the term “authorized capital” in these enterprises has been transformed into “authorized capital”.
A state unitary enterprise differs from its counterparts in that it is based on property that is federally owned, and in that the property is transferred to operational management, and not to economic management. It follows from this that the owner - the Russian Federation - is responsible for the debts of a state-owned enterprise, while the owner of a state and municipal enterprise is not responsible for its debts.
Unlike most commercial organizations, enterprises have special rather than general legal capacity. The consequence of this is that the owner of the property, approving the charter of the enterprise, establishes the goals of its creation and the subject of its activities. Transactions that are concluded in violation of the subject of the activity are void (Article 168 of the Civil Code of the Russian Federation).
It would be useful to note that the indication of the subject of activity in the constituent documents of commercial organizations with general legal capacity is not necessary, and the absence of such a list cannot serve as a basis for any restrictions on their economic independence (see more details Shevchuk D.A. Creating your own company: Professional approach. - M.: GrossMedia: ROSBUKH, 2007).
Essential characteristics of organizational and legal forms of non-profit organizations
Public and religious associations
Citizens (and only they) have the right to organize public associations in various forms (organizations, institutions, movements, foundations, public initiative bodies, unions of public associations) to satisfy any needs. These organizations are authorized to conduct business activities consistent with the goals of creating the organization. Therefore, if there is a need to use this form to conduct business, you should carefully formulate the goals of the organization in order to combine the subject of entrepreneurship with these goals.
Funds
The main difference between a foundation and other forms is that the founders of the foundation, after its establishment and registration, lose all rights to the foundation and its property. The fund exists on its own and is governed by a board of trustees. The foundation can engage in entrepreneurship only through the business companies it creates.
Nonprofit partnerships
A completely new form. The association of members' property is similar to a limited liability company, but the members of the partnership have the right, upon leaving or expulsion from the partnership, to receive the contributed property or its value.
Establishment
An organization fully or partially financed by the founder - the owner of the institution’s property. The founder is liable for the obligations of the institution if the latter has insufficient funds (and not property). The founder can be a citizen or a legal entity.
The law does not specify how many founders there can be. The term "owner" is used. Therefore, a collective founder-owner (several owners owning shared or joint property) is not excluded.
Autonomous non-profit organization
A hybrid of a foundation and a non-profit partnership. There is no membership, property is not returned to the founders, management is carried out by an autonomous (independent of the founders) body. But she has the right to entrepreneurship.
Association (union)
This organization unites only legal entities. Members of the association bear subsidiary liability for its debts even for two years after leaving the association. Does not have the right to do business.
Consumer cooperative
The most familiar form to everyone (ZHSK, GSK, etc.). Its exotic variety is consumer cooperation (a vestige of “consumer unions”), which, in accordance with the 1992 Law, is a “society of shareholders.”
Members of the cooperative are annually required to cover any losses incurred with their contributions.
Homeowners' Associations
Similar to a housing construction cooperative, but after construction is completed. Designed to organize public utilities for privately owned housing stock. In the process of communal reform it can become a very common form.
Summary comparative tables of characteristics of organizations
General definition of commercial organizations:
· organization – legal entity
The main goal is to make a profit
· possibility of distribution of profits between participants.
Types of commercial organizations
A) Business partnerships
1. general partnership
2. partnership of faith
B) Business companies
3. limited liability
4. with additional responsibility
5. joint stock closed and open
B) Production cooperatives
D) State and municipal unitary enterprises
General definition of non-profit organizations:
· organization;
· the main goal is not to make a profit;
· does not distribute the profit received among participants.
Possible goals of non-profit organizations:
– social
– cultural
– educational
– managerial
– charitable
– satisfaction of spiritual and other needs
– protection of the rights and interests of citizens
– scientific
– dispute resolution
– provision of legal assistance
– health protection
– achievement of other societies, benefits
– development of physical education and sports
Forms of non-profit organizations:
1 public organizations
2 religious organizations
4 non-profit partnerships
5 institutions
6 autonomous non-profit organization
7 association (union)
8 consumer cooperative
9 homeowners associations.
In addition to legal entities, subjects of entrepreneurial activity are individuals: citizens of the country, foreigners, stateless persons.
Naturally, individuals can become entrepreneurs only after obtaining full legal capacity - after 18 years.
There are two names for such entrepreneurs: an individual entrepreneur and a more clumsy name - an entrepreneur without the formation of a legal entity (PBOYUL).
In civil legislation, the name “individual entrepreneur” (IP) is used. But until December 8, 1994, there was an OPF - an individual private enterprise (IPE). Since an individual private entrepreneur and an individual private enterprise are too similar and do not differ in abbreviation, the tax authorities began to use the abbreviation PBOYUL, then individual entrepreneur.
The Civil Code defines that an entrepreneur is a person who, at his own risk, carries out activities aimed at systematically generating profit, registered in the prescribed manner.
Based on this definition, it would seem that one can engage in activities aimed at generating income (rather than profit), “forgetting” to register in the prescribed manner, and as a result, not have the status of an entrepreneur and not pay the appropriate taxes.
But the Civil Code specifies that this applies to transactions made by an individual. not registered as an entrepreneur, the court may apply the rules established for entrepreneurial transactions if they are entrepreneurial in essence and orientation.
Moreover, the Tax Code of the Russian Federation established that entrepreneurship is an activity aimed at generating income (and not just profit), and a person engaged in business without registration is subject to taxation, like a registered entrepreneur.
State registration of an individual entrepreneur with the justice authorities is carried out at the place of his residence (stay), and he is also registered for tax purposes there. If he carries out his activities not at his place of residence, then he is registered with the tax office at the place of his activities.
The registration process takes 3–4 days. To do this, he fills out an application indicating the types of future entrepreneurial activity, provides two photographs and pays a registration fee. After registration, an individual entrepreneur is registered with the tax office, where he is instructed about the basic rules and procedures of taxation.
The accounting system of an individual entrepreneur is extremely simplified, tax accounting (derived from accounting) is also simplified.
In Russia, the attitude towards individual entrepreneurs is still preserved as a representative of not even a small business, but a small business. This attitude is natural, since few people know that behind the rapidly promoted trademarks in television advertising, there is often not a corporation, not a holding company, but a modest individual entrepreneur with multimillion-dollar turnover.
Abroad, the attitude towards individual entrepreneurs is completely different. There, it is considered more reliable to deal not with a corporation, not with a company whose loud name does not know what is hidden, but with a specific person - an entrepreneur.
The most important thing that distinguishes an individual entrepreneur from the most common commercial organizations is the full liability of the individual entrepreneur for debts (obligations) incurred in the course of business activities. This difference has both positive and negative aspects when choosing the status of a business entity.
Full responsibility of an individual entrepreneur is an attractive characteristic for counterparties and creditors, since the individual entrepreneur is forced to be scrupulous in complying with obligations (unless the entrepreneur is a “fake” homeless person). But even a normal businessman is not very interested in bearing full responsibility, even taking into account the simplified accounting and tax accounting procedures.
Solving the problem of creating an entrepreneurial organization is consonant with solving any problem and, therefore, in a generalized form is a process of understanding the need, defining a goal, setting tasks, developing options for solving problems, making decisions (i.e. choosing the optimal combination of solution options), ensuring the execution of tasks and evaluation of results.
Accordingly, the main stages of creating a business structure develop:
General understanding of the idea of offering goods (services, works) to the market.
Reflection must be based on an assessment of available resources. Even if there is a complete lack of material, technological, financial and human resources, this does not mean the collapse of your enterprise (in the sense of an “undertaking”). The presence of your organizational resources and entrepreneurial talent can compensate for the lack of many reserves!
Development of business plan options for the future production of goods (services, works).
A business plan in a market environment, as you know, begins not with what you can give, but with what the consumer wants to take, with market demand.
Designing the organizational and legal form of a business structure
Based on the business plan, i.e., from the draft CONTENT of future business activity, you can design the organizational and legal form of the business structure.
The process of designing the organizational and legal form of a business structure is as follows:
a) Assessment of resources and options
The availability and need for qualified personnel, as well as the required degree of their involvement (partnership, cooperation), should be assessed.
It is necessary to find out and compare the financial costs of creating an enterprise organization and organizing individual entrepreneurial activities, as well as determine sources of financing.
It is useful to determine whether future counterparties agree to work with an individual entrepreneur or would prefer an organization.
Clarify what production and management structures are provided for in the business plan.
Reflect on your sense of leadership and determine your place in the management of the organization.
Analyze the need to create your own organization or register a relatively autonomous branch, branch of an already functioning legal entity, as well as the need to create branches and divisions for an independent organization.
Identify the possibility of using one of the forms of non-profit organizations for your business activity.
b) Decision making
Determine whether a for-profit or non-profit organization is being created. Choose a legal form for it. Develop a diagram of the organization's management system. Establish the place (city, region) of state registration.
What determines the choice of the organizational and legal form of a future company? We list the main factors:
· number of founders;
· the degree of trust of the founders in each other from the moment of creation and during the development of the company (both in case of failure and (especially) in case of success);
· the amount of liability of the founders to the creditors of the company;
· risk associated with the withdrawal of a participant from the LLC;
· period of activity of the company;
· the possibility of changing the composition of founders (participants, shareholders);
· the need to form an authorized capital greater than the minimum required by law;
· relations of counterparties, creditors, consumers to various OPFs;
· availability of the necessary funds to create a company of a certain OPF;
· the possibility of replacing payment for services (in a commercial organization) with contributions from participants in a non-profit organization. For example, not payment for cosmetic services, but membership fees for the elite club “Vasyukovskaya Beauty”;
· optimal taxation system (this will become clear upon completion of training).
c) Ensuring the creation of an organization
1. Prepare the following data (technical specifications) for the developer of constituent documents:
· name and legal form;
· location of the governing body (“legal address”);
· amount of authorized capital;
· distribution of authorized capital between the founders;
· procedure for forming the authorized capital (who, what, when);
· organization management scheme, competence of management bodies;
· data of the founders (passport, certificate of registration of a legal entity);
· determine the order of relationships between the founders and indicate this order in the application (technical specifications for the design of the organization).
2. Select a law firm for state registration and place an order with it.
You should not trust a company that “stamps” standard constituent documents. And in the law “On LLC”, and in the law “On JSC”, and in the law “On Non-Profit Organizations” there are a huge number of provisions that have options. The choice of a specific option depends on many conditions of your activity, and the success of your activity depends on the correct choice. The list of such options for LLC is three pages of neat text, for JSC – eight pages.
Typically, a law firm does not inform its clients about the possibility and necessity of such a choice, since it is much easier to stamp a standard charter.
But let’s take for example the following condition: the heir of the founder of an LLC can always receive the value of the share of the deceased founder (though after 6-12 months, when this value will be zero). The law establishes that the entry of an heir into the affairs of the company as an equal participant in an LLC is possible a) without the consent of other participants; b) with the consent of other participants.
Where does this lead? If your company is rapidly developing, you have a dominant position (the share of the authorized capital is more than 50%), and your business partners claim more, then it is extremely tempting to “remove” you if the charter stipulates that the heirs enter only with the consent of the remaining participants.
But on the other hand, if the heirs of the participants are such in their business qualities that one should stay away from them, then this same provision of the charter can lead to the collapse of the company. And there are dozens of such alternative provisions.
3. Select a bank to open a current account, after registering and registering with the tax office, open a current account (for more details, see Shevchuk D.A. Banking operations. - M.: GrossMedia: ROSBUKH, 2007).
4. Determine the schemes of financial and economic operations and develop (entrust the development to a specialist) forms of basic agreements and contracts, including labor ones, taking into account tax optimization.
d) Creation of a commercial organization
· holding a general meeting of the initiative group, i.e. future founders;
· conclusion of a constituent agreement or agreement on the creation of a joint-stock company;
· approval of the charter (based on the developed project);
· drawing up the minutes of the general meeting of founders;
· payment of state fees for registering an organization;
· payment (formation) of at least 50% of the authorized capital (fund);
· transfer of all necessary documents to the registration authority
· receipt of registered documents from the registration authority;
· notarization of the required number of copies of constituent documents;
· registration of the organization with funds, State Statistics Committee;
· obtaining a tax registration certificate from the tax office;
· notarization of signatures of organization leaders on bank cards;
· opening a current account in a bank.
These are the main stages of creating a commercial organization. Creating a non-profit organization, including a public one, differs slightly from this process.
e) Constituent documents of a legal entity
Of the stages of creating a business organization listed above, one of the most labor-intensive and responsible is the preparation of constituent documents and state registration. The procedure for conducting them is regulated by Articles 51, 52, 53 and 54 of the Civil Code of the Russian Federation.
Article 52 of the Civil Code of the Russian Federation states:
1. A legal entity acts on the basis of the charter or the constituent agreement and charter, or only the constituent agreement. In cases provided for by law, a legal entity that is not a commercial organization may act on the basis of the general regulations on organizations of this type.
The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants).
A legal entity created in accordance with this Code by one founder acts on the basis of a charter approved by this founder.
2. The constituent documents of a legal entity must determine the name of the legal entity, its location, the procedure for managing the activities of the legal entity, and also contain other information provided by law for legal entities of the corresponding type. The constituent documents of non-profit organizations and unitary enterprises, and in cases provided for by law and other commercial organizations, must define the subject and goals of the activities of a legal entity. The subject and certain goals of the activities of a commercial organization may be provided for by the constituent documents even in cases where this is not mandatory by law.
In the constituent agreement, the founders undertake to create a legal entity, determine the procedure for joint activities for its creation, the conditions for transferring their property to it and participation in its activities. The agreement also determines the conditions and procedure for the distribution of profits and losses between participants, management of the activities of a legal entity, and the withdrawal of founders (participants) from its composition.
3. Changes in constituent documents become effective for third parties from the moment of their state registration, and in cases established by law, from the moment the body carrying out state registration is notified of such changes. However, legal entities and their founders (participants) do not have the right to refer to the lack of registration of such changes in relations with third parties who acted in accordance with these changes.
A number of provisions of this article require clarification.
The article names either the charter, or the constituent agreement and charter, or only the agreement as constituent documents. A legal entity created by one founder acts on the basis of a charter approved by this founder. This means that it is inadmissible to require other documents (for example, a founder’s decision), which, unfortunately, is often practiced. Registration authorities do not have the right, at their own will, to establish a list of documents required for registration of a legal entity and, based on it, to delay registration.
It is noteworthy that the article indicates the possibility of action by a legal entity - a non-profit organization on the basis of the general provisions on organizations of this type. Consequently, individual constituent documents are not required for its registration.
Paragraph 2 of the article requires serious study (especially in practical activities). It says what information should be contained in the constituent documents. Ignoring them can lead to both an undeniable refusal to register a legal entity and certain complications in the process of its activities. At the same time as paragraph 1 of Article 52, one should be guided by the laws for legal entities of the corresponding type.
The constituent agreement must be concluded deliberately, since in relation to various types of legal entities, the legislator determines its terms in a number of cases dispositively. To a lesser extent this also applies to charters. Therefore, mechanical copying of other people's documents, which is very common, is undesirable.
Although according to clause 3 of Art. 52 of the Civil Code, changes in constituent documents become effective from the moment of their state registration (or from the moment of notification of the registering authority); they apply to relations with third parties who acted in accordance with these changes even in the absence of their registration: in these cases, legal entities and their founders (participants) has no right to refer to lack of registration.
An interesting provision in paragraph 3 is that changes to the constituent documents become effective from the above-mentioned moment for third parties. It allows us to conclude that changes are mandatory for the legal entity itself and its founders (participants) even before their registration.
Article 53 of the Civil Code of the Russian Federation regulates the composition and procedure for the activities of the bodies of a legal entity, which are necessarily reflected in the constituent documents:
1. A legal entity acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law, other legal acts and constituent documents.
The procedure for appointing or electing bodies of a legal entity is determined by law and constituent documents.
2. In cases provided for by law, a legal entity may acquire civil rights and assume civil responsibilities through its participants.
3. A person who, by virtue of the law or the constituent documents of a legal entity, acts on its behalf must act in the interests of the legal entity he represents in good faith and reasonably. It is obliged, at the request of the founders (participants) of a legal entity, unless otherwise provided by law or agreement, to compensate for losses caused by it to the legal entity.
Thus, in the Civil Code there is no special rule regarding the legal capacity of a legal entity, however, in Art. 53 of the Civil Code, the legislator determines the procedure for acquiring civil rights by a legal entity - this can be done through its bodies, and in cases provided for by law - through participants (this procedure for acquiring rights is provided, for example, in relation to partnerships).
Clause 3 of Article 53 of the Civil Code contains requirements regarding the behavior of a person acting on behalf of a legal entity: his actions must be conscientious and reasonable. This criterion suffers from a certain degree of uncertainty, but it focuses on showing the maximum amount of attention and care to the interests of the represented person in order to avoid liability in the form of compensation for losses caused to the legal entity.
No less important are issues relating to the name and location of a legal entity; they are regulated by Article 54 of the Civil Code of the Russian Federation:
1. A legal entity has its own name, which contains an indication of its organizational and legal form. The names of non-profit organizations, as well as unitary enterprises and, in cases provided for by law, other commercial organizations must contain an indication of the nature of the activity of the legal entity.
2. The location of a legal entity is determined by the place of its state registration, unless otherwise established in the constituent documents of the legal entity in accordance with the law.
3. The name and location of a legal entity are indicated in its constituent documents.
4. A legal entity that is a commercial organization must have a corporate name.
A legal entity whose business name is registered in accordance with the established procedure has the exclusive right to use it.
A person who unlawfully uses someone else’s registered company name, at the request of the owner of the right to the company name, is obliged to stop using it and compensate for the losses caused.
The procedure for registration and use of company names is determined by law and other legal acts in accordance with this Code.
In paragraph 1 of this article it is emphasized that a legal entity in its name contains an indication of its organizational and legal form, and unitary enterprises, in cases provided for by law, other commercial organizations and non-profit organizations - an indication of the nature of the activity. The latter specifically focuses on the legal capacity of these legal entities and, as it were, warns participants in civil transactions about the inadmissibility of legal ties with them that go beyond its limits. Here we can assume that the counterparty of a legal entity, given such a name, must obviously know about the illegality of the action being performed.
As stated in paragraph 4 of the article, a legal entity that is a commercial organization must have a company name. Within the meaning of this paragraph, such a name is not necessarily registered, but it can be registered, and then the legal entity becomes the bearer of the exclusive right to use it, that is, third parties can use it only with the consent of the copyright holder - otherwise they are obliged at the request of the owner the right to a company name to stop using it and compensate for damages caused.
It is characteristic that the trade name by the Civil Code refers to the means of individualization of a legal entity and its products, which are part of the intellectual property of the organization (C. 139 of the Civil Code of the Russian Federation).
In cases and in the manner established by the Civil Code and other laws, the exclusive right (intellectual property) of a citizen or legal entity to the results of intellectual activity and equivalent means of individualization of a legal entity, individualization of products, work performed or services (company name, trademark, service mark, etc.). The use of the results of intellectual activity and means of individualization, which are the object of exclusive rights, can be carried out by third parties only with the consent of the copyright holder.
On the basis of constituent documents, state registration of an organization is carried out, the procedure of which is determined by Article 51 of the Civil Code of the Russian Federation:
1. A legal entity is subject to state registration with the justice authorities in the manner determined by the law on registration of legal entities. State registration data, including for commercial organizations, business name, is included in the unified state register of legal entities, open to the public.
Violation of the procedure established by law for the formation of a legal entity or non-compliance of its constituent documents with the law entails refusal of state registration of the legal entity. Refusal of registration based on the inexpediency of creating a legal entity is not permitted.
Refusal of state registration, as well as evasion of such registration, can be appealed in court.
2. A legal entity is considered created from the moment of its state registration.
This article determines the procedure for registering a legal entity with the justice authorities, with the inclusion of data on state registration in the unified state register of legal entities, open to the public.
Thus, refusal to register is permissible only if the procedure for forming a legal entity established by law is violated or its constituent documents do not comply with the law. Refusal on other grounds or evasion of registration is illegal and can be appealed in court. Thus, abuses on the part of officials carrying out registration must be eliminated, since the possibility of claims for compensation for damage caused by unlawful actions of the relevant body is not excluded (see for more details Shevchuk D.A. Creating your own company: A professional approach. - M. : GrossMedia: ROSBUKH, 2007).
2.7.1 Small business status
First of all, it should be noted that the legislation currently in force in the Russian Federation does not provide for such an organizational and legal form as a small enterprise. A small enterprise can be a joint-stock company, an LLC, or a general partnership. But it cannot be defined in the charter as a small enterprise. This concept is used, as a rule, to distinguish from the total number of commercial enterprises those that need (are entitled to) financial or other support from the state, as representatives of small businesses.
Depending on the number of employees, enterprises are divided into small, small, medium and large. In some countries, other criteria are used to divide enterprises according to quantitative parameters: volume of turnover, amount of profit (income), volume of initial capital, volume of assets. In accordance with the Law of the Russian Federation “On State Support of Small Business,” small enterprises can be legal entities (commercial organizations) of any organizational and legal form (cooperatives, partnerships, limited liability companies, closed joint stock companies, including those with purely Russian or mixed capital):
· in the authorized capital of which the share of participation of the Russian Federation, constituent entities of the Russian Federation, public and religious organizations (associations), charitable and other foundations does not exceed 25 percent; the share owned by one or more legal entities that are not small businesses must not exceed 25 percent,
· the maximum number of employees employed on the basis of civil contracts for the reporting period is set as follows:
industry 100 people
· construction 100 people
· transport 100 people
· agriculture 60 people
· scientific and technical sphere 60 people
· wholesale trade 50 people
· retail trade and consumer services for the population of 30 people
· in other industries and in other types of activities 50 people
For newly created small enterprises, it seems that special emphasis should be placed on the procedure for determining the average number of employees of an enterprise in order to classify a given enterprise as a small enterprise and receive appropriate benefits.
Firstly, you need to know that the average headcount includes both full-time employees of the enterprise (including part-time workers) and non-employees (performing work under a contract and other civil contracts), including persons working part-time, taking into account the actual time worked, as well as employees of representative offices, branches and other separate divisions of a small enterprise.
Secondly, the average headcount is taken into account for the enterprise on an accrual basis from the beginning of the year, and only if it is not exceeded against the limit value can the enterprise have appropriate benefits as a small enterprise.
EXAMPLE 1
During the quarter, the average number of employees of the enterprise was 104 people.
For the first half of the year - 97 people.
In this case, the enterprise, not having the right to benefits as a small enterprise in the first quarter, at the end of the year for the half year, however, acquired the right to such benefits for the entire period.
Thus, if the enterprise has met the conditions for complete exemption from income tax, then the tax paid for the first quarter must be returned to it based on the results of work for the first half of the year.
EXAMPLE 2
For the first quarter, the average number of employees was 97 people.
In the first half of the year it exceeded 100 people.
In this case, an enterprise exempt from income tax based on the results of the first quarter, based on the results for the first half of the year, must fully pay off the budget for the entire period from the beginning of the year.
In the same order, the results of the enterprise’s work and its calculations with the budget for income tax for 9 months and the reporting year are considered.
When an enterprise is engaged in only one type of activity, then problems do not arise. But today there are practically no such enterprises, and enterprises are forced to engage in various types of activities. How to be in this case?
In accordance with current legislation, multi-industry enterprises are classified as small in terms of the number of employees, corresponding to the type of activity that brings in the largest share of total revenue from the sale of products, works and services.
After the introduction of the Tax Code, there is no need to seriously talk about benefits for small businesses. The Tax Code, without directly repealing those laws and regulations that provided such benefits, determined their invalidity as acts not included in the tax legislation system.
| |
(1 ratings, on average: 5,00 out of 5) 
Loading...
